Testimony of POGO's Danielle Brian, on the EPA National Ombudsman's Office before the Senate Committee Environment and Public Works

I want to thank you for asking me to testify today on the EPA National Ombudsman's Office, and the brazen attempts spanning two Administrations of EPA management to weaken, and ultimately destroy, that office. The Project On Government Oversight (POGO) investigates, exposes, and seeks to remedy systemic abuses of power, mismanagement, and subservience by the federal government to powerful special interests. Founded in 1981, POGO is a politically-independent, nonprofit watchdog that strives to promote a government that is accountable to the citizenry.

POGO first became aware of a problem when citizens from Lake Township,Ohio, brought the Industrial Excess Landfill (IEL) Superfund site to our attention more than five years ago. From the beginning, citizens, public officials, and independent scientists have raised legitimate questions about conflicts of interest, inappropriate testing methods, quality of site characterization, and adequacy of the methods of remediation selected by the EPA for the site clean-up. Because of these issues, citizens from the community had attempted to gain a National Ombudsman review of the IEL. Their request was denied - not by the National Ombudsman, but by the Environmental Protection Agency (EPA) itself. When we petitioned the EPA National Ombudsman's office to review the site, our request was also denied - again by Administrator Carol Browner, not by the Ombudsman. It took repeated requests from POGOand Representative Tom Sawyer over almost an entire year to get top EPA management to overturn their decision to prevent Ombudsman Robert Martin from reviewing the site. The mere fact that the Ombudsman was not allowed to decide for himself whether or not the case was worthy, but instead had to receive approval from both the head of the Superfund Office as well as the Administrator, made a mockery of the independence of the office.

We decided to look at other EPA regions around the country to see if the problems at IEL were unique. Unfortunately, we found that they were not. We learned about the Shattuck site inDenver,Colorado; the Brio site in Harris County, Texas; about McFarland,California;Tarpon Springs,Florida, and on and on. The communities affected by these sites had all come to view the EPA not only as unresponsive to their concerns, but as active partners with the polluters. And the only place left to consider the concerns of these communities was the National Ombudsman's office. Against the odds, in these and other cases the Ombudsman was able to make all proceedings public as well as conclude or begin the process of resolving longstanding disputes.

Despite the obstacles, the National Ombudsman's Office has been remarkably effective at getting the EPA to review its decisions and correct its mistakes. Not only did the Ombudsman offer the communities successful resolutions to their particular troubles, he gave them reason to believe that sometimes the government can do the right thing. Unfortunately, the success of the Ombudsman's work embarrassed the EPA, and has ultimately resulted in an effort by the EPA to undermine that Office. I find it remarkable that so much effort has gone into silencing the Ombudsman's office, when this office can only make recommendations - they cannot overturn EPA decisions.

Our concern over the Ombudsman's lack of independence led us to suggest to EPA top management in November 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 was necessary, the EPA found that a covert one was. EPA Management promptly convened a behind-closed-doors EPA committee on the National Ombudsman "problem." Why was an internal EPA management committee created to change a process that is lauded by the public and their elected officials?

Since that time, interference by the management of EPA into the Ombudsman's work has occurred again and again, culminating in the total dismantling of the office. At one point, EPA established a network of part-time Regional Ombudsmen - approximately 20% of the time they were supposed to be Ombudsmen while 80% of the time they were working for the very bureaucracy whose decisions they were supposed to be evaluating. This move clearly revealed a lack of understanding by EPA management of the purpose of an Ombudsman office.

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 he finds.

It must be noted that hostility to this office began under a Democratic Administration, and continued under a Republican one. Good Ombudsman work is welcomed by the communities, and even the Potentially Responsible Parties (PRPs), but never by the management whose decisions he is scrutinizing.

We are here today because S. 606 has been introduced to provide the Ombudsman's Office statutory authority. This step is absolutely essential given the EPA's history, and especially given Administrator Christine Todd Whitman's decision to raid the office and move the files to the Inspector General. The Ombudsman's Office has been closed simply because Robert Martin was doing his job despite the liabilities under which he was forced to work - a tiny and shrinking staff, repeated pressure from management not to take on cases, and constant efforts to further limit his authority.

In addition to this legislation, the Whistleblower Protection Act Amendments, S. 995, would give the Ombudsman necessary protections to carry out his job responsibilities. Were these amendments in effect today, Robert Martin would have had legal protection from the EPA's attempts to dismantle his office simply because he did his job. Amazingly, being fired for doing ones job is only one of many inexcusable loopholes that have made the law irrelevant. I urge all the Members of this Committee who have not yet become co-sponsors to support this important legislation.

The Government Accounting Office (GAO) examined four other agencies with ombudsman programs for its report on the status of EPA's Ombudsman: the Agency for Toxic Substances and Disease Registry, the Food and Drug Administration, the Federal Deposit Insurance Corporation, and the Internal Revenue Service. All of these ombudsman programs have independence from the agency within which they are organizationally situated and some have control over budgetary and staffing resources. These agencies also all have Inspectors General, though none of their ombudsman programs are under the aegis of, or in any way affiliated with, the respective Inspectors General.

We believe in the independence of the Inspectors General as well as the Ombudsman's Offices. They each serve important, but different functions. According to the legislative history of the creation of the Inspectors General, Broad as it is, the Inspector and Auditor General's mandate is not unlimited. Issues requiring substantive or technical expertise will often fall outside his proper sphere. For instance, if the Inspector and Auditor General at the Environmental Protection Agency received a report that a new type of sewage treatment system inMilwaukeewas not functioning according to specifications, resulting in dangerous levels of pollution, the Inspector and Auditor General could quite properly decide that responsibility for handling the issue rested elsewhere and make the "proper referral."

In fact, the office to which the Inspector General could make that "proper referral" would likely be the National Ombudsman's office. An IG does not have the technical expertise to evaluate a proposed remediation and determine whether the EPA's decision-making is sound. In other words, the IG is set up to investigate waste, fraud, and abuse, and audit programs. The Ombudsman, on the other hand, is the proper office to receive complaints, either from the community or the PRPs, that a cleanup plan is somehow inadequate. After an investigation, the Ombudsman can evaluate the validity of this plan - something the IG would not and could not do.

It is particularly that the EPA have an independent Ombudsman Office because of a regulation in the Superfund Act that prevents a remedy decision from being challenged until after the remedy has been implemented. This rule, CERCLA section 113(h), eliminates the option of challenging a remedy through the courts that, for example, the community thinks will further endanger its health or safety. While the rule was adopted to prevent parties from tying up a good remedy in the courts, it also serves, in reality, to allow the EPA to implement a bad remedy.

Although the entities responsible for the pollution, the PRPs, cannot challenge a remedy through this route, the EPA allows them to conduct the studies and provide the data that influence the design of a site remedy. Citizens in Superfund communities have not been allowed that same opportunity. The Ombudsman is the only recourse for citizens who feel that the EPA has not adequately protected their health or the environment.

These concerns are not new. It was thirteen years ago that the Senate Subcommittee on Superfund issued a bipartisan report which found that, statistically, the involvement of the PRP's led to cheaper remedies that did not necessarily protect health and safety. The report stated, "This data raises the disturbing possibility that EPA, in an effort to achieve settlements or to compel responsible parties to pay for cleanups, may be sacrificing health and environmental standards as required by law."

We are releasing today the results of our investigation into the EPA's handling of Superfund sites, using the IEL site inOhioas a case study. It is entitled, "A Partial Approach to Clean-up: EPA Mishandles Superfund Investigations." We conclude that because the EPA has come to rely so heavily on the PRPs to help develop the cleanup plan for the sites, the system is skewed to favor the cheapest, but not necessarily best, remedy. At the same time, the communities are essentially powerless to protect their interests. As a result, the National Ombudsman's office is the last recourse for communities to ensure that a thorough and adequate investigation of the site has taken place and the best interests of the community have been considered.

Legislation such as S. 606 is essential for the independence of this critical function. However, we have come to believe that although the Ombudsman's Offices reviewed by the GAO did report to Senior Administrators of their Agencies or Departments, the plan in S. 606 to move the EPA's Office of the Ombudsman to the Administrator's Office will not work. From our work investigating the oversight offices at other agencies, including the Department of Energy and the Nuclear Regulatory Commission, POGO has determined that genuine independent oversight cannot proceed from within the bureaucracy it evaluates. In this case, we would encourage the Committee to consider placing a National Ombudsman's Office in either a White House office or as part of the Legislative Branch, perhaps attached to the General Accounting Office. We also believe that the legislation should include whistleblower protections for those who come to the Ombudsman with information.

We would be happy to work with you on this issue, and to answer any questions you may have.