New Investigation:

How Lax EPA Oversight Enabled Jackson's Water Crisis.


Written Testimony For the Senate Environment and Public Works Committee Hearing Regarding S. 1763, the Ombudsman Reauthorization Act of 1999

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 has come across several 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) Superfund site to our attention. From the beginning, concerns about the handling of the site have been voiced 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 the National Ombudsman, Robert 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.

We decided to look at other EPA regions around the country to see if these problems with the EPA were unique. Unfortunately, we found that they were not. We learned about the Shattuck site in Denver, 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. In fact, it appears that all too often the EPA has even broken the law in its rush to appease the polluting companies: withholding documents, holding secret meetings, lying to Members of Congress and to the community. And the only thing that stands between the EPA and the polluters is the National Ombudsman's office.

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 has resulted in an effort by the EPA to undermine that Office. Not only is the Office ridiculously underfunded, but one of the more insidious efforts to drain power from the National Ombudsman is the emergence of the EPA's Regional Ombudsman program. This is an utterly flawed concept where a person wears two hats - part of their day they are expected to be an independent arbiter, and the other part of their day they return to being an employee for the very people whose work they are evaluating and investigating.

The attempts to undermine the independence of the Headquarters Ombudsman do not stop here. Our concern over this lack of independence led us to suggest to EPA top management in 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 United States 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. Responding to complaints from within, the EPA convened a behind-closed-doors 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?

It is clear that the office of the National Ombudsman has come under constant attack by EPA top management because he 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 continue this 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 established guidance regarding the functioning of an Ombudsman's Office, and that guidance comes from the American Bar Association and the U.S. 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 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, his decisions would become suspect, compromising the legitimacy and integrity of the office.

In 1998, POGO was proud to give Mr. Martin our "Beyond the Headlines" award. This is an award designed to recognize a politician, federal employee, journalist or activist who has made significant contributions towards public policy improvements without regards for personal gain. I have seen over the past two years how hard the EPA has made it for Mr. Martin to do his job. Not only must he enter into highly contentious situations and work to identify the appropriate resolution for a site, but he must do this while constantly keeping an eye on his back. It seems that Mr. Martin's ability to cut through bureaucratic stonewalling has earned him a fair number of enemies at his own agency - which is unfortunately what you would expect for an Ombudsman who is doing his job well. Senator Allard's legislation will help to preserve the National Ombudsman's ability to call it as he sees it.

The people of Denver, Colorado are remarkably lucky in that they have a Senator who was willing to attend not just one, but three public hearings held by the Ombudsman's Office. I can't think of another instance that I'm aware of where a Senator has devoted so much of his personal time to helping on an issue like this. Senator Allard and his fellow elected officials have demonstrated their support of the vital role that the National Ombudsman has played in working toward a safe resolution of various Superfund sites. But not every Superfund community has such a supportive Senator. These other communities need to know that the Ombudsman's Office will be there for them. S. 1763 will help to 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.