June 25, 2002

Thank you Mr. Chairman and distinguished members of the Committee for the opportunity to appear and testify before you in connection with S. 606, the pending Ombudsman reauthorization Act of 2002. 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

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.
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).
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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 .
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.
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.
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.
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. § 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, § 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, § 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. § 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 § 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. § 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, § 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, § 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 § 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. § 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. § 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.