[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]



 
         RECENT DEVELOPMENTS IN THE EPA OFFICE OF THE OMBUDSMAN
=======================================================================

                             JOINT HEARING

                               before the

          SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS

                                and the

                         SUBCOMMITTEE ON HEALTH

                                 of the

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 17, 2002

                               __________

                           Serial No. 107-123

                               __________

      Printed for the use of the Committee on Energy and Commerce









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                    COMMITTEE ON ENERGY AND COMMERCE

               W.J. ``BILLY'' TAUZIN, Louisiana, Chairman

MICHAEL BILIRAKIS, Florida           JOHN D. DINGELL, Michigan
JOE BARTON, Texas                    HENRY A. WAXMAN, California
FRED UPTON, Michigan                 EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida               RALPH M. HALL, Texas
PAUL E. GILLMOR, Ohio                RICK BOUCHER, Virginia
JAMES C. GREENWOOD, Pennsylvania     EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California          FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia                 SHERROD BROWN, Ohio
RICHARD BURR, North Carolina         BART GORDON, Tennessee
ED WHITFIELD, Kentucky               PETER DEUTSCH, Florida
GREG GANSKE, Iowa                    BOBBY L. RUSH, Illinois
CHARLIE NORWOOD, Georgia             ANNA G. ESHOO, California
BARBARA CUBIN, Wyoming               BART STUPAK, Michigan
JOHN SHIMKUS, Illinois               ELIOT L. ENGEL, New York
HEATHER WILSON, New Mexico           TOM SAWYER, Ohio
JOHN B. SHADEGG, Arizona             ALBERT R. WYNN, Maryland
CHARLES ``CHIP'' PICKERING,          GENE GREEN, Texas
Mississippi                          KAREN McCARTHY, Missouri
VITO FOSSELLA, New York              TED STRICKLAND, Ohio
ROY BLUNT, Missouri                  DIANA DeGETTE, Colorado
TOM DAVIS, Virginia                  THOMAS M. BARRETT, Wisconsin
ED BRYANT, Tennessee                 BILL LUTHER, Minnesota
ROBERT L. EHRLICH, Jr., Maryland     LOIS CAPPS, California
STEVE BUYER, Indiana                 MICHAEL F. DOYLE, Pennsylvania
GEORGE RADANOVICH, California        CHRISTOPHER JOHN, Louisiana
CHARLES F. BASS, New Hampshire       JANE HARMAN, California
JOSEPH R. PITTS, Pennsylvania
MARY BONO, California
GREG WALDEN, Oregon
LEE TERRY, Nebraska
ERNIE FLETCHER, Kentucky

                  David V. Marventano, Staff Director

                   James D. Barnette, General Counsel

      Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                 ______

          Subcommittee on Environment and Hazardous Materials

                    PAUL E. GILLMOR, Ohio, Chairman

JAMES C. GREENWOOD, Pennsylvania     FRANK PALLONE, Jr., New Jersey
GREG GANSKE, Iowa                    EDOLPHUS TOWNS, New York
JOHN SHIMKUS, Illinois               SHERROD BROWN, Ohio
HEATHER WILSON, New Mexico           GENE GREEN, Texas
VITO FOSSELLA, New York              KAREN McCARTHY, Missouri
  (Vice Chairman)                    THOMAS M. BARRETT, Wisconsin
ROBERT L. EHRLICH, Jr., Maryland     BILL LUTHER, Minnesota
STEVE BUYER, Indiana                 LOIS CAPPS, California
GEORGE RADANOVICH, California        MICHAEL F. DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire       JANE HARMAN, California
JOSEPH R. PITTS, Pennsylvania        HENRY A. WAXMAN, California
MARY BONO, California                PETER DEUTSCH, Florida
GREG WALDEN, Oregon                  JOHN D. DINGELL, Michigan,
LEE TERRY, Nebraska                    (Ex Officio)
ERNIE FLETCHER, Kentucky
W.J. ``BILLY'' TAUZIN, Louisiana
  (Ex Officio)

                                  (ii)

                                     

                                     

                         Subcommittee on Health

                  MICHAEL BILIRAKIS, Florida, Chairman

JOE BARTON, Texas                    SHERROD BROWN, Ohio
FRED UPTON, Michigan                 HENRY A. WAXMAN, California
JAMES C. GREENWOOD, Pennsylvania     TED STRICKLAND, Ohio
NATHAN DEAL, Georgia                 THOMAS M. BARRETT, Wisconsin
RICHARD BURR, North Carolina         LOIS CAPPS, California
ED WHITFIELD, Kentucky               RALPH M. HALL, Texas
GREG GANSKE, Iowa                    EDOLPHUS TOWNS, New York
CHARLIE NORWOOD, Georgia             FRANK PALLONE, Jr., New Jersey
  Vice Chairman                      PETER DEUTSCH, Florida
BARBARA CUBIN, Wyoming               ANNA G. ESHOO, California
HEATHER WILSON, New Mexico           BART STUPAK, Michigan
JOHN B. SHADEGG, Arizona             ELIOT L. ENGEL, New York
CHARLES ``CHIP'' PICKERING,          ALBERT R. WYNN, Maryland
Mississippi                          GENE GREEN, Texas
ED BRYANT, Tennessee                 JOHN D. DINGELL, Michigan,
ROBERT L. EHRLICH, Jr., Maryland       (Ex Officio)
STEVE BUYER, Indiana
JOSEPH R. PITTS, Pennsylvania
W.J. ``BILLY'' TAUZIN, Louisiana
  (Ex Officio)

                                 (iii)







                            C O N T E N T S

                               __________
                                                                   Page

Testimony of:
    Bialek, Mark, Office of Counsel, U.S. Environmental 
      Protection Agency..........................................    19
    Fabricant, Robert E., General Counsel, U.S. environmental 
      Protection Agency..........................................     9
    Malinowski, Heather, Pinellas-Pasco Technical Assistance 
      Grant......................................................    66
    Martin, Robert...............................................    58
    Stephenson, John B., Director of Environmental Issues, U.S. 
      General Accounting Office..................................    12
Material submitted for the record by:
    Sperling, Robert L., prepared statement of...................    85

                                  (v)

  


         RECENT DEVELOPMENTS IN THE EPA OFFICE OF THE OMBUDSMAN

                              ----------                              


                         TUESDAY, JULY 16, 2002

              House of Representatives,    
              Committee on Energy and Commerce,    
              Subcommittee on Environment and Hazardous    
               Materials Joint with Subcommittee on Health,
                                                    Washington, DC.
    The subcommittees met, pursuant to notice, at 10 a.m., in 
room 2123, Rayburn House Office Building, Hon. Paul E. Gillmor 
(Chairman, Subcommittee on Environment and Hazardous Materials) 
presiding.
    Members present from the Subcommittee on Environment and 
Hazardous Materials: Representatives Gillmor, Shimkus, Pallone, 
Barrett, Luther, and DeGette.
    Members present from the Subcommittee on Health: 
Representatives Bilirakis, Norwood, Brown, Barrett, Pallone, 
Stupak, and Wynn.
    Staff present: Jerry Couri, policy coordinator, Amit 
Sachdev, majority counsel; Hollyn Kidd, legislative clerk, and 
Dick Frandsen, minority counsel.
    Mr. Gillmor. The subcommittee will come to order. And 
today's hearing is being called at the request of Mr. Bilirakis 
to explore recent events in the Office of EPA's Ombudsman, and 
it is actually a joint hearing of the Environment and Hazardous 
Materials Subcommittee and the Health Subcommittee of which Mr. 
Bilirakis is the chairman.
    The Office, which Congress established in 1984, was a 4-
year project thought to build a bridge between concerned 
citizens and government bureaucracy; bringing the government 
processes back to the people. Internal and external events over 
the past several years have created a public liaison that has 
been eager to be responsive to the public. But not necessarily 
responsible to it. And a true Ombudsman is both.
    While personalities have dominated some of this past 
history, the heart of the alleged problems within the 
Ombudsman's Office can be trace of the question of whether a 
neutral entity can act independently within an agency that 
supports it. People who have previously served in that Office 
have asserted that it cannot.
    Last year, the General Accounting Office issued a report 
detailing how the Ombudsman functions. In April of this year, 
Administrator Whitman moved the Ombudsman function into the 
statutorily-independent EPA Office of Inspector General. Some 
believe that a conflict of interest still exists with the 
Ombudsman's function housed within the Inspector General's 
Office. I think that assessment is premature, but I'm eager to 
hear their suggestion for the proper way to handle this matter.
    We will not reach all the answers this morning, but I hope 
we understand the importance of breaking down the barriers of 
bureaucratic indifference and opening these processes to free 
and open input, creativity, and constructive criticism in 
defense of human health and the environment.
    Even though Congress has not authorized the Hazardous Waste 
Ombudsman Office in 14 years, EPA has found this function 
important enough to administratively kept it alive all this 
time. And whether we agree on the proper place to put the 
Ombudsman, we must not shut out the public from the important 
decisions on their local areas and environments.
    I look forward to hearing from our very distinguished panel 
of witnesses and to thank them for taking the time to be with 
us during a very hectic time on Capitol Hill. They possess the 
greatest background and experience to help us begin to answer 
some of the questions that will help us maintain an independent 
Ombudsman function within the EPA.
    Though some may want to get into the personalities or past 
disputes behind this issue, we must remember that it was 
Congress that thought up this role and we should ensure that it 
operates responsively to the public and responsively to the tax 
payers.
    Additionally, I'm very interested in the GAO statement and 
what they have found in respect to the Ombudsman Office 
operations within the Office of Solid Waste and Emergency 
Response. We must seek the lessons of the past if we're going 
to avoid problems in the future.
    And I'd like to recognize the gentleman from New Jersey, 
the ranking member of the Environment Subcommittee, Mr. 
Pallone.
    Mr. Pallone. Thank you, Mr. Chairman, and I see Chairman 
Bilirakis here as well. This is a joint subcommittee hearing. I 
just wanted to mention, before we began, a couple of process 
things, Mr. Chairman, because I am concerned that we just found 
out about this hearing last week and I think that we have to 
pay more attention to the process so that the minority is aware 
when the subcommittee is actually going to have hearings in a 
little more timely fashion.
    In addition, our side, I don't know about the Republican 
side, but the Democrats didn't receive a copy of the testimony 
from the EPA until about 6:30, 7 o'clock last night. And if I 
can mention, Mr. Chairman, the committee rules say that we're 
supposed to receive copies of the witnesses' testimony 2 
working days in advance of the hearing. I'm not pressing this 
too much, because I do think that it's important that we have 
the hearing. We have been asking to have a hearing on the 
Ombudsman for some time. But we do have to do a better job in 
terms of notifying the minority about when the hearing is going 
to take place and also getting the testimony from the EPA in 
the future.
    The other thing I wanted to say, Mr. Chairman, is that I 
really think that we need to move as a subcommittee on some of 
the legislation. There was an article in today's Congress Daily 
that talked about effective implementation of the Brownfields 
Law which is you know we were very successful in working on a 
bipartisan basis to put that together. And the EPA is now 
touting it as a great program. I'd like to see the same thing 
done with some of the other issues. We've had a hearing on the 
safe drinking water, which I thought was a good hearing. And I 
think that's another area where maybe we could work together 
and try to achieve a bill that would pass and go to the 
President just like the Brownfields.
    There are a number of these things I think need attention 
and even though it's already July, you know we still have a few 
months that maybe we can work together and try to move some of 
these important bills that even the administration has said 
that they'd like to see moved.
    With that, I want to say that I am relieved that we are 
finally having this hearing on the EPA Ombudsman. The job of 
the Ombudsman cannot be lightly as their role is to serve as a 
public advocate and receive inquiries and complaints from the 
public regarding the administration of RCRA and the Superfund 
program. The Ombudsman positions were created to be independent 
and objective, basically, an objective voice of reason for the 
public. After concerns arose in October of 2000 over the 
adequacy of the independence of the Office of Ombudsman from 
the Office of Solid Waste and Emergency Response, a GAO 
investigation was completed. And the investigation discovered 
that among other things the national and regional offices 
suffer from not only a structural lack of independence, but 
limited control over their budgetary resources as well.
    In response to these findings, the EPA issued a memorandum 
relocating the Office of Ombudsman to the Office of the 
Inspector General. After legal challenges and public 
opposition, the EPA Inspector General's Office received the 
functions of the Ombudsman in April of this year.
    Mr. Chairman, I have to say that I don't think that anyone 
would quarrel with the difficulties in establishing true 
independence for the Ombudsman function. But what myself and 
many of my colleagues have a problem with is that I believe 
that effectively the EPA under Republican Administration has 
essentially dissolved the Ombudsman function when the 
Department ordered it transferred to the Inspector General 
because it's eliminating the position description, removing the 
ability to find problems in select cases, and restricting 
communication from the outside world of the EPA.
    I don't understand, Mr. Chairman, what the EPA feels it has 
to hide. You know, I think that I have to come to the 
assumption that they're trying to hide something if they feel 
that they have to essentially dissolve or destroy the 
Ombudsman's function. Somehow they see it as a threat to the 
Agency or something. That's the only conclusion I can come to. 
And I think that it's very sad that the Agency lost Bob Martin 
in the process. I see that he is in the audience with us today. 
I think he did a good job and you know was very independent, 
was sort of the epitome of what independence was supposed to be 
about.
    But beyond Bob, the public has lost the position in 
general. They've lost their voice when it comes to cleaning up 
Superfund sites, which is one of the biggest concerns that I 
have right now, among other things.
    Bob Martin actually states in his testimony, which I guess 
he has written testimony, that without a true EPA National 
Ombudsman function, communities are at risk from an unchecked 
bureaucracy. And I really believe that. I believe that unless 
this is established again and changed in a way that it truly 
becomes an independent voice, we are going to lose in our 
communities the ability to effectively check on the EPA. That's 
what Ombudsman was supposed to be. I don't think it functions 
in that capacity anymore and hopefully this hearing will shed 
some light on that. So I'm glad we're having the hearing. Thank 
you.
    Mr. Gillmor. I thank the gentleman. Regarding the 
testimony, we're sorry you didn't get it until 6:30 last night, 
but I checked with my staff and that's when we got it. So you 
received it the same time the majority did.
    Now I'll recognize the chairman of the Health Subcommittee, 
Mr. Bilirakis.
    Mr. Bilirakis. Thank you, Mr. Chairman, and let me begin by 
expressing my thanks to you and Chairman Tauzin for scheduling 
today's hearing. They both know how strongly I feel about the 
need for an independent Ombudsman function at the Environmental 
Protection Agency, and I'm grateful they worked patiently with 
me to arrive at this point, particularly after several months 
of trying. We're not here today, I trust and hope, to finger 
point or to engage in partisan bickering about environmental 
policy. We're here today because we have a responsibility to 
our constituents. We have a responsibility to ensure that those 
families living in communities burdened with hazardous waste 
sites are able to participate in decisions affecting their 
health and safety. An Ombudsman guarantees public access to 
this process.
    An Ombudsman can only be as effective as he or she is 
independent. Nowhere is this as evident as it is in the EPA. 
Mr. Pallone used the words ``the Office was created to be 
independent and objective.'' And I certainly agree. I was one 
of the few members of this committee that was here back in the 
mid 1980's when we worked into the late hours of the night 
working on the Superfund and the creation of the Ombudsman 
Office.
    In its report, ``EPA's National Regional Ombudsmen Do Not 
Have Sufficient Independence,'' the General Accounting Office 
found the EPA Ombudsman did not have the necessary level of 
independence. As a result of the GAO's subsequent 
recommendations, EPA decided to transfer the Ombudsman function 
to the Office of Inspector General.
    Does the EPA's decision to relocate the Ombudsman to the 
OIG provide true independence? That's really the question of 
this hearing. I wish that we could have explored this issue 
before the transfer was implemented. We tried. God knows we 
tried. But I do look forward to the opportunity to hear from 
the EPA and ask questions about this transfer.
    I will say obviously that Ms. Whitman made an effort, I 
think, to abide by what she thought were the concerns that the 
GAO raised. Certainly, no effort had been made prior to that 
point in time.
    This past Saturday I sponsored a town meeting with 
Inspector General Nikki Tinsley and acting Ombudsman Mary 
``Peggy'' Boyer in my home community of Tarpon Springs, 
Florida. While I appreciated their willingness to come down and 
to listen to the concerns of area residents, my constituents 
raised some valid concerns about the role of the Ombudsman in 
the OIG, and I anticipate all of us exploring those issues 
today.
    I'm particularly pleased that my constituent, Heather 
Malinowski, came to Washington on such short notice. If you 
think you got short notice, she even got shorter notice, and 
had to incur the expenses of the airlines when you have to 
catch a flight at the last minute. But anyhow, she did come to 
Washington on such short notice to testify this morning. Mrs. 
Malinowski has years of experience in dealing with the EPA. I 
would say that she's reflective, I think, of so many people out 
there, so many Americans who really care about the process, 
want to be involved in the process. I know I spent much of my 
life listening to the term ``you can't fight city hall.''
    Well, I'm here to tell you that she's emblematic of people 
who can fight city hall and do a pretty darn good job of it. 
And not necessary to beat City Hall, because that's not what 
it's all about. But fighting them to make sure that your 
concerns and the community's concerns are heard and paid 
attention to. And she's done that. So she's going to do a 
better job than I can in explaining how important an 
independent Ombudsman is for the Tarpon Springs community and 
obviously for the other similar communities around the country.
    I believe the testimony of our witnesses will highlight how 
critical it is to have an independent Ombudsman at EPA. That 
function is a valuable tool for citizens across the United 
States. It was a creation of Congress and ought to stay within 
the intent of this legislative body in the true function of 
independence that's vital for the effective operation of the 
office.
    Thank you very much, Mr. Chairman.
    Mr. Gillmor. The Chair recognizes the gentleman from 
Michigan for an opening statement.
    Mr. Stupak. Thank you, Mr. Chairman, and thank you for 
holding this hearing today on the recent developments in the 
EPA Office of Ombudsman. I'm afraid that the discourse about 
the Office of Ombudsman at EPA is just one more indication that 
this administration places little value on protecting the 
public from hazardous materials and Superfund pollution. There 
have been several disturbing news reports recently about the 
lack of the administration support for Superfund cleanups.
    An EPA Inspector General's report issued recently says that 
33 Superfund sites in 18 States are no longer getting funds 
from a special polluter pays cleanup fund that is running out 
of money.
    Dozens of other States are getting some cleanup and long 
term remediation money, but less than regional officials say is 
needed. The Bush Administration wants to shift funding for the 
33 cleanup projects to the Government's general fund from the 
Superfund trust fund, meaning tax payers will now pay for 
cleanups. But payments out of the general fund would require 
Congressional approval, which we all know would most certainly 
slow down the process or halt work entirely at some sites.
    The 1980 Superfund Law states very clearly, that polluters 
should pay to clean up their own environmental messes. This 
special fund came from taxes on chemical and petroleum 
companies. But those taxes expired in 1995 and the majority 
party has not allowed a renewal of those taxes.
    The fund will now dwindle to a projected $28 million at the 
end of next year. At one time, this fund contained $3.6 billion 
for cleanup work. Congress has not renewed the taxes which fund 
this account and President Bush now opposes the renewal of the 
taxes. My home State of Michigan is one of the States affected 
by this decision. President Bush has indicated time and time 
again that the environment is not his priority.
    Time and time again I'm surprised and astounded at the 
lengths he will go to be a supporter of big business to cut the 
life out of environmental programs. It's no wonder that things 
over at the EPA are in disarray. And it's no wonder we have 
them in front of us on Superfund issues. I hope to learn more 
from the hearing today whether or not the important Ombudsman 
function at EPA can stay alive and well under the Agency's 
transfer plan.
    I'm concerned that this Ombudsman dispute is just one more 
indication that the EPA under the management of this 
administration continues to ignore its mission of protecting 
the public from the environmental hazards created by industrial 
pollution.
    Mr. Chairman, I yield back the balance my time and I look 
forward to an opportunity to question the witnesses today.
    Mr. Gillmor. The gentleman from Georgia, Mr. Norwood.
    Mr. Norwood. Thank you very much, Mr. Chairman, and I'm 
appreciative of you having this hearing. It appears to me that 
in a nonpartisan way all of us certainly agree that the 
Ombudsman should be independent. That's what this hearing is 
about. That's what we're trying to get done. We're trying to 
make certain that individual and that group of individuals is 
independent of EPA which is what Congress wants. I would plead 
with the members of this committee, if they could simply leave 
their politics out of this just for a little while. Perhaps we 
can actually get something done with this. It does not help one 
bit anybody in this room for the attack dogs to use this forum 
to be political. We need to be here for the very reason Mr. 
Bilirakis pointed out.
    And with that, Mr. Chairman, I have a very long statement, 
I would just as soon submit it for the record and let's move 
forward to the questioning of the witnesses and let's move 
forward to the purpose of this hearing which is to determine if 
or if not the Ombudsman is independent and if not, why not. 
Thank you.
    Mr. Gillmor. Thank you. The gentleman's statement, in its 
entirety, will be made a part of the record. The gentleman from 
Illinois, Mr. Shimkus.
    Excuse me. The distinguished ranking member of the Health 
Subcommittee. He snuck in when I was looking the other way. I'm 
pleased to recognize Mr. Brown from Ohio.
    Mr. Brown. As my remarks will be brief, as we know the 
recent decision from Administrator Whitman to place to Office 
of the Ombudsman within the Office of Inspector General has 
sparked enormous controversy and has caused many to question, 
particularly my friend from Florida has done, Mr. Bilirakis, 
whether the Ombudsman can continue to fulfill his or her 
mission in EPA. Last month the Senate Environment Public Works 
Committee held a hearing. The General Accounting Office offered 
testimony based on investigation of position they have 
previously done for Chairman Bilirakis. This is what they said 
about the Administrator Whitman's decision, ``if EPA intends to 
have an Ombudsman function that is consistent with the way the 
position is typically defined in the Ombudsman community, 
placing the national Ombudsman within the OIG it has not 
achieved that objective.'' I'm inclined to strongly agree with 
this statement.
    I'm concerned, like many others, that the Administrator has 
sought to marginalize the Ombudsman because the Office has done 
too good a job at pointing out the Agency's shortcomings and 
not to make it more independent as she has claimed. It seems to 
run pretty rampant through this administration, the problems of 
secrecy, the problems of loyalty to the point of never speaking 
out. And I think this is an another example of how this 
administration has gone in a wrong direction that way.
    I welcome all our witnesses today and I look forward to 
their testimony on this sensitive issue. I hope that we can 
remedy this problem. Thank you, Mr. Chairman.
    Mr. Gillmor. Thank you, Mr. Brown. The gentleman from 
Illinois, Mr. Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman. I agree with a lot of 
the statements. I think that my colleagues on the other side, 
actually I've been pleased with a lot of stuff the EPA has 
done, but I always wondered when I was in the legislative 
branch when the executive branch would fall into the hands of 
our own party, would I be as vigilant in some of my statements 
toward the EPA and some of the other Federal Agencies that I 
had criticized. And it's good to see, and we'll get a chance to 
talk to and visit with Bob Martin, who I worked with in the 
previous administration. I found him to be a man of honor and 
integrity and I look forward to talking with him today.
    My position is very simple. The Ombudsman should be--we are 
the Ombudsman for our citizens when we don't have a credible 
Ombudsman in an agency. And so if we have a credible Ombudsman 
in an agency, then that takes some of the burden off of us to 
try to fight all the myriad of battles we have to fight for our 
citizens through all the various agencies.
    And really I'm pretty appalled that the treatment of Mr. 
Martin while on official business than on sick leave and coming 
back to have the locks changed, the files taken out, when I've 
always known him to be a conscientious individual. So that's 
what my focus will be.
    Let's restore an office in the EPA of an Ombudsman that has 
some real teeth, that our citizens can go to. That we can have 
help in trying to rectify issues and problems. No one is 
perfect and no agency is perfect and we all need each others 
help.
    So Mr. Chairman, to both Chairmen, I look forward to this 
hearing and I think we can move in the right direction if we 
work together to try to identify the problems and move the 
debate into a positive direction of having a very effective 
Ombudsman. And I yield back my time.
    Mr. Gillmor. The gentleman yields back. If there are no 
other members wishing to make opening statements, the Chair 
will now call up the first panel.
    [Additional statement submitted for the record follows:]
Prepared Statement of Hon. Ed Towns, a Representative in Congress from 
                         the State of New York
    Thank you, Chairman Bilirakis and Chairman Gilmor for holding this 
joint subcommittee hearing to examine the Environmental Protection 
Agency's decision to move the Office of the Ombudsman from the Office 
of Solid Waste and Emergency Response to the Office of Inspector 
General. I must begin by stating my ``New York bias'' as detailed in a 
letter to the EPA Administrator less than a month ago. In the letter, I 
joined several of my colleagues in urging that Mr. Martin, the now 
former Ombudsman in the Office of Solid Waste and Emergency Response, 
be allowed to return to EPA to complete the cases that remained open 
when he left EPA in late April. I believe that it is critical that Mr. 
Martin return to complete these cases because they involve potentially 
debilitating health problems. There is no time to waste.
    The situation surrounding the World Trade Center site in New York 
is a prime example of why it is important that Mr. Martin return to 
complete his cases. Prior to his separation from EPA, Mr. Martin 
amassed an outstanding record of service on behalf of his constituents, 
the American people. As the Ombudsman in OSWER, Mr. Martin was able to 
bring attention and pressure on EPA to reverse their decision not to 
clean residences covered in soot and dust by the events of 9/11. As you 
may recall, shortly after the tragic events of 9/11, the EPA 
Administrator declared the air and water in lower Manhattan safe. 
Through the efforts of Ombudsman Martin, Senator Clinton, Congressman 
Nadler and others, the EPA reversed their decision and is now making 
limited clean-up services available to residents upon request. This 
would not have happened if not for the work of Ombudsman Martin. It 
would not have happened if EPA was left to their own devices. In fact, 
EPA's response still has not gone far enough. To date, EPA is only 
cleaning visible dust and they are testing for asbestos. Were the 
clouds of debris that spread out over lower Manhattan and downtown 
Brooklyn made solely of asbestos? What was in those clouds and why 
isn't EPA specifically testing for those compounds? Moreover, the focus 
of their efforts has been exclusive to the area immediately surrounding 
``Ground Zero''. The residue from the Twin Towers showered down on 
Brooklyn. I will be sending a letter to Administrator Whitman in the 
next fourteen days requesting that testing be done on buildings and 
residences in downtown Brooklyn. While a great deal of time has passed 
since this tragedy occurred, I believe that there are clean-up issues 
outstanding that could still pose long-term health risks. We must take 
whatever steps necessary to prevent this from happening.
    What will my options be if the Administrator denies my request? 
Could I contact the Office of Inspector General and request 
intervention by the Ombudsman? Under the restructured EPA, the 
Ombudsman cannot decide whether or not this is a case worth taking. If 
the Ombudsman is supposed to act as a gatekeeper when other avenues 
into EPA have failed, shouldn't this position have true independence? 
This was the conclusion of the GAO's study of this question. If the GAO 
agrees that there is an independence problem, why would the 
Administrator place the Ombudsman in an Office that is clearly not 
independent? There seems to be a belief that the Ombudsman will be 
independent based on the independence of the Office of Inspector 
General. While this almost seems logical, one need only look at the 
fact that the Office of Inspector General has an audit responsiblity 
for the Ombudsman's Office. How can there be true independence? If the 
Ombudsman cannot make independent decisions on staffing or anything 
else for that matter how can the Ombudsman be independent?
    I would ask the EPA to answer these questions as well as others 
that I will submit for the record and I would also ask that the 
Administrator reconsider the relocation of the Ombudsman Office to the 
Inspector General's Office, a decision which I believe has the exact 
opposite effect of what was intended; that is, it moves the EPA further 
away from its constituency, the American people.

    Mr. Gillmor. Our first panel consists of Mr. Robert 
Fabricant, the General Counsel of the U.S. Environmental 
Protection Agency; John Stephenson, the General of the General 
Accounting Office's Division of Natural Resources and the 
Environment; and Mr. Mark Bialek, who is a counsel in the 
Office of Inspector General in the U.S. Environmental 
Protection Agency.
    Gentleman, we have your written testimony and we'll make it 
part of the record. If each of you would like to take 5 minutes 
to summarize your remarks it would be greatly appreciated. Our 
committee is eager to begin asking you questions and we'll do 
so once each of you has presented your testimony.
    Mr. Fabricant.

    STATEMENTS OF ROBERT E. FABRICANT, GENERAL COUNSEL, U.S. 
 ENVIRONMENTAL PROTECTION AGENCY; JOHN B. STEPHENSON, DIRECTOR 
 OF ENVIRONMENTAL ISSUES, U.S. GENERAL ACCOUNTING OFFICE; AND 
 MARK BIALEK, OFFICE OF COUNSEL, U.S. ENVIRONMENTAL PROTECTION 
                             AGENCY

    Mr. Fabricant. Thank you, Mr. Chairman. Good morning, Mr. 
Chairman and members of the subcommittee. My name is Robert 
Fabricant and I am the General Counsel for the U.S. 
Environmental Protection Agency. I appear today to discuss the 
move of EPA's Office of Solid Waste and Emergency Response 
Ombudsman function from OSWER to the Office of the Inspector 
General.
    I would like to open my remarks by commenting briefly on 
the history of the OSWER Ombudsman function. In 1984, the 
Congress amended the Resource Conversation and Recovery Act and 
required EPA to establish an Ombudsman function to address 
individual complaints and requests for information about the 
Agency's programs and policies under the Solid Waste Disposal 
Act and to make appropriate recommendations to the 
Administrator. The amendments specifically provided that the 
Office of Ombudsman would sunset as of November 1988. After the 
statutory authority for the Ombudsman expired in 1988, EPA, as 
a matter of policy, continued to maintain an Ombudsman function 
within OSWER. In 1991, EPA expanded the function by broadening 
the scope of OSWER programs or activities over which the 
Ombudsman could receive complaints or requests for information.
    In addition, as various Superfund administrative reforms 
undertaken by EPA in 1995, Regional Ombudsman positions were 
established in the EPA Regional Offices. The Regional Ombudsman 
addressed Superfund issues and, depending on the region, other 
issues including RCRA, UST, and chemical emergency prevention 
and preparedness.
    Since its original establishment in 1984, the OSWER 
Ombudsman function has, like other Agency activities and 
offices, undergone occasional review and reorganization. 
Starting in 2000, OSWER had begun to actively and substantially 
reevaluate the Ombudsman function and consider proposals to 
further reorganize the activity. That work continued into 2001, 
when EPA was informed that GAO had initiated its own inquiry in 
the ombudsman function. In light of GAO's ongoing study, the 
Agency suspended its internal review to await GAO's report and 
recommendations. At the time of the GAO study, the Ombudsman 
reported to the Deputy Assistant Administrator for OSWER, who 
was responsible for supervisory, performance, and budget 
decisions of the Ombudsman function.
    In September 2001, GAO issued its report, entitled ``EPA's 
National and Regional Ombudsman Do Not Have Sufficient 
Independence.'' GAO indicated that it had reviewed the 
Ombudsman function in response to concerns about institutional 
barriers to the fulfillment of that function. GAO noted that an 
effective Ombudsman must have both actual and apparent 
independence from any person who may be the subject of a 
complaint or inquiry. GAO also observed that the OSWER 
Ombudsman function responsible for addressing complaints and 
inquiries about OSWER programs and activities was not 
independent of the organizational unit it was responsible for 
investigating.
    Therefore, GAO recommended that EPA take steps to 
strengthen the independence of the OSWER Ombudsman function by 
locating it outside of OSWER. EPA reviewed and carefully 
considered the GAO report and recommendations. GAO's main 
concern was that the independence of the Ombudsman function was 
jeopardized by the location of the function within OSWER. This 
echoed additional comments echoed this that we received from 
Congress and others. Although recommending that the Ombudsman 
function be located outside of OSWER, the GAO report did not 
recommend any specific location for that function. In meetings 
to consider GAO's recommendations, EPA officials considered 
various options for relocating the Ombudsman function, 
including the Office of the Administrator, the Office of the 
Inspector General, and my office, the Office of General 
Counsel.
    After weighing these options and considering staff 
recommendations, EPA concluded that OIG offered the greatest 
opportunity to ensure the independence of the Ombudsman 
function. OIG's operations, budgeting and hiring decisions are 
made independent of any influence or control by OSWER. In 
addition, OIG already had considerable expertise and resources 
dedicated to auditing and investigatory activities and a well 
established professional reputation.
    OIG is by statute an independent organization within the 
Agency with an excellent record of objectivity in evaluating 
the interests of all parties and ensuring that inquiries 
receive appropriate and thorough answers. The Inspector General 
agreed that the Ombudsman function would complement activities 
within OIG and agreed to accept the function. Exercising 
administrative and managerial discretion, EPA decided on 
November 27, 2001, to relocate the Ombudsman function in OIG.
    In January 2002, then Ombudsman, Robert Martin, and an 
organization known as the Government Accountability Project, 
filed suit in the United States District Court for the District 
of Columbia to enjoin EPA's decision to move the Ombudsman 
function to OIG. On April 12, 2002, the Court dismissed the 
Ombudsman's lawsuit. The decision to move the Ombudsman 
function became effective on April 13, 2002. It's my 
understanding that Mr. Martin resigned from EPA effective April 
29, 2002. And although the Federal District lawsuit challenging 
the decision to move the Ombudsman function was dismissed, 
administrative claims relating to the Ombudsman function are 
pending before the U.S. Department of Labor and the United 
States Office of Special Counsel.
    EPA is currently responding to that administrative 
litigation. Questions about the continuing activities of the 
Ombudsman function since April 13 will be addressed in 
testimony by representatives of EPA's OIG. Mr. Bialek will take 
that portion of the testimony. Thank you for the opportunity to 
appear before you today and I'll be happy to respond to any 
questions you have.
    [The prepared statement of Robert E. Fabricant follows:]
   Prepared Statement of Robert E. Fabricant, General Counsel, U.S. 
                    Environmental Protection Agency
    Good morning, Mr. Chairman and Members of the Subcommittees. My 
name is Robert Fabricant and I am the General Counsel for the 
Environmental Protection Agency. I appear today to discuss the move of 
EPA's Office of Solid Waste and Emergency Response (OSWER) ombudsman 
function from OSWER to the Office of the Inspector General (OIG).
    I would like to open my remarks by commenting briefly on the 
history of the OSWER ombudsman function. In 1984, Congress amended the 
Resource Conservation and Recovery Act (RCRA) and required EPA to 
establish an ombudsman function to address individual complaints and 
requests for information about the Agency's programs and policies under 
the Solid Waste Disposal Act and to make appropriate recommendations to 
the Administrator. The amendments specifically provided that the Office 
of Ombudsman would cease to exist as of November 1988. After the 
statutory authority for the ombudsman expired in 1988, EPA, as a matter 
of policy, continued to maintain an ombudsman function within OSWER. In 
1991, EPA expanded the function by broadening the scope of OSWER 
programs or activities over which the ombudsman could receive 
complaints or requests for information.
    In addition, as part of various Superfund administrative reforms 
undertaken by EPA in 1995, regional ombudsman positions were 
established in the EPA Regional Offices. The regional ombudsmen 
addressed Superfund issues and, depending on the region, other issues 
including RCRA, underground storage tanks (UST), and chemical emergency 
prevention and preparedness.
    Since its original establishment in 1984, the OSWER ombudsman 
function has, like other Agency activities and offices, undergone 
occasional review and reorganization. Starting in 2000, OSWER had begun 
to actively and substantially reevaluate the ombudsman function and 
consider proposals to further reorganize the activity. That work 
continued into 2001, when EPA was informed that the General Accounting 
Office (GAO) had initiated its own inquiry into the OSWER ombudsman 
function. In light of GAO's ongoing study, the Agency suspended its 
internal review to await GAO's report and recommendations. At the time 
of GAO's study, the ombudsman reported to the Deputy Assistant 
Administrator for OSWER, who was responsible for supervisory, 
performance, and budget decisions of the ombudsman function.
    In September 2001, GAO issued its report, entitled ``EPA's National 
and Regional Ombudsmen Do Not Have Sufficient Independence.'' GAO 
indicated that it had reviewed the ombudsman function in response to 
concerns about ``institutional barriers'' to the fulfillment of the 
ombudsman function. GAO noted that an effective ombudsman must have 
both actual and apparent independence from any person who may be the 
subject of a complaint or inquiry. GAO also observed that the OSWER 
ombudsman function, responsible for addressing complaints and inquiries 
about OSWER programs and activities, was not independent of the 
organizational unit it was responsible for investigating. GAO 
recommended that EPA take steps to strengthen the independence of the 
OSWER ombudsman function by locating it outside of OSWER.
    EPA reviewed and carefully considered GAO's report and 
recommendations. GAO's main concern that the independence of the 
ombudsman function was jeopardized by the location of the function 
within OSWER echoed comments that EPA had received from members of 
Congress and others. Although recommending that the ombudsman function 
be located outside of OSWER, GAO's report did not recommend any 
specific location for the function. In meetings to consider GAO's 
recommendations, EPA officials considered various options for 
relocating the ombudsman function, including the Office of the 
Administrator, the Office of Inspector General (OIG), and my office, 
the Office of General Counsel.
    After weighing these options and considering staff recommendations, 
EPA concluded that OIG offered the greatest opportunity to ensure the 
independence of the ombudsman function. OIG's operations, budgeting, 
and hiring decisions are made independent of any influence or control 
by OSWER. In addition, OIG already had considerable expertise and 
resources dedicated to auditing and investigatory activities and a 
well-established professional reputation. OIG is by statute an 
independent organization within the Agency with an excellent record of 
objectivity in evaluating the interests of all parties and ensuring 
that inquiries receive appropriate and thorough answers. The Inspector 
General agreed that the ombudsman function would complement other 
activities within OIG and agreed to accept the function. Exercising 
administrative and managerial discretion, EPA decided on November 27, 
2001 to relocate the ombudsman function to OIG.
    In January 2002, then ombudsman Robert Martin and an organization 
known as the Government Accountability Project (GAP), filed suit in the 
United States District Court for the District of Columbia to enjoin 
EPA's decision to move the ombudsman function to OIG. On April 12, 
2002, the Court dismissed the ombudsman's lawsuit. The decision to move 
the ombudsman function to OIG became effective on April 13, 2002. I 
understand that Mr. Martin resigned from EPA effective April 29, 2002. 
Although the Federal District Court lawsuit challenging the decision to 
move the ombudsman function was dismissed, administrative claims 
relating to the ombudsman function have been asserted by certain 
current or former EPA employees, including claims before the United 
States Department of Labor and the United States Office of Special 
Counsel. EPA is responding to that administrative litigation. Questions 
about the continuing activities of the ombudsman function since April 
13 will be addressed in testimony by representatives of EPA's OIG.
    Thank you for the opportunity to appear before you today. I am 
happy to respond to the Subcommittee's questions at this time.

    Mr. Gillmor. Thank you very much, Mr. Fabricant.
    Mr. Stephenson of the GAO.

                 STATEMENT OF JOHN B. STEPHENSON

    Mr. Stephenson. Thank you, Mr. Chairman, and members of the 
subcommittees. I'll briefly summarize my statement by 
describing the standards for Ombudsman that have been published 
by professional organizations and then comparing the EPA's 
reorganized Ombudsman function to those standards.
    Let me stress that these observations are preliminary 
because the EPA has not yet developed operating policies and 
procedures or an official job description for the position. My 
observations today are based on limited work we have done in 
response to a request from Representative Diana DeGette.
    Based on our work to date, we believe placement of the 
Ombudsman function within the OIG Office raises several issues 
that should be considered. While there are no Federal standards 
or requirements specific to the operation of the Ombudsman 
offices, several professional organizations do provide 
standards of practice, relevant to Ombudsmen who deal with 
inquiries from the public as is the case here.
    These standards incorporate the core principals of 
independence, impartiality, and confidentiality. According to 
guidelines published by the American Bar Association, key 
indicators of independence include control over budget and use 
of resources and the power to appoint, supervise and remove 
staff. Standards of practice published by another professional 
group, the Ombudsman Association, advocate that ombudsmen 
report to the highest authority in the organization. These 
standards also stress the importance of impartiality and 
confidentiality.
    We found that the Ombudsman at Federal agencies we reviewed 
for our report last year did reflect these standards. For 
example, at the Federal Deposit Insurance Corporation and the 
Food and Drug Administration, the Ombudsmen had their own 
budget and reported directly to the highest level of the 
agency. We recommended in our report that EPA take actions 
intended to increase consistency with the standards including 
locating the Ombudsman outside the Office of Solid Waste, the 
organizational unit that is subject to the Ombudsman's 
investigations. Some months later EPA announced the 
reorganization relocating the National Ombudsman to the IG's 
Office. While this reorganization raises several issues, the 
most fundamental is intent.
    If the Congress and EPA intend to have an Ombudsman 
function that is consistent with the way the position is 
typically defined, then placing the function within the IG's 
Office will not achieve that objective. This is because the 
role of the Ombudsman typically includes responsibilities such 
as helping to informally resolve program related issues and 
mediating disagreements between the agency and the public. 
Assigning these responsibilities to a position within the IG's 
Office would conflict with the Inspector General's Act, which 
prohibits the transfer of such program operating 
responsibilities to an Inspector General.
    On the other hand, to omit these responsibilities as EPA 
has apparently done, would result in establishing a position 
labeled Ombudsman that is not fully consistent with the 
function as it is typically defined. Further, while EPA's 
reorganization removes the National Ombudsman from the Office 
of Solid Waste, it may not result in the degree of structural 
and functional independence that is consistent with the 
professional standards. For example, according to EPA authority 
for budget and staffing for its Ombudsman will rest with a 
newly created Assistant Inspector General and the IG, not the 
Ombudsman.
    Also according to EPA, the Inspector General, not the 
Ombudsman, will have the authority to select and prioritize his 
or her own case load independent of other needs. In addition, 
the EPA has not yet addressed the concerns we raised in our 
report about the independence of the ten Regional Ombudsman, 
whose positions are collateral duties still within the Office 
of Solid Waste.
    Finally, the OIG could no longer independently audit or 
investigate the Ombudsman's activities as he or she can at 
other Federal agencies were the functions are separate.
    Conversely, there may be a conflict if the Ombudsman 
receives a case that has already been reviewed by the Inspector 
General.
    Mr. Chairman, that concludes my oral statement. I will be 
happy to answer any questions you or any member of the 
subcommittee may have.
    [The prepared statement of John B. Stephenson follows:]
 Prepared Statement of John B. Stephenson, Director, Natural Resources 
            and Environment. U.S. Genmeral Accounting Office
    Mr. Chairman and Members of the Subcommittee: I am pleased to be 
here today to discuss our work relating to the national hazardous waste 
ombudsman function at the Environmental Protection Agency (EPA). EPA's 
hazardous waste ombudsman was first established within the Office of 
Solid Waste and Emergency Response as a result of the 1984 amendments 
to the Resource Conservation and Recovery Act.1 Recognizing 
that the ombudsman provides a valuable service to the public, EPA 
retained the ombudsman function as a matter of policy after its 
legislative authorization expired in 1988. Over time, EPA expanded the 
national ombudsman's jurisdiction to include Superfund 2 and 
other hazardous waste programs managed by the Office of Solid Waste and 
Emergency Response and, by March 1996, EPA had designated ombudsmen in 
each of its 10 regional offices. While the national ombudsman's 
activities ranged from providing information to investigating the 
merits of complaints, in recent years, the ombudsman played an 
increasingly prominent role through his investigations of citizen 
complaints referred by Members of Congress. Legislation now pending 
before the Congress would reauthorize an office of the ombudsman within 
EPA.3
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    \1\ The Resource Conservation and Recovery Act governs the 
management of solid and hazardous waste.
    \2\ The Superfund program was established under the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 to 
clean up highly contaminated hazardous waste sites.
    \3\ See S. 606 and H.R. 1431, The Ombudsman Reauthorization Act of 
2001.
---------------------------------------------------------------------------
    In November 2001, the EPA Administrator announced that the 
ombudsman function would be reorganized, effective in January 
2002.4 Specifically, the agency announced that the national 
ombudsman would be relocated from the Office of Solid Waste and 
Emergency Response to the Office of Inspector General (OIG) and would 
address concerns across the spectrum of EPA programs, not just 
hazardous waste programs. The agency also retained the ombudsmen 
located in its regional offices. In response to a request letter from 
Representative Diana DeGette raising concerns about placing the 
national ombudsman within EPA's OIG, we have recently initiated work to 
examine various issues related to the reorganization.
---------------------------------------------------------------------------
    \4\ The transfer of the ombudsman function to EPA's Office of 
Inspector General actually took place on April 13, 2002, following the 
dismissal by a federal district court of a legal challenge to the 
reorganization.
---------------------------------------------------------------------------
    My testimony today, which is based on our 2001 report on EPA's 
ombudsman 5 and on the work now under way,

    \5\ U.S. General Accounting Office, Hazardous Waste: EPA's National 
and Regional Ombudsmen Do Not Have Sufficient Independence, GAO01813 
(Washington, D.C.; July 27, 2001).
---------------------------------------------------------------------------
 describes the professional standards for independence and 
        other key factors relevant to ombudsmen, including those 
        located within federal agencies; and
 provides our preliminary observations on issues raised by the 
        reorganization of EPA's ombudsman function.
    For our 2001 report, we examined relevant standards of practice, 
including those published by the American Bar Association (ABA), The 
Ombudsman Association, and the U.S. Ombudsman Association. We also 
looked at four federal agencies whose ombudsmen deal with inquiries 
from the public: the Agency for Toxic Substances and Disease Registry 
(an agency of the Department of Health and Human Services), the Federal 
Deposit Insurance Corporation, the Food and Drug Administration, and 
the Internal Revenue Service. In preparing this testimony, we met with, 
and obtained information from, key EPA officials involved in the 
reorganization of the agency's ombudsman function. However, because the 
agency has not yet developed detailed operating policies and procedures 
or an official description of the national ombudsman position within 
the OIG, and because we have only recently initiated work related to 
the reorganization, our observations are preliminary.
    In summary:
     Although there are no federal requirements or standards 
specific to the operation of ombudsman offices, several professional 
organizations have published standards of practice relevant to 
ombudsmen who deal with inquiries from the public. These standards 
incorporate the core principles of independence, impartiality, and 
confidentiality. For example, an effective ombudsman must have both 
actual and apparent independence from any person who may be the subject 
of a complaint or inquiry. According to ABA guidelines, key indicators 
of independence include a budget funded at a level sufficient to carry 
out the ombudsman's responsibilities; the ability to spend funds 
independent of any approving authority; and the power to appoint, 
supervise, and remove staff. The Ombudsman Association's standards of 
practice define independence as functioning independent of line 
management, and advocate that the ombudsman report to the highest 
authority in the organization. Impartiality requires ombudsmen to 
conduct inquiries and investigations in a manner free from initial bias 
and conflicts of interest. Confidentiality requires, with some 
exceptions, that ombudsmen not disclose, and not be required to 
disclose, any information provided in confidence. While federal 
agencies face some legal and practical constraints in implementing some 
aspects of these standards, ombudsmen at the federal agencies we 
reviewed for our 2001 report reflected aspects of the standards. For 
example, at the Federal Deposit Insurance Corporation, the Food and 
Drug Administration, and the Internal Revenue Service, the ombudsman's 
office had its own budget and reported directly to the head of the 
agency.
     If EPA intends to have an ombudsman function that is 
consistent with the way the position is typically defined in the 
ombudsman community, placing the national ombudsman within the OIG does 
not achieve that objective. Specifically, the role of an ombudsman 
typically includes program operating responsibilities, such as helping 
to informally resolve program-related issues and mediating 
disagreements between the agency and the public. Including these 
responsibilities in the national ombudsman's role within the OIG would 
likely conflict with the Inspector General Act, as amended, which 
prohibits the transfer of program operating responsibilities to the 
Inspector General; yet, omitting these responsibilities would result in 
establishing an ``ombudsman'' that is not fully consistent with the 
function as defined within the ombudsman community. Further, while 
EPA's reorganization removes the national ombudsman from the Office of 
Solid Waste and Emergency Response--whose programs the ombudsman is 
charged with investigating--it may not result in a degree of structural 
or functional independence that is consistent with professional 
standards for ombudsmen for several reasons.

 The national ombudsman, as the position is currently 
        envisioned, still will not be able to exercise independent 
        control over the budget and staff resources needed to implement 
        the function. According to EPA, authority for budget and 
        staffing for the national ombudsman function will rest with the 
        Assistant Inspector General for Congressional and Public 
        Liaison.
 Prior to the reorganization, the national ombudsman could 
        independently determine which cases to pursue; however, 
        according to EPA, the Inspector General has the overall 
        responsibility for the work performed by the Office, and no 
        single staff member--including the national ombudsman--has the 
        authority to select and prioritize his or her own caseload 
        independent of all other needs.
 In addition, the reorganization does not appear to address 
        concerns we raised in our 2001 report about the independence of 
        the regional ombudsmen, whose position is generally seen as a 
        collateral duty within EPA. They will continue to have a dual 
        role in fulfilling some ombudsman responsibilities while also 
        serving in line management positions, primarily within the 
        Superfund program.
    Finally, placing the ombudsman in the OIG could affect the 
activities of the Inspector General; for example, the OIG could no 
longer independently audit or investigate the ombudsman, as the OIG can 
at other federal agencies where the ombudsman function and the OIG are 
separate entities.
             relevant professional standards for ombudsmen
    Through the impartial and independent investigation of citizens' 
complaints, federal ombudsmen help agencies be more responsive to the 
public, including people who believe that their concerns have not been 
dealt with fully or fairly through normal channels. Ombudsmen may 
recommend ways to resolve individual complaints or more systemic 
problems, and may help to informally resolve disagreements between the 
agency and the public.
    While there are no federal requirements or standards specific to 
the operation of federal ombudsman offices,6 the 
Administrative Conference of the United States recommended in 1990 that 
the President and the Congress support federal agency initiatives to 
create and fund an external ombudsman in agencies with significant 
interaction with the public.7 In addition, several 
professional organizations have published relevant standards of 
practice for ombudsmen. Both the recommendations of the Administrative 
Conference of the United States and the standards of practice adopted 
by various ombudsman associations incorporate the core principles of 
independence, impartiality (neutrality), and confidentiality. For 
example, the ABA's standards 8 define these characteristics 
as follows:
---------------------------------------------------------------------------
    \6\ The federal Interagency Alternative Dispute Resolution Working 
Group will be developing guidance on standards of practice for federal 
ombudsmen, as recommended in a GAO report entitled, Human Capital: The 
Role of Ombudsmen in Dispute Resolution, GAO01466 (Washington, D.C.; 
Apr. 13, 2001).
    \7\ The Administrative Conference of the United States was an 
independent advisory agency in the executive branch that issued 
recommendations and statements on the improvement of the federal 
administrative process. The agency was terminated by the Treasury, 
Postal Service, and General Government Appropriations Act for fiscal 
year 1996.
    \8\ To help develop the standards, ABA's Sections of Administrative 
Law and Regulatory Practice and Dispute Resolution appointed a steering 
committee, which included representatives from several ombudsman 
associations: the Coalition of Federal Ombudsmen, The Ombudsman 
Association, the U.S. Ombudsman Association, and the University and 
College Ombuds Association.
---------------------------------------------------------------------------
     Independence--An ombudsman must be and appear to be free 
from interference in the legitimate performance of duties and 
independent from control, limitation, or penalty by an officer of the 
appointing entity or a person who may be the subject of a complaint or 
inquiry.
     Impartiality--An ombudsman must conduct inquiries and 
investigations in an impartial manner, free from initial bias and 
conflicts of interest.
     Confidentiality--An ombudsman must not disclose and must 
not be required to disclose any information provided in confidence, 
except to address an imminent risk of serious harm. Records pertaining 
to a complaint, inquiry, or investigation must be confidential and not 
subject to disclosure outside the ombudsman's office.
    Relevant professional standards contain a variety of criteria for 
assessing an ombudsman's independence, but in most instances, the 
underlying theme is that an ombudsman should have both actual and 
apparent independence from persons who may be the subject of a 
complaint or inquiry. According to ABA guidelines, for example, a key 
indicator of independence is whether anyone subject to the ombudsman's 
jurisdiction can (1) control or limit the ombudsman's performance of 
assigned duties, (2) eliminate the office, (3) remove the ombudsman for 
other than cause, or (4) reduce the office's budget or resources for 
retaliatory purposes. Other factors identified in the ABA guidelines on 
independence include a budget funded at a level sufficient to carry out 
the ombudsman's responsibilities; the ability to spend funds 
independent of any approving authority; and the power to appoint, 
supervise, and remove staff. The Ombudsman Association's standards of 
practice define independence as functioning independent of line 
management; they advocate that the ombudsman report to the highest 
authority in the organization.
    According to the ABA's recommended standards, ``the ombudsman's 
structural independence is the foundation upon which the ombudsman's 
impartiality is built.'' One aspect of the core principle of 
impartiality is fairness. According to an article published by the U.S. 
Ombudsman Association on the essential characteristics of an ombudsman, 
an ombudsman should provide any agency or person being criticized an 
opportunity to (1) know the nature of the criticism before it is made 
public and (2) provide a written response that will be published in 
whole or in summary in the ombudsman's final report.9
---------------------------------------------------------------------------
    \9\ Gottehrer, Dean M. and Hostina, Michael, ``Essential 
Characteristics of a Classical Ombudsman'' (U.S. Ombudsman Association, 
1998), http://www.usombudsman.org/References/Essential.pdf, (downloaded 
June 19, 2001).
---------------------------------------------------------------------------
    In addition to the core principles, some associations also stress 
the need for accountability and a credible review process. 
Accountability is generally defined in terms of the publication of 
periodic reports that summarize the ombudsman's findings and 
activities. Having a credible review process generally entails having 
the authority and the means, such as access to agency officials and 
records, to conduct an effective investigation. The ABA recommends that 
an ombudsman issue and publish periodic reports summarizing the 
findings and activities of the office to ensure its accountability to 
the public. Similarly, recommendations by the Administrative Conference 
of the United States regarding federal ombudsmen state that they should 
be required to submit periodic reports summarizing their activities, 
recommendations, and the relevant agency's responses.
    Federal agencies face legal and practical constraints in 
implementing some aspects of these standards because the standards were 
not designed primarily with federal agency ombudsmen in mind. However, 
ombudsmen at the federal agencies we reviewed for our 2001 report 
reflected aspects of the standards. We examined the ombudsman function 
at four federal agencies in addition to EPA and found that three of 
them--the Federal Deposit Insurance Corporation, the Food and Drug 
Administration, and the Internal Revenue Service--had an independent 
office of the ombudsman that reported to the highest level in the 
agency, thus giving the ombudsmen structural independence.10 
In addition, the ombudsmen at these three agencies had functional 
independence, including the authority to hire, supervise, discipline, 
and terminate their staff, consistent with the authority granted to 
other offices within their agencies. They also had control over their 
budget resources. The exception was the ombudsman at the Agency for 
Toxic Substances and Disease Registry, who did not have a separate 
office with staff or a separate budget. This ombudsman reported to the 
Assistant Administrator of the agency instead of the agency head.
---------------------------------------------------------------------------
    \10\ For example, the ombudsmen from the Food and Drug 
Administration and the Internal Revenue Service each reported to the 
Office of the Commissioner in their respective agencies.
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    issues raised by epa's reorganization of the ombudsman function
    In our July 2001 report, we recommended, among other things, that 
EPA modify its organizational structure so that the function would be 
located outside of the Office of Solid Waste and Emergency Response, 
whose activities the national ombudsman was charged with reviewing. EPA 
addresses this recommendation through its placement of the national 
ombudsman within the OIG, where the national ombudsman will report to a 
newly-created position of Assistant Inspector General for Congressional 
and Public Liaison. OIG officials also told us that locating the 
national ombudsman function within the OIG offers the prospect of 
additional resources and enhanced investigative capability. According 
to the officials, the national ombudsman will likely have a small 
permanent staff but will also be able to access OIG staff members with 
expertise in specific subject matters, such as hazardous waste or water 
pollution, on an as-needed basis. Further, OIG officials anticipate 
that the ombudsman will adopt many of the office's existing 
recordkeeping and reporting practices, which could help address the 
concerns we noted in our report about accountability and fairness to 
the parties subject to an ombudsman investigation.
    Despite these aspects of EPA's reorganization, several issues merit 
further consideration. First and foremost is the question of intent in 
establishing an ombudsman function. The term ``ombudsman,'' as defined 
within the ombudsman community, carries with it certain expectations. 
The role of an ombudsman typically includes program operating 
responsibilities, such as helping to informally resolve program-related 
issues and mediating disagreements between the agency and the public. 
Assigning these responsibilities to an office within the OIG would 
conflict with statutory restrictions on the Inspector General's 
activities. Specifically, the Inspector General Act, as amended, 
prohibits an agency from transferring any function, power, or duty 
involving program responsibilities to its OIG.11 However, if 
EPA omits these responsibilities from the position within the OIG, then 
it will not have established an ``ombudsman'' as the function is 
defined within the ombudsman community. In our April 2001 report, we 
noted that some federal experts in dispute resolution were concerned 
that among the growing number of federal ombudsman offices there are 
some individuals or activities described as ``ombuds'' or ``ombuds 
offices'' that do not generally conform to the standards of practice 
for ombudsmen.
---------------------------------------------------------------------------
    \11\ See 5 U.S.C. Appx. 3 Sec. 9(a)(2).
---------------------------------------------------------------------------
    A related issue is that ombudsmen generally serve as a key focal 
point for interaction between the government, or a particular 
government agency, and the general public. By placing the national 
ombudsman function within its OIG, EPA appears to be altering the 
relationship between the function and the individuals that make 
inquiries or complaints. Ombudsmen typically see their role as being 
responsive to the public, without being an advocate. However, EPA's 
reorganization signals a subtle change in emphasis: OIG officials see 
the ombudsman function as a source of information regarding the types 
of issues that the OIG should be investigating. Similarly, rather than 
issue reports to complainants, OIG officials expect that the national 
ombudsman's reports will be addressed to the EPA Administrator, 
consistent with the reporting procedures for other OIG offices. The 
officials told us that their procedures for the national ombudsman 
function, which are still being developed, could provide for sending a 
copy of the final report or a summary of the investigation to the 
original complainant along with a separate cover letter when the report 
is issued to the Administrator.
    Based on the preliminary information available from EPA, the 
reorganization raises other issues regarding the consistency of the 
agency's ombudsman function with relevant professional standards. For 
example, under EPA's reorganization, the national ombudsman will not be 
able to exercise independent control over budget and staff resources, 
even within the general constraints that are faced by federal agencies. 
According to OIG officials, the national ombudsman will have input into 
the hiring, assignment, and supervision of staff, but overall authority 
for staff resources and the budget allocation rests with the Assistant 
Inspector General for Congressional and Public Liaison. OIG officials 
pointed out that the issue our July 2001 report raised about control 
over budget and staff resources was closely linked to the ombudsman's 
placement within the Office of Solid Waste and Emergency Response. The 
officials believe that once the national ombudsman function was 
relocated to the OIG, the inability to control resources became much 
less significant as an obstacle to operational independence. They 
maintain that although the ombudsman is not an independent entity 
within the OIG, the position is independent by virtue of the OIG's 
independence.
    Despite the OIG's argument, we note that the national ombudsman 
will also lack authority to independently select and prioritize cases 
that warrant investigation. According to EPA, the Inspector General has 
the overall responsibility for the work performed by the OIG, and no 
single staff member--including the ombudsman--has the authority to 
select and prioritize his or her own caseload independent of all other 
needs. Decisions on whether complaints warrant a more detailed review 
will be made by the Assistant Inspector General for Congressional and 
Public Liaison in consultation with the national ombudsman and staff. 
EPA officials are currently reviewing the case files obtained from the 
former ombudsman, in part to determine the anticipated workload and an 
appropriate allocation of resources. According to OIG officials, the 
national ombudsman will have access to other OIG resources as needed, 
but EPA has not yet defined how decisions will be made regarding the 
assignment of these resources. Under the ABA guidelines, one measure of 
independence is a budget funded at a level sufficient to carry out the 
ombudsman's responsibilities. However, if both the ombudsman's budget 
and workload are outside his or her control, then the ombudsman would 
be unable to assure that the resources for implementing the function 
are adequate. Ombudsmen at other federal agencies must live within a 
budget and are subject to the same spending constraints as other 
offices within their agencies, but they can set their own priorities 
and decide how their funds will be spent.
    EPA has also not yet fully defined the role of its regional 
ombudsmen or the nature of their relationship with the national 
ombudsman in the OIG. EPA officials told us that the relationship 
between the national and regional ombudsmen is a ``work in progress'' 
and that the OIG will be developing procedures for when and how 
interactions will occur. Depending on how EPA ultimately defines the 
role of its regional ombudsmen, their continued lack of independence 
could remain an issue. In our July 2001 report, we concluded that the 
other duties assigned to the regional ombudsmen--primarily line 
management positions within the Superfund program--hamper their 
independence. Among other things, we cited guidance from The Ombudsman 
Association, which states that an ombudsman should serve ``no 
additional role within an organization'' because holding another 
position would compromise the ombudsman's neutrality. According to our 
discussions with officials from the Office of Solid Waste and Emergency 
Response and the OIG, the investigative aspects of the ombudsman 
function will be assigned to the OIG, but it appears that the regional 
ombudsmen will respond to inquiries and have a role in informally 
resolving issues between the agency and the public before they escalate 
into complaints about how EPA operates. For the time being, EPA 
officials expect the regional ombudsmen to retain their line management 
positions. 12
---------------------------------------------------------------------------
    \12\ EPA officials told us that they are piloting a new approach in 
three regional offices in which the ombudsmen will be increasing their 
level of involvement in the ombudsman role, although the individuals 
will continue to have other responsibilities.
---------------------------------------------------------------------------
    Finally, including the national ombudsman function within the 
Office of the Inspector General raises concerns about the effect on the 
OIG, even if EPA defines the ombudsman's role in a way that avoids 
conflict with the Inspector General Act. By having the ombudsman 
function as a part of the OIG, the Inspector General could no longer 
independently audit and investigate that function, as is the case at 
other federal agencies where the ombudsman function and the OIG are 
separate entities. As we noted in a June 2001 report on certain 
activities of the OIG at the Department of Housing and Urban 
Development, under applicable government auditing standards the OIG 
cannot independently and impartially audit and investigate activities 
it is directly involved in.13
---------------------------------------------------------------------------
    \13\ U.S. General Accounting Office, HUD Inspector General: Actions 
Needed to Strengthen Management and Oversight of Operation Safe Home, 
GAO01794 (Washington, D.C.: June 29, 2001)
---------------------------------------------------------------------------
    A related issue concerns situations in which the national ombudsman 
receives an inquiry or complaint about a matter that has already been 
investigated by the OIG. For example, OIG reports are typically 
transmitted to the Administrator after a review by the Inspector 
General. A process that requires the Inspector General to review an 
ombudsman-prepared report that is critical of, or could be construed as 
reflecting negatively on, previous OIG work could pose a conflict for 
the Inspector General. OIG officials are currently working on detailed 
procedures for the national ombudsman function, including criteria for 
opening, prioritizing, and closing cases, and will have to address this 
issue as part of their effort.
    In conclusion, Mr. Chairman, we believe that several issues need to 
be considered in EPA's reorganization of its ombudsman function. The 
first is perhaps the most fundamental--that is, the need to clarify the 
intent. We look forward to working with Members of the Subcommittee as 
you consider the best way of resolving these issues.
    This concludes my prepared statement. I would be happy to respond 
to any questions that you or other Members of the Subcommittee may have 
at this time.

    Mr. Gillmor. Thank you, Mr. Stephenson.
    Mr. Bialek.

                    STATEMENT OF MARK BIALEK

    Mr. Bialek. Good morning, Mr. Chairmen, members of the 
subcommittee. My name is Mark Bialek and I'm counsel to the 
Inspector General at the Environmental Protection Agency. I'm 
pleased to be here this morning on behalf of the Office of 
Inspector General to speak about recent developments and 
implementation and the operation of the Ombudsman function 
within OIG.
    As has been mentioned the original intent and authority of 
the Ombudsman mission was to provide information and to 
investigate complaints and grievances from the public relating 
to EPA's administration of the Superfund and other hazardous 
waste programs.
    Given that the former Ombudsman's role was so similar to 
the work we were created to perform in the Inspector General's 
Office, and because we report both to Congress and to the 
Administrator, the Inspector General believed our Office was 
well suited to assume the investigative functions of the 
Ombudsman's office. As the subcommittees I'm sure are aware, 
the Inspector General's Act gives us very unique and 
independent authorities and responsibilities, including the 
authority to issue subpoenas, obtain access to any records of 
the Agency, to obtain assistant from other Federal, State, and 
local governmental organizations. We have independent hiring 
and budget and contracting authority and independent reporting 
responsibilities to Congress.
    Now some, including GAO, have debated as you've heard just 
a moment ago, whether our assumptions of the Ombudsman 
responsibilities is consistent with the American Bar 
Association standards or other organizations' standards for a 
traditional Ombudsman function. It was not our intention to 
change the function of the pre-existing Ombudsman at OSWER so 
that it would come into conformance with the ABA standards or 
other organization standards for a traditional Ombudsman. We do 
not intend to become advocates for individuals or groups or to 
be disseminating basic information about the program or the 
operation.
    What we do intend to do is to assess and review all 
complaints in an impartial and objective manner, to assess the 
quality of EPA's program management and decisionmaking and to 
issue reports to Congress and to EPA with findings and 
recommendations that are designed to solve problems.
    Since the early 1980's, we've had maintained a hot-line 
function where members of the public can call in or write in to 
allege wrong doing or to make complaints about any problems 
they have had with EPA. They can either do that by calling the 
toll free number. They can write in to us and recently we have 
set up an internet capability for people to communicate with 
us.
    We have, as part of this transfer, decided to expand the 
services that we will be offering and not limit it only to 
Superfund or hazardous waste issues but extend the Ombudsman 
function to cover any and all programs and operations of EPA. 
The Ombudsman will have access to the various disciplines that 
are currently available with the Office of Inspector General 
including auditors, investigators, program evaluators, 
chemists, attorneys, and others.
    I'd like to give you a very brief update on what we've 
accomplished in the relatively short time that we've had this 
function. At the very end of April, the Inspector General 
appointed acting Ombudsman Mary Peggy Boyer and since then Mary 
and her staff have been assiduously reviewing 130 boxes worth 
of records which we inherited from the Ombudsman's Office at 
OSWER. We have eight staff members assigned full time reviewing 
those records, which I might add is at least twice as many 
staff that we were assigned previously in OSWER.
    According to GAO's report issued a year ago, there were 20 
open cases when they issued their report last September. We 
have finished going through these records and have determined 
that of those 20, 10 appear to be closed or resolved. The 
remaining 10 we have prioritized in terms of what deserves our 
immediate attention. Certainly the Marjol Battery site, the 
Shattuck Chemical site, Bunker Hill, Coeur D'Alene are on that 
list.
    We have also listed seven additional cases to that list 
based on records we have reviewed or media accounts since the 
issuance of the GAO report.
    We have also begun outreach efforts. We've offered to brief 
any Member of Congress and we've done so on a number of 
occasions and committee staff. We have made contact with 
citizen groups in several of the communities where we have open 
cases. We have participated in public hearing as Chairman 
Bilirakis mentioned. He hosted us in Tarpon Springs, Florida 
this past weekend. We will be participating in meetings in 
Idaho and Washington later this week.
    At the same time we're working on implementing policies and 
procedures to address the handling of cases, including case 
selection criteria. We have had extensive discussions with the 
Regional Ombudsman's Offices and set up a coordinated approach 
for addressing issues of mutual concern. We've met a number of 
times with the Ombudsman for ATSDR as well.
    We will publicly report on a annual basis the work we've 
accomplished, status report on all open cases and 
recommendations or findings that we have reported to the 
Agency.
    The Inspector General and I are very proud of the track 
record of EPA OIG. We want to assure the public, EPA 
stakeholders, and Congress that we will conduct Ombudsman work 
with total independence and professionalism.
    We welcome the committee's assistance in terms of 
information or suggestions to us as we carry on these new 
responsibilities. That said, I hope you will reserve judgment 
until such time as we've had an opportunity to produce some 
reports.
    Thank you for the opportunity of being here today and happy 
to respond to any questions you have.
    [The prepared statement of Mark Bialak follows:]
 Prepared Statement of Mark Bialek, Counsel to the Inspector General, 
                  U.S. Environmental Protection Agency
    Good Morning Chairman Gillmor and Members of the Subcommittee. My 
name is Mark Bialek and I am Counsel to the Inspector General of the 
Environmental Protection Agency (EPA). I am pleased to speak to the 
Subcommittee today on behalf of the Office of the Inspector General 
(OIG) about recent developments in the implementation and operation of 
the Ombudsman function.
    I'd like to begin my remarks with a brief history of the EPA 
Ombudsman. The Ombudsman function was established by Congress in the 
Resource Conservation and Recovery Act amendments of 1984. Although the 
statutory authority for the office expired in 1989, and Congress has 
not reauthorized it, EPA has continuously maintained the Ombudsman 
function in some form for more than 16 years. As originally authorized, 
the Ombudsman's mission was to provide information and investigate 
complaints and grievances from the public related to EPA's 
administration of certain hazardous and solid waste programs.
    In July 2001, the General Accounting Office (GAO) issued a report, 
EPA's National and Regional Ombudsmen Do Not Have Sufficient 
Independence, GAO-01-813. This report identified areas of weakness in 
the operation of the Ombudsman function regarding its independence from 
the program office that is subject to review, its impartiality and 
freedom from conflict of interest, and its accountability and 
reporting. Given that the Ombudsman's role of reviewing Agency actions 
is similar to the work we were created to perform, and because we 
report to both Congress and the Agency, the Inspector General believed 
our office was well suited to assume the investigative functions of the 
Ombudsman's office. In April of this year, the Ombudsman's Office was 
transferred from EPA's Office of Solid Waste and Emergency Response 
(OSWER) to the OIG.
    Congress established the Inspectors General through the Inspector 
General Act of 1978 (IG Act), to serve as an independent, impartial and 
accountable source for audits, evaluations, and investigations of the 
activities of Federal departments and agencies in an effort to prevent 
and detect fraud, waste, and abuse, and enhance the economy, 
efficiency, and effectiveness of government programs and operations. We 
are sometimes known as ``watchdogs'' for our role in alerting the 
public and Congress to areas of concern within the Executive branch. 
Under the IG Act, Inspectors General have the authority to demand 
access to any Agency record; request information or assistance from 
Federal, State or local government agencies; and issue subpoenas. The 
IG Act also granted certain authorities unique to OIGs in order to 
ensure our independence. We select, prioritize and carry out all of our 
work assignments independent of EPA oversight. We have separate budget 
authority, separate hiring and contracting authority, and independent 
reporting responsibilities to Congress. These are some of the key 
characteristics that enable us to effectively review Agency programs 
and assure our structural independence.
    We perform our work in accordance with established standards and 
procedures, including Generally Accepted Government Accounting 
Standards, otherwise known as the GAO ``Yellow Book,'' and report our 
findings independently and separately to the EPA Administrator and 
Congress. The IG Act also provides the OIG broad authorities to receive 
complaints and conduct investigations. Whatever capacity our staff may 
be serving in, the basic operating principles of the EPA OIG, and all 
Federal OIGs for that matter, are to act with independence, 
impartiality, and accountability. Congress and the public can be 
assured that all work done by the OIG, including that of the Ombudsman, 
will continue to meet those standards. For the record, I am submitting 
a copy of a brief prepared by the U.S. Department of Justice which 
outlines the legal authority for the OIG to perform the Ombudsman 
function.
    Some, including the GAO, have debated whether EPA OIG's assumption 
of the Ombudsman function is consistent with standards established by 
the American Bar Association (ABA) or other organizations for the 
conduct of Ombudsman business. It was not our intention to change the 
function of the Ombudsman after it transferred to the OIG to conform to 
ABA standards for a ``traditional'' Ombudsman. We will not become 
advocates for individuals or groups. We will not be disseminating basic 
information about the programs and operations of the EPA. We will 
review all complaints in an impartial, objective manner, assess the 
quality of EPA's program management and decision-making, and issue 
reports (to Congress and EPA) with findings and recommendations 
designed to correct problems.
    Since the early 1980s, we have operated a Hotline to receive 
complaints and allegations from the public regarding EPA's programs, 
operations, employees, and contractors. We receive Hotline complaints 
through our toll-free number, correspondence, and, beginning recently, 
the Internet. We have the sole discretion either to accept a request 
for assistance, or decline to act. Such decisions are made based on the 
information received, supporting evidence, and an internal evaluation 
process. This function is very similar to the function of an Ombudsman, 
and over time has provided us with audit, evaluation and investigative 
leads.
    All complaints received by the OIG may not result in an 
investigation. In those instances where our preliminary work produces 
sufficient information to warrant a full review, we open a case. 
However, if the primary responsibility for handling the matter rests 
elsewhere in the Agency, we will make a referral. In many cases, 
identification and referral of a matter by the OIG are sufficient to 
get Agency action. This is our current operating procedure for all 
complaints. In some cases, we expect to find that the OIG will already 
have ongoing work in an area when a complaint is received by the 
Ombudsman. When this occurs the Ombudsman will consult with the lead 
staff member on the assignment to expand the scope of work to include 
new issues or information. As is the case with all our work, the 
highest priority assignments are provided the necessary financial and 
human resources to fulfill their objectives.
    We operate as one OIG. This means that our work prioritization 
involves multiple OIG offices and no single staff member has the 
authority to select and prioritize his or her own caseload independent 
of all other needs. If an issue or investigation warrants further work, 
the necessary human and financial resources are devoted to the project 
until the matter has been brought to its appropriate conclusion.
    As part of the transfer of the Ombudsman function, we have expanded 
the services of the Ombudsman to include all EPA administered programs, 
rather than limiting them to only Superfund and hazardous waste issues. 
Within the OIG, the Ombudsman now has the opportunity to utilize the 
expert assistance of all OIG staff, which includes scientists, 
auditors, attorneys, engineers, and investigators. Ours is a matrix 
organization. We assign staff and other resources to projects on a 
priority basis, drawing from a large pool of OIG resources.
    I'd like to now give you an update on what we have accomplished in 
the 13 weeks since we began doing the work of the Ombudsman. Our first 
order of business was to get an Acting Ombudsman in place, and to 
assess the transferred caseload. Mary ``Peggy'' Boyer was appointed 
OIG's Acting Ombudsman in April. We then inventoried and organized 130 
boxes of documents that were transferred from the National Ombudsman's 
Office in OSWER. This was a rather challenging undertaking due to the 
lack of any organized system of records or case file index. It took us 
until early June to organize and review the files and to assess the 
information and the work that had been done. Currently, we have eight 
OIG staff members assigned full-time to the Ombudsman's caseload, which 
is more than double the staff that had been assigned in OSWER.
    According to GAO's 2001 report, the OSWER National Ombudsman opened 
34 cases between October 1992 and December 2002, closing 14 of those 
cases within five to 25 months, 13 months being average. We are 
assessing the remaining 20 cases. Ten of the 20 cases initially appear 
to be completed or closed, and we are working to confirm this. The 
remaining ten cases range in age from more than 20 months to five years 
and appear to be unresolved. These cases include the following 
Superfund sites: Marjol Battery, Shattuck Chemical, and Bunker Hill/
Coeur d'Alene. Further, we are determining the status of seven 
additional cases for which we have found documents or have media 
accounts. These include the World Trade Center, which we have 
incorporated into an already ongoing OIG assignment.
    We have developed a priority list of cases, and will be working to 
resolve these as quickly as possible. We have also begun outreach 
efforts in order both to explain how we plan to perform the Ombudsman 
function and to collect additional information. We offered to brief any 
member of Congress who has indicated an interest in these cases. As a 
result, we have met with a number of individual members, including 
Congressman Bilirakis. We remain willing to continue to brief members 
or committee staff on our Ombudsman work. We have made contact with 
citizen groups in several of the communities where there are open 
cases. We participated in a public hearing in Tarpon Springs, Florida 
this past weekend hosted by Congressman Bilirakis, and we will be 
participating in meetings in Idaho and Washington later this week.
    In resolving the existing cases, we are conducting our work using 
our audit, evaluation, and investigative standards and procedures. At 
the same time we are working on developing policies and procedures for 
handling incoming cases. This includes case selection criteria. We have 
been working closely with the Regional Ombudsmen and are developing a 
coordinated approach for addressing the issues at all levels in a 
timely and appropriate manner. We have also met with the Ombudsman from 
the Agency on Toxic Substances and Disease Registry (ATSDR) on several 
occasions regarding work of mutual interest.
    I believe that public reporting on the caseload, activities, and 
accomplishments of the Ombudsman is a vital and important 
responsibility. I firmly believe that professional standards of 
conduct, a transparent review process, and public accountability 
strengthen the credibility of the reviewer's findings. In order to 
provide accountability and communication with the public and Congress, 
the work of our Ombudsman must meet the same high standards we hold for 
all our other products. At least annually, we will publish a report 
summarizing our work, including a status report on the cases opened by 
the National Ombudsman and recommendations or findings reported to the 
Agency. We already provide similar reports semiannually for all our 
work, and annually for Superfund program work.
    Members of the Subcommittee, the Inspector General and I are proud 
of the track record of the EPA OIG. I want to assure the public, EPA 
stakeholders, and Congress that we will conduct the Ombudsman work with 
independence and professionalism. I give you our commitment to be 
responsive to any questions or comments you may have as we move forward 
with this important work. We welcome your assistance in providing any 
information or suggestions relating to our new responsibilities. That 
said, I hope that you withhold judgement on our performance until such 
time as we have had an opportunity to produce results.
    Thank you for the opportunity to participate today. I will be glad 
to respond to any questions the Subcommittee may have at this time.
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    Mr. Gillmor. Thank you very much. We'll now move to a round 
of questions. I will point out that we've been joined by Mr. 
Nathan Deal, a member of the subcommittee and by Diana DeGette 
of Colorado who is not a member of either subcommittee but is a 
member of the full committee and will be sitting in for the 
purpose of questioning.
    Mr. Fabricant, in your opinion, does the Agency possess the 
legal authority to move the Ombudsman from OSWER to OIG?
    Mr. Fabricant. Yes, Mr. Chairman. Although the statutory 
language sunset in 1988, as a matter of policy we've maintained 
a function of the Ombudsman within OSWER, and we think there is 
sufficient authority to have the transfer to OIG and to 
undertake the functions of the Ombudsman within that Office.
    Mr. Gillmor. In your opinion, I take it then, the Agency 
has not violated any laws in making decisions considering the 
Ombudsman's function or handling?
    Mr. Fabricant. Mr. Chairman, no. The Agency--the actions of 
the Agency have been perfectly lawful.
    Mr. Gillmor. Going back and looking at a little bit of the 
history of the Ombudsman activities in the past, the GAO report 
of last July said there were 34 cases listed that the Ombudsman 
initiated between October 1992 and December 2000. And the GAO 
reported the Ombudsman issued only 4 reports and 3 interim 
reports and that of those 34 cases, 14 of them were unresolved. 
And some of those unresolved cases go back to 1997.
    It's my understanding that since 1997, the Ombudsman 
resolved only two cases with 19 new cases open since which have 
been unresolved. Does that fit in with your understanding? And 
in your opinion, has that been a good use of government 
resources by the Ombudsman at that period of time?
    Mr. Fabricant. The facts as you laid them out, Mr. 
Chairman, are consistent with my understanding of the track 
record of the
OSWER Ombudsman and we believe with the shift to the Office of 
the Inspector General we can do better. It's again an 
administrative management prerogative to reorganize the Agency 
and we're looking to improve on that record in the Office of 
the Inspector General.
    Mr. Gillmor. And if I might go to Mr. Stephenson. One of 
the items that your report touched on last year was the need to 
establish accountability within the Ombudsman Office. In your 
opinion, do the standards and the culture of the IG's Office 
meet the threshold for proper accountability?
    Mr. Stephenson. Yes, we're not taking issue with the 
accountability of the IG or the professionalism of the IG. They 
do, in fact, meet those standards. What we were pointing out is 
that the previous Ombudsman didn't meet accountability 
standards because he didn't do annual reports or didn't do 
systematic reporting and that was a problem in our view.
    Mr. Gillmor. And your report also said that the Ombudsman 
doesn't have a final say in staffing and resource decisions, 
but that the Ombudsman would have input into those things. Is 
this more than what the EPA Ombudsman previously enjoyed?
    Mr. Stephenson. For the current placement in the IG?
    Mr. Gillmor. Right. I'm asking for the comparison between 
this placement and the previous----
    Mr. Stephenson. The previous Ombudsman really didn't have 
any input into staffing and resource decisions. It was an 
individual position and there was a loose, non-supervisory 
working relationship between the National Ombudsman and the ten 
Regional Ombudsmen, so I can't really answer the question if 
it's consistent with that. There was no Office of the 
Ombudsman. There was an individual person who was the 
Ombudsman.
    Mr. Gillmor. Okay, thank you. And one question for Mr. 
Bialek.
    Could you briefly describe the changes the OIG has put in 
place in regard to the responsibilities and the activities and 
the functions of the OSWER Ombudsman? In other words, what are 
the significant ways that you believe the OIG's Office is 
running the program differently if any than the way it was run 
before?
    Mr. Bialek. Well, I think the best way to answer that is to 
say that the first thing we're doing is establishing some rigor 
to the decisionmaking process on which cases we think warrant 
attention, to develop standards and set priorities and to 
adequately staff those efforts and to be able to issue reports 
in a timely fashion to address and hopefully resolve problems 
we uncover using professional auditing standards, whether they 
be the GAO Yellowbook standards or other standards of the 
professions that we have within OIG, to have a separate budget 
allocated, to have separate reporting in terms of our own 
internal record keeping system which will identify and track 
each and every Ombudsman action in terms of the receipt of a 
complaint and a processing of a complaint and timelines 
established for resolution.
    Mr. Gillmor. My time is expired and we will recognize the 
gentleman from New Jersey, Mr. Pallone.
    Mr. Pallone. Thank you, Mr. Chairman. Mr. Stephenson, from 
what I can see based on your testimony, the heart of the issue 
here really is whether or not the decision by the EPA to place 
the Ombudsman in the Inspector General's Office meets the test 
of what you call or actual and apparent independence. That's 
what this is all about.
    My concern is, you know, in your testimony you mention that 
indicia, if you will, of that independence will be authority 
over your own budget, the ability to hire or fire staff, the 
ability to make decisions, you know, to decide what kind of 
cases would be selected.
    And I listen to the chairman's remarks, and I know he was 
asking about the IG and asking you whether the IG met the test 
of independence, but I guess I have two questions. One is the 
issue of whether the Ombudsman meets the test of independence 
is really separate from whether the IG does. If you could 
answer that.
    And then the second thing is whether or not the test of 
actual and apparent independence is met by putting the 
Inspector General under the IG. If you could answer those two.
    Mr. Stephenson. Well, the standard says control over 
resources and staffing and prioritizing his or her own 
decisions. We see the function of the IG and the Ombudsman as 
very different. The Ombudsman is typically defined as an 
informal problem solving organization between the citizens and 
the Federal agencies. Placing it in the IG puts it down several 
layers under an Assistant Inspector General who reports to the 
Inspector General who ultimately reports to the Administrator. 
We don't see that as unincumbered, and so we don't think it 
meets the test of independence by placing it in that type of an 
organization.
    If you want an enhanced IG capability to look at more 
Superfund sites and address citizen concerns similar to what 
the hot-line function already does, that's fine. But if you 
want a true Ombudsman, this isn't it.
    Mr. Pallone. My understanding that other agencies the GAO 
looked at, such as the Food and Drug Administration and the 
Internal Revenue Service, that in those cases the Ombudsmen 
have their own budget and reported directly to the head of the 
Agency. You looked at those two and that's what you found?
    Mr. Stephenson. That's correct.
    Mr. Pallone. So I guess, you know, a question to Mr. 
Fabricant, given what the GAO says which is there is no actual 
and apparent independence here, and given the fact that there 
are other agencies that GAO looked at, such as FDA and IRS, 
that have their own budget and reported directly to the 
Administrator and clearly met the test, why is it that 
Administrator Whitman didn't follow the recommendation to the 
GAO and these other examples of these other agencies and having 
the Ombudsman report directly to her Office?
    Mr. Fabricant. Congressman, when the Administrator began 
the review process, we had the benefit of the GAO report. And 
looking at the terms of the GAO report and the expressed 
standard that was being applied, the test for independence 
really referred back to whether the supervisor would be anyone 
subject to the Ombudsman's jurisdiction. So in that important 
respect in the Office of Inspector General, the Ombudsman 
function would not be using its good offices to look at the 
Inspector General.
    And we looked at that and we thought that was an important 
distinction, as opposed to the Administrator's Office where if 
there was a direct report to the Administrator, like in the 
other agencies, and again, we don't think this Agency should be 
bound by what's typical at other agencies, especially after the 
thoughtful consideration of the various options and examples we 
had before us.
    Then in particular, if it was placement in the 
Administrator's Office, then in fact there would be a report by 
the Ombudsman to a person who was subject to that jurisdiction. 
You just don't find that in the Office of the Inspector 
General. There's much more independence. And that was a 
decisionmaking process that we undertook.
    Mr. Pallone. I understand what you're saying, but I think 
what Mr. Stephenson is saying, and he couldn't be more clear, 
is that by putting it under the IG, even though the IG is 
independent, you're basically downgrading the Office and making 
it sort of unimportant and almost like an appendage if you will 
to the IG. And that the whole idea is that this Ombudsman has 
to be important and report directly to the Administrator, so 
that they don't have these intervening layers of bureaucracy 
that would get in the way of their trying to influence the 
Administrator or reporting to them.
    I mean, I understand what you're saying but he doesn't 
agree and I assume that part of the purpose of the hearing 
today is to maybe have you change your mind. After you're 
listening to what you're saying, do you think--are you making 
an effort into looking into the possibility of changing it and 
making it more like the FDA or the IRS?
    Mr. Fabricant. Again, Congressman, I will be reporting back 
the debate and the discussion of this hearing to the 
Administrator, but as of today, we're continuing to move 
forward with the transition to the Office of the Inspector 
General. And again, we agree with you about the importance of 
the function and we think placement in OIG is complemented by 
many of the functions that are currently in the Office of the 
Inspector General, and it can be a more effective and efficient 
operation as well as more----
    Mr. Pallone. What about the fact that he said there's some 
inability to hire or fire your own staff, that there's no 
authority over your own budget. You're not worried about those 
things?
    Mr. Fabricant. Again, I think turning back to the idea of 
independence, the notion of Ombudsman is not having no 
supervision whatsoever. It's supervision by a person who is 
subject to the inquiries that could create conflicts.
    Mr. Pallone. Mr. Stephenson said that the new person can't 
hire or fire their own staff. Doesn't have authority over their 
own budget. Not clear if she has the ability to select cases. I 
mean, it seems like if you eliminate all those things that this 
person, you might as well have the IG and not bother. What's 
the point of having it at all? What is it going to do 
differently from the IG?
    Mr. Fabricant. Congressman, again, I think I'd refer some 
of the actual nuts and bolts logistics of the process to Mr. 
Bialek at OIG so he can elaborate further on how it will 
actually function.
    Again, I think it's a very recent transition that's 
occurred here and I think it's again----
    Mr. Pallone. I'm just trying to have you answer the 
questions. I mean, I'll go one step further. We haven't heard 
Mr. Martin's testimony yet, but in his testimony he talks about 
how there's also restrictions in terms of communication with 
the outside world. That's even more disturbing to me. I don't 
know if you want to comment on that at all.
    Mr. Fabricant. Again, I will refer those questions over to 
Mark Bialek.
    Mr. Pallone. All right. You're not helping me, so let me 
ask Mr. Bialek.
    What do you have to say about the fact that this person is 
essentially under the IG? How are they going to assert any 
independence if they can't hire or fire their own staff, can't 
exclusively select cases, don't have authority over the budget, 
or even can't communicate to some extent? Now that was stated 
not by the GAO but it's in Mr. Martin's testimony that we're 
going to get later.
    Mr. Bialek. The way we have structured this operation does 
not allow for the Ombudsman to make his or her own decisions in 
a vacuum about hiring, about budgeting, about case selection. 
This individual does have a supervisor, as did the previous 
OSWER Ombudsman have a supervisor. That structure isn't any 
different.
    What's different is how it's now housed within the 
organization that has an independent head, the Inspector 
General. The Ombudsman will be making recommendations to the 
Inspector General through an Assistant Inspector General for 
budgeting, for personnel. I will add that originally there was 
an estimate of her needing five full time staff to start the 
review process. She was given five. She came back and said she 
needed more. She now has eight and she is formulating a 
proposal to give to the Inspector General for additional 
funding and additional full time staff to be able to carry out 
this responsibility.
    Mr. Pallone. I know my time is expired, but I just have to 
say, Mr. Chairman, it sounds to me like Mr. Fabricant and Mr. 
Bialek just don't agree with what Mr. Stephenson is saying, 
that this should be independent. I think that's ultimately what 
you're saying.
    I yield back.
    Mr. Gillmor. The gentleman's time is expired. The gentleman 
from Illinois, Mr. Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman.
    Mr. Fabricant, in my opening statement I talked about the 
dismissal of Mr. Martin. And is that account accurate?
    Mr. Fabricant. No, Mr. Congressman. The letter was received 
by the Agency on April 22 of this year regarding Mr. Martin's 
voluntary resignation.
    Mr. Shimkus. Was that prior to the changing of the locks 
and the removal of the files?
    Mr. Fabricant. Again, I dispute the characterization of 
what occurred regarding the transition.
    Mr. Shimkus. Did someone from the Agency talk to Mr. Martin 
prior to his resignation about the elimination of the Office or 
the problems?
    Mr. Fabricant. No, I think the resignation occurred after 
the U.S. District Court dismissed the claims that Mr. Martin 
had raised regarding trying to enjoin the transfer.
    Mr. Shimkus. We'll get a chance to hear from Mr. Martin and 
I really want to follow up on this whole timeline of events. I 
don't know, have you ever fired anyone, Mr. Fabricant, 
personally?
    Mr. Fabricant. No.
    Mr. Shimkus. Mr. Stephenson, have you?
    Mr. Stephenson. No, not directly.
    Mr. Shimkus. Mr. Bialek, have you?
    Mr. Bialek. No, I've put people on Performance Improvement 
Plans and that's led to their resignation.
    Mr. Shimkus. I would suggest that it's not a fun thing to 
do which I have done and I've always thought that out of 
professional courtesy you would at least meet with someone 
before you would lock them out of the Office or grab their 
files. And I'd like to know who was the individual who may have 
made this decision. And I'm going to continue this search, so 
maybe having someone from the Office come in and visit with me 
in my Office so I can get the timeline. If it occurs as it's 
being told to me, I'm not very pleased. It's truly 
unprofessional and we've got to be able to do a better job.
    Mr. Bialek. Congressman, I can respond to that briefly by 
saying that our Office, in particular, the Acting Assistant 
Inspector General to whom the Ombudsman was expected to report 
attempted on many occasions to contact Mr. Martin by phone and 
by e-mail and was unsuccessful in doing so.
    We provided a listing of each of those attempts to the 
Senate and I'd be happy to make a copy of that listing and 
provide it to you.
    Mr. Shimkus. I'd like to have that. Thank you.
    Mr. Bialek, in essence in your opening statement you've 
admitted in your testimony that you do not want this be the 
traditionally defined Ombudsman. Is that correct to say? I mean 
that's what your opening statement said.
    Mr. Bialek. Yes.
    Mr. Shimkus. And I would probably make the statement on 
behalf of myself that that's exactly what I want. I mean, 
that's what I want, is a traditional Ombudsman for my opening 
statement's comment. And it's based upon past experience with 
issues. One was that a large Superfund sight in Quincy, 
Illinois, that I thought it would have been helpful to have 
someone--I see the Office of the Inspector General, and I 
served in the Army and we had an IG. But I see the IG as 
addressing internal complaints and internal problems and legal 
issues and things that are going on inside the Office.
    I'm looking for someone who will help us relay to the 
public that we're concerned about what's going on as far as the 
EPA or as grass roots become issues. Because we serve that 
role.
    And the other benefit of an external Ombudsman person 
looking outside, is that they can go back and continue to give 
the grass roots perspective, the same things we're hearing from 
our citizens is also coming in from another information point 
that may help your folks in the EPA Legislative Office 
understand what we're trying to say here in our hearing.
    So if I were to take your comment as your word, then I 
would just say that what I'm looking for is a traditional 
Ombudsman.
    Mr. Bialek. And I guess my reaction, Congressman, is it 
kind of depends on what factors are most critical to you in 
defining what's a traditional Ombudsman and what's not.
    We are in the business of receiving complaints from all 
sources, for criminal wrongdoing of agency officials, for 
criminal wrongdoing of contractors and grantees. We review the 
media----
    Mr. Shimkus. Okay, well let me jump into that because 
you're going to be constrained. The role of a Federal Agency in 
the executive branch is to enforce the laws. Well, what if laws 
are so screwy that the individual citizen is just being raked 
over the coals. Well, you're going to come down and say well, 
it's the law. EPA is doing what it's supposed to be doing and 
we're following the law and I don't care if this small business 
has to sell its assets to pay this legal fee or this extortion 
by the EPA on a 25 year old Superfund site. You're going to say 
it's the law.
    Mr. Bialek. We have direct reporting responsibilities to 
Congress. We're obligated under our statute to keep Congress 
fully and currently informed of problems in our Agency. If we 
think there's a law that has a negative impact that's causing 
problems in terms of the EPA being able to properly administer 
its programs, our responsibility is to come to Congress and lay 
all of that out.
    Mr. Shimkus. Let me just end by saying we got that law 
changed with help of Chairman Gillmor just last year. I'm not 
sure EPA was at the forefront of helping us change that law, 
but I thank the chairman for helping us ease some of burden on 
small business in the Superfund sites. And this is exactly why 
I want an independent Ombudsman. I yield back my time.
    Mr. Gillmor. Thank you very much, Mr. Shimkus. The 
gentleman from Michigan.
    Mr. Stupak. Mr. Bialek, how does the OIG position then 
square with the legislative purpose in establishing the Office 
of Ombudsman? It was, you know, established in the 1984 
amendments published in the Federal Register November 24, 1986, 
and it's, I'm quoting now, ``it's the function of the Office of 
Ombudsman to receive individual complaints, grievance, and 
problems submitted by any person with respect to any program or 
requirement under the Resource Conservation Recovery Act, RCRA. 
The objective of the RCRA Ombudsman is to ensure that the 
general public is provided with assistance with complaints or 
problems.''
    So who's going to act for the public when the issues come 
up regarding the EPA's conduct on Superfund and other clean-up 
sites?
    Mr. Bialek. If we receive complaints, and we decide that 
because----
    Mr. Stupak. Who's we? OIG?
    Mr. Bialek. Inspector General Ombudsman's Office.
    Mr. Stupak. The Office of Ombudsman or OIG?
    Mr. Bialek. We have an OIG hotline which will receive 
complaints.
    Mr. Stupak. Right, but doesn't Gary Johnson, Deputy IG, 
doesn't he really call the shots over at the Ombudsman Office?
    Mr. Bialek. The Ombudsman is the one who is responsible for 
the activities of that Office. That Ombudsman reports to Mr. 
Johnson.
    Mr. Stupak. Sure, so if a complaint comes in and whether or 
not the Ombudsman is going to pursue it, who is going to 
determine that, the Office or Mr. Johnson?
    Mr. Bialek. The Ombudsman will make recommendations to Mr. 
Johnson.
    Mr. Stupak. So Mr. Johnson will make the decision.
    Mr. Bialek. Yes.
    Mr. Stupak. The OIG is making these decisions, right?
    Mr. Bialek. Yes.
    Mr. Stupak. In your statement you said we will not become 
advocates for individuals or groups. We will not be 
disseminating basic information about the programs and 
operations of the EPA.
    How do you do that in light of what I just read about what 
your stated purpose is? How can you just suddenly change the 
focus of the Ombudsman?
    Mr. Bialek. There's a two-part answer to that. The first 
part has to do with the dissemination of information. That is a 
programmatic operating responsibility. We are not permitted to 
get into programmatic operating responsibilities. Basic 
information dissemination about the programs doesn't fall into 
an IG's framework of responsibility for auditing, for 
investigating.
    Mr. Stupak. But it does or doesn't fall under the law that 
was created by Congress.
    Mr. Bialek. The OSWER Office retains the responsibility for 
responding to requests for information about the OSWER programs 
and OSWER operations.
    Mr. Stupak. What's the second part?
    Mr. Bialek. The second part of your question, if we receive 
complaints that warrant an investigation, we open the case and 
we assign staff and we get to the bottom of the problem. If we 
should decide not to open up a case, that it doesn't warrant an 
Ombudsman case, not every complaint that comes in warrants a 
case being open. We will make an appropriate referral to the 
organization or the office or the agency that's responsible for 
that issue and probably ask them to report back to us on how 
they've addressed that complaint.
    Mr. Stupak. So the part where it says the Ombudsman is to 
ensure that the general public is provided assistance with 
complaints or problems, you don't see that as your role?
    Mr. Bialek. If providing assistance means making a referral 
to the appropriate office that can best address the problem or 
the complaint, I think we have fulfilled that responsibly.
    Mr. Stupak. Not making a referral. It says to ensure the 
general public is provided with assistance with complaints or 
problems. Same thing that Mr. Shimkus said. We're concerned 
that the nature of the Ombudsman is suddenly diluted and it's 
now an OIG function further on down the line. That the true 
purpose and intent, which was enacted in 1984 and was published 
in the Federal Register in 1986 is being disregarded, 
especially when we see statements like yours that you will not 
become advocates for individual groups, you will not be 
disseminating basic information about the programs and 
operations of the EPA. That's contrary to what an Ombudsman is 
supposed to do, so we don't have problems in getting clean-ups 
at Superfunds, and other sites.
    So, let me go back to my original question. So who will act 
for the public when these issues come up regarding the EPA if 
you're just going to be a function of the Office of the 
Inspector General?
    Mr. Bialek. As I've said, we will be providing assistance 
by making sure those complaints are addressed. What I said is 
that we may not be the office to address each and every 
complaint that we receive, but we will make sure they are 
forwarded to the appropriate officials to respond and monitor 
the response and make sure that each matter has been resolved 
by somebody. That's providing assistance.
    Mr. Stupak. When you take a look at it, with the transfer 
over to the OIG, the Ombudsman becomes just one more 
investigation and there will be no special priority or focus on 
Superfund or hazardous waste functions. Correct?
    Mr. Bialek. We're starting with the focus on Superfund and 
hazardous waste because that's the workload that we've 
inherited and those are the priorities that we have taken on. 
But we are leaving open the option of the same kinds of 
problems being raised with us on any particular program or any 
operation of EPA. We're not going to turn people away if they 
want to call and relay information or make allegations along 
the same lines outside of the Superfund program.
    Mr. Stupak. How are you going to relay that information? 
Are you going to assist them in their complaints and 
investigations as the Ombudsman?
    Mr. Bialek. We will capture the complaint. We will provide 
the results of any preliminary inquiries we may do in our 
efforts to determine whether to open up an Ombudsman case or 
not and refer those in writing to the appropriate officials if 
we decide not to conduct an Ombudsman investigation ourselves 
and make sure that there's appropriate follow-up.
    Mr. Bilirakis. [presiding] The gentleman's time has 
expired. I'm going to use the prerogative of the Chair and 
recognize myself.
    Mr. Bialek, I guess everybody has been sort of dancing 
around this, but no one has really been that specific. 
Regarding the series of recommendations that GAO made on how to 
improve the Ombudsman function at EPA, can you describe how 
your office has responded to or is responding to each of these 
recommendations?
    Now there are five of them here and my time will not allow 
you to go into each one of them. There are too many specifics. 
But possibly you can summarize each briefly and follow it up 
with something in writing afterwards.
    GAO recommended EPA provide the Ombudsman with a separate 
budget and, subject to applicable civil service requirements, 
the authority to hire, fire, and supervise his own staff.
    Quickly, any comments regarding that?
    Mr. Bialek. The Ombudsman will have responsibility for 
making recommendations on the hiring of staff and budgeting for 
approval by the Assistant Inspector General for the CPO.
    Mr. Bilirakis. So the answer is no regarding that GAO 
recommendation. Is that right?
    Mr. Bialek. The Ombudsman will not have the authority to 
make that determination in a vacuum.
    Mr. Bilirakis. They will not have a separate budget.
    Mr. Bialek. There will be a separate budget allocated, yes.
    Mr. Bilirakis. But not have the authority to hire, fire, 
supervise their staff. GAO suggested that EPA should require 
the Ombudsman to develop written criteria for selecting and 
prioritizing cases for investigation and to maintain records on 
his investigations and other activities sufficient to serve as 
the basis for a reasonable estimate of resource needs.
    Mr. Bialek. That's precisely what we're doing.
    Mr. Bilirakis. You're doing that?
    Mr. Bialek. Yes we are.
    Mr. Bilirakis. So you're requiring the Ombudsman to develop 
those written criteria, right?
    Mr. Bialek. Correct.
    Mr. Bilirakis. GAO stated that EPA should require the 
Ombudsman to establish a consistent policy for preparing 
written reports in his investigations, consult with agency 
officials and other affected parties to obtain their comments 
before his findings are made public, and include written Agency 
comments when reports are published.
    Mr. Bialek. Yes, we've asked our Ombudsman to do that.
    Mr. Bilirakis. You've asked your Ombudsman to do that.
    GAO recommended that EPA require the Ombudsman to file an 
annual report summarizing activities and make it available to 
the public.
    Mr. Bialek. Yes.
    Mr. Bilirakis. Finally, GAO called on EPA officials to 
assess the national demand for Ombudsmen services and determine 
the places they are most needed and the places where the 
Ombudsman is located; ensure that these regional Ombudsmen meet 
relevant professional standards for independence.
    I'm not sure even I understand that.
    Mr. Stephenson. Would you like me to explain it, Mr. 
Chairman?
    Mr. Bilirakis. Please explain it, Mr. Stephenson.
    Mr. Stephenson. Right now there's a Regional Ombudsman in 
each of the ten regions that's in the OSWER organization that 
as a collateral duty, performs some information dissemination 
to the public on Superfund programs. And that's really not an 
Ombudsman either. It's still in the Office of OSWER, therefore 
it's not independent. And since it's a collateral duty it's not 
their primary function, so they're really not serving as a 
Ombudsman. What we ask is that EPA address that concern with 
the Regional Ombudsman, not the National Ombudsman.
    Mr. Bilirakis. You know, I suppose Ms. Malinowski will 
refer to this in her comments, I don't know. But back in the 
early part of June 2000, we had scheduled what we call a Town 
Meeting in Tarpon Springs, Florida. The former Administrator 
refused to afford enough funds to allow the Ombudsman and his 
investigator to come down for that town meeting. Now I know it 
happened before your watch, Mr. Bialek. I don't know how long 
you've been counsel of the OIG. I suppose your documentation 
may go into that. But in any case, it took me and Mr. Oxley, 
who at that time chaired this particular subcommittee, and also 
Mr. Tauzin in an conversation with the Administrator to allow 
those funds to be made available. And I might add that's the 
meeting in which the EPA officials from the Region got up and 
walked out at a certain time and refused to answer any more 
questions. That's all a matter of record.
    So, you know, we talked about independence. Now granted 
that was OSWER. But I'm not sure if that same sort of thing can 
now take place under the IG. As much confidence as I have in 
the IG insofar as the functioning of their office as I 
understand it over the years, going all the way back to when I 
was in the military, I don't know if that function would lend 
itself to any good effort insofar as the Ombudsman is 
concerned.
    I don't know if you have a real quick response to that. My 
time is expired and I don't want to take advantage.
    Mr. Bialek. All I'll say is we allocated I think 
approximately $600,000 to this function and have asked the 
Ombudsman to prepare and provide a budget on what she thinks 
she needs to fully fund the operation.
    Mr. Bilirakis. Let's see, who is next? Ms. DeGette? Is she 
on the subcommittee?
    Ms. DeGette. No.
    Mr. Bilirakis. You're not on the subcommittee. Mr. Barrett.
    Mr. Barrett. To make it easier, since I'm on the 
subcommittee, I'll yield to Ms. DeGette. If that's okay with 
you, Mr. Chairman.
    Mr. Bilirakis. I suppose so.
    Ms. DeGette. Thank you, Mr. Chairman, for letting me sit in 
on this hearing today. And thank you also, Mr. Chairman, for 
your leadership on this issue with the Ombudsman. We've been 
working a long time together. I got involved in the issues with 
the Ombudsman when he came out and worked on a very difficult 
case in Denver, my District, with the Shattuck decision. This 
was a record of decision that had been closed and which was an 
incredibly problematic decision and which with the leadership 
of the Ombudsman we were able to get reversed and now we have a 
much more appropriate remedy, appropriate for the neighborhood, 
appropriate for the health of the community. And for that I 
want to publicly thank the Ombudsman for doing this.
    I should say I want to thank the former Ombudsman, Bob 
Martin. In the process of working on this, I became quite 
concerned about the independence of the Ombudsman's Office 
because it really takes somebody who's out there as an advocate 
for the public to to be talking about these environmental 
decisions.
    So needless to say, Mr. Chairman, I was quite concerned 
when the EPA made the decision to move the Ombudsman's Office 
into the Office of the Inspector General. And I think the line 
of questioning we've seen from both sides of the aisle would 
show that in fact the EPA has achieved its objective which is 
to subsume the Ombudsman into another agency to remove the 
Office's independence and to put them as part of the 
bureaucracy. And I want to ask some questions around that.
    The first one, Mr. Fabricant, what was the staffing and the 
budget of the Ombudsman before this recent move into the Office 
of the Inspector General?
    Mr. Fabricant. Just a second. I'll get the information for 
you.
    Ms. DeGette. All right. While you're looking for that, Mr. 
Bialek, let me tell you I have enormous respect and admiration 
for the Office of the Inspector General and I think my 
colleagues will join me in saying we don't have a problem with 
what you folks do. We just don't think that's what an Ombudsman 
does. So I want to ask you some questions around that.
    I think it's been pretty clear from the questioning that 
the concept is now that the Ombudsman will do this research, 
but they really will report to a Deputy in the Inspector 
General's Office, right? That's the concept.
    Mr. Bialek. Yes.
    Ms. DeGette. And so ultimate decision for which cases are 
pursued, that will be determined by the Inspector General's 
Office, right?
    Mr. Bialek. There will be criteria established to guide----
    Ms. DeGette. But if the Ombudsman said I want to go 
investigate what's going on at Shattuck in Denver, ultimately 
that's going to be subject to a decision by a Deputy in the 
Office of Inspector General. Is that correct?
    Mr. Bialek. That's correct.
    Ms. DeGette. Now I want to ask you a few questions about 
the experience of the OIG in dealing with these cases. Let me 
ask you, first of all has the EPA Inspector General's Office 
ever held public investigative hearings on hazardous wastes in 
Superfund sites? Yes or no.
    Mr. Bialek. Public hearings, no.
    Ms. DeGette. Okay. Has the EPA Inspector General ever been 
involved in informal mediation between complainants, citizens, 
the Agency and other stakeholders in disputes arising out of 
hazardous waste in Superfund cases?
    Mr. Bialek. Depends on how you define informal assistance. 
By making referrals to appropriate officials to address 
problems and complaints, if you consider that informal 
assistance, then we have done that.
    Ms. DeGette. The OIG has not actually--you've made 
referrals, but you haven't participated in those mediations. 
Correct?
    Mr. Bialek. Correct. If what you're asking is will we 
mediate or will we arbitrate those kinds of disputes, acting in 
that capacity, the answer is no.
    Ms. DeGette. That's because the Inspector General is not 
authorized to do those activities under the Inspector General's 
Act, right?
    Mr. Bialek. That comes full force into the issue of whether 
that's a programmatic operating responsibility, correct.
    Ms. DeGette. So what you're saying, I'm sorry, the IG is 
not authorized to do those activities currently?
    Mr. Bialek. Correct.
    Ms. DeGette. Mr. Fabricant, did you get an answer?
    Mr. Fabricant. General information from the budget year 
2000 to 2001, in 2000 it was $518,000 allocated for the 
Ombudsman. The number increased to $786,000 in 2002 and 
generally in terms of staffing, there's been the Ombudsman 
himself and an additional employee detailed to provide 
assistance.
    Ms. DeGette. I mean, part of the problem before I thought 
was we had this Ombudsman but he was really inadequately 
funded. It was basically him and one other person and then 
these regional people who as part of their job were supposed to 
report to him, right?
    Mr. Fabricant. Generally, yes.
    Ms. DeGette. And what Mr. Bialek said----
    Mr. Bilirakis. Gentlelady, as part of their jobs did you 
say the regional people would report to the Ombudsman?
    Mr. Fabricant. There was a coordination between----
    Mr. Bilirakis. Coordination, okay.
    Ms. DeGette. Right, and just one last question, Mr. Bialek. 
What you're saying is right now you deploy now five or seven 
more employees to help the new Ombudsman?
    Mr. Bialek. Yes.
    Ms. DeGette. See, Mr. Chairman, I think that's part of the 
problem. They just didn't give Bob Martin enough resources. But 
why take away the independence of the Office in order to give 
the office the resources it needs?
    Mr. Bilirakis. Amen to that. It's really in our hands to do 
something about that.
    Mr. Norwood to inquire.
    Mr. Norwood. Thank you very much, Mr. Chairman. Is it 
Bialek?
    Mr. Bialek. Bialek.
    Mr. Norwood. Bialek?
    Mr. Bialek. Yes sir.
    Mr. Norwood. How long you been with the EPA?
    Mr. Bialek. Three years.
    Mr. Norwood. Three years. You apparently like the language 
in the Solid Waste Disposal Act regarding Ombudsman. Is that 
correct?
    Mr. Bialek. About investigating complaints and following up 
on complaints. Yes, that's what we're here to do.
    Mr. Norwood. Your general attitude is that the Ombudsman 
doesn't need to be independent?
    Mr. Bialek. That depends on how you define independent. The 
Inspector General is independent.
    Mr. Norwood. Let me put it this way. Let's say that the EPA 
comes up with a finding on a Superfund site and a constituent 
of mine goes to the Ombudsman and said we think they're wrong. 
We want you to investigate this. The Ombudsman does that and 
does indeed disagree with EPA. Who wins?
    Mr. Bialek. We issue a report with recommendations. If we 
believe EPA has done something wrong, we tell them how to 
correct that problem. We keep Congress informed as we go.
    Mr. Norwood. How long has the Ombudsman been under the 
Inspector General?
    Mr. Bialek. Since April.
    Mr. Norwood. So we don't do that very long. What's been 
going on the last 3 years prior to being under the Inspector 
General? And if you do produce a report for the EPA, do you 
ever know of the time that EPA has said yes, Mr. Ombudsman, 
you're correct. We're wrong. Has that ever occurred?
    Mr. Bialek. That question is better addressed by those who 
were involved in that process before we assumed it.
    Mr. Norwood. Well, is there anyone in the room who can 
answer that?
    Mr. Stephenson. Well, you're pointing out a problem of 
independence. If the Inspector General has produced reports on 
Superfund sites, then the Ombudsman gets an inquiry on the same 
Superfund site and finds differently than the Inspector 
General, then there may be some conflict with independence in 
that particular case.
    Conversely, in other agencies, the IG can look at the 
Ombudsman activities, so you're losing both of those aspects of 
independence when you merge the two Offices together.
    Mr. Norwood. So you actually think that's probably not a 
good idea to merge those together.
    Mr. Stephenson. That's what we've stated.
    Mr. Norwood. And I don't think there's anybody I've talked 
to or heard speak on this panel, from Members of Congress who 
don't think that it ought to be independent as well.
    How can someone who works for the EPA, even though it's an 
Inspector General's Office, who I know you say is independent, 
how can they ever come up with anything that's different from 
the EPA and I'd like somebody to tell me whenever that has 
occurred. Anybody have that answer? Back here.
    Mr. Kaufman. Ombudsman Martin in doing the mediation 
activities that Mr. Bialek says the IG is not authorized to do 
has gotten EPA 80 percent of the time to change their 
decisions. With Mr. Martin being gone, there is no function no 
in EPA to get EPA to change decisions because Mr. Bialek has 
said rightly so, the IG doesn't have that authority. It doesn't 
exist any more.
    Mr. Bilirakis. That's highly irregular.
    Mr. Norwood. I know it is, Mr. Chairman, but somebody here 
ought to be able to answer that kind of question.
    Mr. Bialek. Congressman, we issue audit reports all the 
time that take issue with the behavior, the conduct, the 
performance of EPA. We prosecute employees and officials of 
EPA. On occasions we have taken issue with the legal position 
that EPA has taken. So it's not fair to say that we don't 
object and report and disagree with EPA's decisionmaking.
    Mr. Norwood. The problem is since April, you don't have 
anything to turn to to show us that on the Ombudsman. Is that 
correct?
    Mr. Bialek. As I've said, since April, our efforts have 
been directed at going through this massive volume of records, 
very disorganized records, with no case filing to try to 
understand what the current status is of these open cases. We 
thought that was our first priority.
    Mr. Norwood. Mr. Chairman, it appears to me if Members of 
Congress really do want the Ombudsman to be independent, we've 
got to say so legislatively. It is not clear in the Solid Waste 
Disposal Act, and I can't find anywhere in the definition of 
Ombudsman does it mean independent. And you know, clearly the 
EPA is going to control that Office until we tell them 
different, where they don't have any choice. So I think that's 
the bottom line. That's the purpose of the hearing. That's why 
we're here. We want those persons are independent so they can 
actually rule.
    Mr. Bilirakis. That certainly is the purpose of the 
hearing. For the record, since we did allow irregular order, 
Mr. Kaufman, would you stand, and for the purpose of the court 
reporter state your name and your employment? He's just going 
to give you his name.
    Mr. Kaufman. My name is Hugh B. Kaufman and I was the Chief 
Investigator for the Ombudsman up until the beginning of this 
year, and the United States Department of Labor has ordered the 
Environmental Protection Agency to put me back to work in that 
job.
    Mr. Bilirakis. Thank you. Mr. Wynn to inquire.
    Mr. Wynn. Thank you, Mr. Chairman. Thank you for calling 
the hearing. I apologize for being late. I do have a couple of 
questions. First of all, in the GAO's recommendation, it 
indicates that you are to develop an Ombudsman, rather is to 
develop a written criteria for selecting and prioritizing cases 
for investigation. Has this been done?
    Mr. Bialek. The Inspector General is undertaking that right 
now.
    Mr. Wynn. So that's in process?
    Mr. Bialek. I think so.
    Mr. Stephenson. Yes, that's correct.
    Mr. Wynn. And are you required to submit that to Congress 
to this committee?
    Mr. Bialek. No, we're not required to do that.
    Mr. Wynn. Okay, are you willing to do that?
    Mr. Bialek. Absolutely.
    Mr. Wynn. Can I put it on the record a request that you 
provide us with that criteria once it's developed?
    Mr. Bialek. Of course.
    Mr. Wynn. And about approximately how long do you believe 
that will take?
    Mr. Bialek. A matter of a few weeks.
    Mr. Wynn. That would be great, thank you.
    Mr. Bialek. A few weeks, no. Wouldn't you like to get 
something a little more certain?
    I'm assuming he means at least 3 weeks, approximately the 
time just before we have----
    Mr. Wynn. We have a piece of legislation here and this 
hearing is intended to help us determine how we're--what route 
we're going to take.
    Mr. Bialek. Mr. Chairman, would you say that the date 
certain would be appropriate and if so, I would defer to the 
chairman's guidance on this.
    The Ombudsman is currently in Idaho and Washington and I'm 
not sure if her expected return--obviously, she's going to be 
the one who will be drafting these guidelines, so I'd like to 
consult with her to see what her availability is to address 
this, if you'd like.
    Mr. Wynn. Should we say 3 weeks then, Mr. Bialek? I'm don't 
mean to be unfair, but so we can be somewhat certain here. All 
right, thank you.
    Thank you, Mr. Chairman. Also, it indicates in the 
recommendations to make it a consistent policy to consult with 
Agency officials and it says other affected parties which I 
presume to be the public prior to include their comments and 
prior to making their findings, is that your practice?
    Mr. Bialek. I'm sorry, could you restate the question?
    Mr. Wynn. In its recommendations it says ``Ombudsman should 
maintain records on his investigation and other activities 
sufficient to serve as a basis for a reasonable estimate of 
resource needs. In the interest of fairness, EPA should require 
the Ombudsman to establish a consistent policy for preparing 
written reports on his investigations by consulting with Agency 
officials and other affected parties to obtain their comments 
before his findings are made public. And including written 
Agency comments when reports are published.''
    Are you consulting, is it your policy to consult with the 
public in preparing these written reports?
    Mr. Bialek. Certainly to consult with all affected parties 
and if the public is an affected party, absolutely.
    Mr. Wynn. So if you have a complaint, that that party's 
complaints would be included?
    Mr. Bialek. Absolutely.
    Mr. Wynn. Okay. Next, are other Federal Ombudsmen 
prohibited by the Agency from communicating without proapproval 
when they're communicating with Members of Congress, the media 
and the public? Is that standard government practice?
    Mr. Bialek. Not to my knowledge.
    Mr. Wynn. So this would be unique to the EPA Ombudsman?
    Mr. Bialek. Correct.
    Mr. Wynn. And what's the basis for that policy?
    Mr. Bialek. The basis is that the Office of Inspector 
General speaks with one voice, that we want to make sure when 
information is imparted, whether it's to Congress or to the 
media that it's accurate and complete and pulls from all of the 
information----
    Mr. Wynn. I think I understand, but it does seem to be then 
a very unusual policy relative to other Ombudsmen's Offices. 
Are the Ombudsman's cases currently housed in the IG's Office 
open to the public, Members of Congress and the news media? Are 
the case files open?
    Mr. Bialek. Yes. No, they're government records.
    Mr. Wynn. Are they subject to Freedom of Information Act 
requests?
    Mr. Bialek. Absolutely.
    Mr. Wynn. But that's the only way they can be obtained?
    Mr. Bialek. That's the appropriate way for them to be 
obtained from the public.
    Mr. Wynn. What about Members of Congress?
    Mr. Bialek. We follow the rules whether they're Ombudsman 
records or investigative records or audit records----
    Mr. Wynn. What specific rulemakes those records 
confidential?
    Mr. Bialek. They're not public records. They become public 
when we issue them as final reports, for example.
    Mr. Wynn. Once they're final reports, then are they public 
record, available to the public?
    Mr. Bialek. Our intention is to publish our reports 
publicly.
    Mr. Wynn. But the files themselves are only available 
through Freedom of Information, is that your position?
    Mr. Bialek. That's the typical response of any government 
agency when it comes to working paper files that support final 
reports.
    Mr. Wynn. Okay.
    Mr. Bialek. They are available----
    Mr. Wynn. That's fine. I think I understand. Now you said 
fairly emphatically that you're not going to be an advocate or 
disseminate information on operations. If a citizen complains 
or a group complains about dumping or hazardous waste that have 
not been properly handled, what is your role? I mean do you 
then take on the role of advocate for that or do you 
investigate and if, in fact, it is true, do you then press for 
prosecution, recommendation prosecution? What do you do when 
you have hard evidence provided by a member of the public?
    Mr. Bialek. If we've conducted an investigation and have 
obtained information about a violation of a law, whether it's 
civil or criminal, we pursue the appropriate remedies, whether 
that's a criminal prosecution or a civil fraud lawsuit. If 
there are violations of regulations, or other responsibilities 
and obligations by agency officials, then we issue our reports 
to publicize that.
    Mr. Wynn. Have you recommended any prosecutions, civil 
actions, fines or any action based on these findings?
    Mr. Bialek. Not since we inherited this function about 13 
weeks ago. We have been about the business of going through 
those records and making an assessment as to where we need to 
spend most of our time and attention pursuing those high 
priority cases that were left over from the previous office.
    Mr. Bilirakis. The gentleman is granted an additional 2 
minutes.
    Mr. Wynn. Thank you, Mr. Chairman. So you're looking at the 
cases now and then you're going to make recommendations?
    Mr. Bialek. Correct.
    Mr. Wynn. Do you believe it's within your purview if the 
facts support it, to become then an advocate for prosecutorial 
action, to recommend prosecutorial action?
    Mr. Bialek. Absolutely.
    Mr. Wynn. So that is going to be your policy. Okay. Now you 
made an interesting comment, I think it was Mr. Shimkus was 
asking you about quote kooky regulations and you said that if 
you found there were problems, you'd bring them, laws may be 
adversely affecting a small business, you'd bring them to 
Members of Congress. Was that your position?
    Mr. Bialek. Yes.
    Mr. Wynn. Have you reviewed the laws or complaints about 
laws in this area?
    Mr. Bialek. We have about 17 open cases right now. I don't 
know if any of them include complaints about laws themselves or 
regulations themselves.
    Mr. Wynn. So you're not aware of any problems with the law 
that might adversely affect the small business person?
    Mr. Bialek. I'm not personally aware of any right now.
    Mr. Wynn. But it's your position that if this--what's the 
criteria you would use? I guess we're kind of getting back to 
that. How do you make your decision? What's the basis for your 
decision?
    Mr. Bialek. I think that's what you asked us to produce for 
you in a few weeks from now.
    Mr. Wynn. So right now, you don't have anything is what 
you're saying? You don't have a criteria. You're just in the 
evaluation phase?
    Mr. Bialek. Correct.
    Mr. Wynn. Mr. Chairman, I relinquish the balance of my 
time. Thank you.
    Mr. Bilirakis. Mr. Norwood, an additional 2 minutes.
    Mr. Norwood. Mr. Chairman, I think we've established what I 
need to know.
    Mr. Bilirakis. Thank you. Mr. Pallone? Mr. Pallone doesn't 
wish an additional 2 minutes.
    Ms. DeGette, an additional 2 minutes.
    Ms. DeGette. Thank you, Mr. Chairman. I just have--I want 
to actually take this discussion and put it on its head for a 
minute.
    Mr. Stephenson, in agencies where the Ombudsman function 
and the Office of Inspector General are separate entities, one 
of the things that the Office of Inspector General can do is 
audit the Ombudsman, correct?
    Mr. Stephenson. Correct.
    Ms. DeGette. Now when you put the Ombudsman into the Office 
of Inspector General, the OIG can now no longer independently 
audit the Ombudsman, right?
    Mr. Stephenson. Correct.
    Ms. DeGette. Thank you. I don't have any further questions.
    Mr. Pallone. Mr. Chairman, I just wanted to enter something 
into the record, if I could.
    Mr. Bilirakis. Please describe it.
    Mr. Pallone. I would ask that correspondence relating to 
documents requested from the EPA with respect to the Ombudsman 
be inserted into the record and there's a letter from Mr. 
Dingell and myself to Mrs. Whitman and I guess a response from 
Mrs. Whitman and a letter from me to Chairman Gillmor also.
    Mr. Bilirakis. Without objection, that will be the case.
    [The information referred to follows:]
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    Mr. Pallone. Thank you.
    Mr. Bilirakis. Mr. Fabricant, what is the status of Mr. 
Martin now? What is taking place regarding his situation, if 
anything? Can you share that with us?
    Mr. Fabricant. I can generally describe for you the status. 
Again, it's in litigation. There are components of it that 
involve litigation, so I can't elaborate too deeply on it.
    Mr. Martin, in April of this year, submitted a letter 
indicating a voluntary resignation, after a United States 
District Court dismissed a case regarding Mr. Martin's 
allegations about inappropriate activity by the Agency. The 
dismissal of that action was for failure to exhaust 
administrative remedies, so Mr. Martin is now before the 
Department of Labor, actually. Office of Special Counsel is 
looking at the allegations levied by Mr. Martin and we're 
currently, administratively, litigating the concerns raised.
    Mr. Bilirakis. You're litigating those concerns?
    Mr. Fabricant. In an administrative adjudication, yes.
    Mr. Bilirakis. Administrative adjudication.
    Mr. Fabricant. Yes.
    Mr. Bilirakis. The word mediation has been presented to me. 
Is there anything to that?
    Mr. Fabricant. We are in the preliminary stages of that 
litigation and I characterize them as settlement negotiations 
and discussions of the terms of possible mediation are being 
discussed as we speak, but again, the actual terms are 
confidential in settlement negotiations and I can't go into any 
detail.
    Mr. Bilirakis. I appreciate that. Look, we have two bottom 
lines here in my opinion. One is congressional intent. Now, you 
know, maybe we weren't as clear back in the wee morning hours 
in 1984 when the Office of the Ombudsman was created in terms 
of the function and in terms of independence and things of that 
nature. But I think it's quite clear, and should be quite 
clear. I know you're counsel, you're attorneys, I'm not sure 
how much you get involved as far as the public is concerned and 
whether you go down and see what's happening with some of these 
sites, but I assure you that based on our experience in Tarpon 
Springs, Florida, there's a lack of confidence, there's a lack 
of trust, there's a lack of credibility insofar as the 
Environmental Protection Agency is concerned. And I say there 
is, while it sounds like it's just today, this actually goes 
back quite a ways back. That's why in my opening remarks I said 
this should not be a partisan thing. These problems go well 
back before this administration.
    So you good gentlemen, I'm an attorney, too, and you're 
doing your job as counsel. I just question whether you get 
involved from that standpoint and maybe your function is to not 
be concerned with all of that. Maybe your function is to have 
the blinders on and be concerned only with the legal aspect of 
it all. But I say to you, from the standpoint of the public who 
we are here to serve, it is best--no reflection on the IG--as 
Ms. DeGette said, they're a fine organization, and they do a 
great job, in general, but we don't think that their role as 
far as the Ombudsman is concerned is something that should take 
place and is taking place. But something should be continued.
    Mr. Martin, and his Investigator, in my opinion, ought to 
have something worked out with those people so they can 
continue to function. Let's not worry about turf. Let's not 
worry about the politics. Let's not be concerned about whether 
or not they rubbed us wrong in the past and everything. Let's 
be concerned about what we're supposed to be doing for our 
constituents. There's a level of confidence in these 
individuals and let's give them an opportunity to finish their 
work. I mean, maybe I've gone a little bit too far in making 
that comment, but do you have a quick comment regarding that?
    Mr. Fabricant. In general, Mr. Chairman, the Governor--
Governor Whitman shares the concerns of the committee and 
really, the goals of the committee in terms of improving the 
Ombudsman's functions within the Agency.
    We truly believe that the independence of the Agency has 
been enhanced with the shift to the Office of Inspector 
General. Although it's in its earliest stages at OIG, we think 
there's been significant headway made in terms of getting a 
handle on the case load and prioritizing and moving forward in 
a very efficient and effective fashion to resolve many of the 
conflicts on cases that are out there.
    So generally, our goals are shared. I will report back to 
Administrator Whitman your concerns on the other matters, 
including Mr. Martin, but again, we're in the context of 
litigation and we will be continuing those discussions with Mr. 
Martin.
    Mr. Bilirakis. You use the term getting a handle on it. 
We've talked about the boxes and boxes that they haven't had an 
opportunity to go through yet. They've mentioned in Tarpon 
Springs this last Saturday morning and we're talking about a 
huge gap of time here.
    So why should they have to get a handle on it? Why should 
the gap take place and all that when we've got people who are 
experienced and have been involved from a consistency and 
stability standpoint? Let them finish their work. That would be 
the easiest way in my opinion, and any way you look at it, that 
would be the easiest way to go.
    Now I'm not trying to put the EPA in a position where they, 
in the process of mediation or negotiation or whatever the case 
may be, don't have a position. You've got to have a position, 
and hopefully, if we're talking true mediation, we're talking 
give and take. And hopefully that is going to be the case on 
everybody's side.
    Well, all right. Having said all that I do want to thank 
you, gentlemen, for--Mr. Shimkus. John, I apologize, you snuck 
in on me.
    Mr. Shimkus. I'm sorry, Mr. Chairman.
    Mr. Bialek. Please proceed if you'd like to inquire.
    Mr. Shimkus. Just a quick question, a follow-up. What is 
the problem with a view that an Ombudsman should be involved in 
addressing disputes from the citizens in an external position 
versus the critical role that the IG plays internally?
    And I'd like to start with Mr. Stephenson. Based upon that 
definition of an Ombudsman, is the Ombudsman's role 
historically defined as doing both external and internal? 
Because I know the role of the IG, in my experience with IGs 
has been internal aspect and internal issues within 
organizations.
    Let's start with Mr. Stephenson?
    Mr. Stephenson. As typically defined, the Ombudsman is an 
informal problem resolver, an unencumbered problem solver 
between the public and the Agency head.
    Mr. Shimkus. So that kind of supports my basic premise.
    Mr. Bialek, do you have a problem with that definition?
    Mr. Bialek. We do both internal and external, but I think 
it probably depends again on your definition. If you define 
external as going after contractors or going after grantees for 
having engaged in misconduct, we do that and that's external. 
We define internal as employees of EPA and the EPA programs and 
trying to correct problems----
    Mr. Shimkus. I would define internal contractual problems 
as being part of the EPA because you're contracting, you're 
going into an agreement. My issue is who is speaking for the 
individual citizen and that's where I think my argument would 
be that maybe inside the IG, not disputing the work that you 
do, is better, more defined by what Mr. Stephenson has defined 
as the role of Ombudsman.
    Mr. Fabricant, do you have anything you want to add to 
this?
    Mr. Fabricant. Congressman, just generally, again the 
Office of Inspector General submits reports to the 
Administrator regarding the activities of EPA onsites and would 
be appropriately able to submit those reports and again, we 
take the recommendations and move forward accordingly with 
those recommendations.
    There are both functions, internal within EPA and EPA 
activities as well as external.
    Mr. Shimkus. Well, put me down in a position that I think 
they should be separate and in two different locations. I think 
I'm making my point fairly clear.
    Mr. Bialek, all these--what are you doing with all these 
boxes that--can you just briefly tell me what you've had to do 
since the receipt of all this information once you took over 
the oversight? I'm not a lawyer, so--once you've taken over the 
Ombudsman Office and brought it into the IG.
    Mr. Bialek. If I can just follow-up 1 minute on your last 
issue----
    Mr. Shimkus. You're not going to convince me----
    Mr. Bialek. No, I just want to make it clear. I didn't want 
to mislead anyone here. I think Congresswoman DeGette asked a 
question about public hearings. Although we have not had public 
hearings in the sense that I think of a hearing with a 
magistrate and testimony, we have held public meetings and we 
will continue to hold public meetings. I don't want these 
committees to think we do not intend to engage in or maintain a 
dialog with members of the public.
    That's the first point.
    The second, to answer your question, there is a certain 
organization that needs to be brought to these records. They 
were in total disarray when we got them. We need to understand 
what has been done, what the status is of what was done by the 
prior group and what's happened since then. As we've said, 
they're voluminous records and we've been trying to understand 
their current status. We have asked--we have invited Mr. Martin 
to come in and meet with our Acting Ombudsman to try to assist 
us in that endeavor and then we will be able to move out and 
launch our teams to go pursue those open priority cases.
    Mr. Shimkus. Mr. Chairman, I'll yield back my time, thank 
you. Thank you, Panel.
    Mr. Bilirakis. If Mr. Shimkus will yield to you.
    Mr. Shimkus. I'd be happy to yield for my friend from 
Georgia.
    Mr. Norwood. The records were in total disarray that you've 
got. Doesn't that have a lot to do with the fact that the EPA 
was steadily undermining the Ombudsman's Office with this 
budget by cutting it, reducing it, lowering it? We don't want 
to hear from you. We'll cut your money out from under you. 
Isn't that why you have boxes that's in disarray?
    Anybody? Mr. Fabricant?
    Mr. Fabricant. Congressman, I wouldn't speculate as to why 
the boxes.
    Mr. Norwood. You can then speculate on did their budget get 
cut?
    Mr. Fabricant. No, again, the budget has been increasing 
over time, dramatically. It's doubled in----
    Mr. Norwood. Now we have other witnesses that are coming up 
next that I'm going to ask this same question to.
    Mr. Fabricant. The budget has doubled between 1999 and 
2001, so there's been incremental increases over the last 
several years to improve the budget and the finances of the 
Ombudsman function.
    Mr. Norwood. I'm going to remember that now because I'm 
going to ask that same question to the next panel and they're 
going to tell me why that budget may have been doubling, but 
they weren't getting it.
    Thank you, Mr. Chairman.
    Mr. Bilirakis. All right, well, again as I started to say, 
our gratitude to you. As some of you know, we always have 
written questions that we'd like to submit to the panelists and 
you would be agreeable to responding to those, and again, we 
thank you.
    I don't know if we proceed forward with this legislation 
regarding the true independence that was intended by Congress 
initially. I would hope that you all will be cooperative in 
that regard, even while there's always a concern about the 
unintended consequences and things of that nature. So 
hopefully, you all will be helpful and Mr. Stephenson, 
obviously, we would depend upon you greatly.
    Thanks for all your time. Thank you very much.
    We'll call the second panel, Mr. Robert Martin. It says 
here ``Citizen.'' Come on up here, Citizen. Former Ombudsman, 
obviously. And Ms. Heather Malinowski, Secretary, Pinellas-
Pasco Technical Assistant Grant, fondly referred to as Pi-Pa/
TAG from Tarpon Springs, Florida.
    You've both submitted written testimony and what we would 
hope you would do is sort of complement, supplement that 
testimony, summarizing it, if you can. I'll set the timer on 5 
minutes and hopefully, you'll finish within that period of 
time. If you run over somewhat, no problem, you've sat around 
and been patient for quite a while here.
    So Mr. Martin, why don't we just start off with you?

    STATEMENTS OF ROBERT J. MARTIN; AND HEATHER MALINOWSKI, 
           PINELLAS-PASCO TECHNICAL ASSISTANCE GRANT

    Mr. Martin. Thank you, Mr. Chairman. Can I be heard?
    Mr. Bilirakis. Your mike, your mike.
    Mr. Martin. How about now?
    Mr. Bilirakis. Now we can hear you.
    Mr. Martin. All right, thank you very much, Mr. Chairman, 
and for accepting my testimony into the record. I would like to 
touch on several points thematically as we proceed to consider 
what's become of the Office of Ombudsman.
    First, I would like to note that true independence of the 
EPA National Ombudsman function has always been an issue within 
the EPA, at least during my tenure and that's been, that was 
9\1/2\ years which is to say, Mr. Chairman, that problems 
around independence don't go to merely--I'll just say, one 
administration or another. It's always been a problem, as 
you've noted in your own Ombudsman case in Tarpon Springs. I'm 
sure people in Idaho can tell stories. I'm sure people in Ohio 
can tell stories and in Colorado.
    I think that's an important tone to set as we proceed to 
deliberate, but I must note that the EPA National Ombudsman 
function, as it existed during my tenure, has been dissolved 
and that there is not now an Ombudsman function. The critical 
independence of the Ombudsman was removed entirely and I say 
this based upon the elimination of my position description 
which provided that I would have quote unquote maximum 
independence in doing this job on behalf of the American 
people.
    Also, the ability to define a problem, I mean just to say 
hey, I think we've got a problem here. That's very important in 
a bureaucracy. It's very important in government to be able to 
say so publicly, especially to people in communities who often 
feel very distant from their government. That ability was also 
removed. And that's really important because if you can't do 
that, you can't stand up for them and whether it's the 
MacIlmurray family in Georgia or folks in Overland Park in 
Denver, folks in Tarpon Springs, on a much larger scale, people 
in lower Manhattan, affected by the collapse of the World Trade 
Centers, if you can't say I think we have a problem, as an 
Ombudsman, you don't have an Ombudsman and people don't have 
help and that's wrong. And I would not agree with that. And 
that's why I resigned.
    I do not believe the EPA National Ombudsman function can 
exist within the EPA Office of Inspector General, both as a 
legal and a practical matter. And that's not to say that the 
Inspector General Office, that they're bad people. I'm sure 
they're good people and they do a good job as OIG, but they're 
not an Ombudsman. They can't be.
    And I feel that by the dissolution of the EPA National 
Ombudsman function, American communities, American people that 
live in proximity to Superfund sites or hazardous waste and I 
think that's as many as 1 in 4 in the United States and that's 
quite a lot, have lost something. They've lost at a very 
critical time--it's always a critical time. Ombudsman 
attributes of truth and openness and a commitment to listening 
and I'll just say it, without a true EPA National Ombudsman 
function, communities are at risk from an unchecked bureaucracy 
and that's again not to say that EPA is full of bad people. I'm 
not here to pound that. But there needs to be checks and 
balances so that people get listened to when they've got a 
problem and that their problems get fixed when they need to be 
fixed and that's what I stood for in the job and I don't think 
that's going to happen now. I may be wrong, but I don't think 
it's going to happen.
    So I'm here to ask you to listen to that and also your own 
folks and to say that a truly independent National Ombudsman 
function needs to be established in law for the benefit of the 
American people. I think the legislation needs to be worked on 
and reported out of this committee and passed by the Congress. 
I think the Ombudsman needs to be separate, needs to be truly 
independent so that people can get the help they deserve. And 
we're not talking here about giving an Ombudsman function all 
kinds of power or billions of dollars of money. I was very 
clear. For many years, I had no power. Other people at EPA have 
decisionmaking power. My only power was to go where people were 
and listen and come back and say I think we've got a problem. 
Let's see if we can fix it. Can we agree we have a problem that 
needs to be fixed? And that's really important. We don't have 
that right now.
    I guess factually, I'd like to take issues with a few 
matters, that the records were in total disarray which I 
maintained as Ombudsman, I disagree. I feel the records were 
very well maintained and I know if I had to, I could find 
whatever I needed to within an hour on any case around the 
country.
    Also, I've received no invitation to speak to the Inspector 
General or for that matter to anyone in EPA, following my 
resignation and I would like to note that the resignation, in 
my view, was made under duress. I felt I had no choice. I have 
consistently tried to work out any problems that I have with 
the EPA. I think many of the folks who you represent would say 
the same for themselves, that they try.
    There is the prospect of a mediation, but there is no 
mediation yet. And I can say that I have offered, in good 
faith, to go to the table with EPA and work out a return, 
solely for the purpose of finishing these cases. And then I'll 
go.
    The Agency has not responded to that and I think it's 
vitally important that the work which was begun, whether it's 
in Tarpon Springs or Augusta, Georgia or Lower Manhattan, gets 
finished and gets finished with integrity.
    I think frankly, as Mr. Norwood spoke earlier, the rest is 
up to Congress to make sure that this function, this Ombudsman 
function, has the right kind of charter and that it's separate 
and independent and then hopefully the rest will be history. 
But I do take issue with that.
    Also, I'd like to note that over time, I have offered to 
meet the Administrator, to work out any potential differences 
around the placement of the Ombudsman function. That never 
happened. There's been no response and never was a response to 
that. Instead, there was a decision, in my opinion, dissolve.
    So I guess that's what I've got to say for the moment. I'm 
glad to receive any questions that any member and I thank you.
    [The prepared statement of Robert J. Martin follows:]
                 Prepared Statement of Robert J. Martin
    Thank you Mr. Chairman and distinguished members of the Committee 
for the opportunity to appear and testify before you in connection with 
recent developments in the EPA Office of the Inspector General. 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. Sec. 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, Sec. 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, Sec. 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. Sec. 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. Sec. 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. Sec. 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, Sec. 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, Sec. 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 Sec. 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. Sec. 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. Sec. 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.

    Mr. Bilirakis. Thank you, Mr. Martin.
    Heather, please speak into the mike and tell us why you 
feel that there is a great need for independence for the 
Ombudsman's Office?

                 STATEMENT OF HEATHER MALINOWSKI

    Ms. Malinowski. Is this mike on?
    Mr. Bilirakis. It's on.
    Ms. Malinowski. Okay, thank you for giving me the 
opportunity to speak to you today. My name is Heather 
Malinowski. For 7 years I've been Secretary of a community 
group in Tarpon Springs that's involved with the clean-up of 
the Stauffer Chemical Superfund site. We hold an EPA technical 
assistance grant in order to provide information to the 
community about the site. And I'm here to tell you our story as 
it relates to the Office of the EPA Ombudsman.
    I want to start by saying that the State of Florida rests 
on a base that's made up largely of limestone which is a soft 
rock and when limestone is exposed to water filtering down 
through it, it dissolves and it forms caverns and craters and 
tunnels and so it's a very econologically fragile type of 
environment in certain areas, not the whole State.
    The Stauffer Chemical Plant is situated in one of these 
areas where sinkholes are very common because of this 
geographical--the big problem about this is that just 
underneath this lies the Florida aquifer which serves as the 
main source of drinking water for most of the people that live 
in the State. Stauffer Chemical was a phosphate processing 
plant. It is located in a residential community. It's across 
the street from an elementary school. And it's located right on 
a small body of water, the Anclote River, just before it 
empties into the Gulf of Mexico.
    When they closed down in 1981, they left behind over 
500,000 tons of chemical and radiological contaminants. These 
contaminants were buried in drums. They were poured into 
unlined pits. They were poured directly on to the ground. For 
years, they've been washing into the Anclote River and 
filtering down toward the aquifer. The more superficial layers 
of the aquifer are already contaminated.
    The site was placed on the national priority list in 1994. 
EPA Region 4 has mismanaged this site and I want to tell you 
just a few of the things that were most upsetting to us. First 
of all, they refused to honor the State of Florida's clean-up 
goal for arsenic. They promised us that they would give us 
residential standards in the clean up because it's located in a 
residential community. But when we received the Record of 
Decision with the little chart that tells you what the clean-up 
goals will be, the part about arsenic was blank. And there was 
a note that said when they clean up all the other contaminants, 
they assumed that arsenic would be cleaned up also.
    And when we asked them why this was the case and why they 
didn't actually give us the standard, they said don't worry, 
you're going to get your residential standard as we promised. 
Well, with much digging and no help from EPA, we found that 
residential standard is a relative term and what they planned 
on doing was regulating arsenic as a common poison instead of a 
carcinogen because that would be much less protective, but they 
didn't actually want it in the document.
    Also, they ignored concerns expressed by the State 
Environmental Protection Agency, by the County Health 
Department and by the Technical Advisors that we had hired. 
Stauffer proposed containing all the contaminants onsite, but 
it was a decision that was based on inadequate data because 
they never finished the geophysical studies that would show 
whether or not the area was going to be prone to sinkhole 
formation. They never performed the geological, hydrogeological 
studies that would tell where the water, which was already 
contaminated was flowing to. And they never checked to see if 
the cement that they planned on mixing with the contaminants 
below the water table, they didn't check to see if that would 
leach. And it's known that that cement will break down with 
exposure to salt.
    But the worst thing that they did in September 1999 was to 
send the Consent Decree to the Justice Department which was 
based on these inadequate studies. We asked them not to send it 
and they refused. They went ahead and they did.
    In December 1999, the Ombudsman Office began an 
investigation into the site. As a result of that investigation, 
the EPA and Stauffer decided that they would accept the State's 
arsenic standard, the industrial standard, not the residential, 
but it was still much better than what they had planned on 
doing.
    They also stopped ignoring all the reviewers. There was 
communication and coordination between all the levels of 
reviewers, the State, the county, our people. They withdrew the 
Consent Decree and they began working up work plans for these, 
what they called additional studies, but what really should 
have been part of the feasibility study. And also, two new 
things that happened. They brought in the U.S. Geological 
Survey which was wonderful because those are the experts in the 
geology down there and it was also revealed that there had been 
corporate and financial maneuverings and that a new company had 
taken over and had not been thoroughly investigated as to their 
ability to cover the costs.
    Residents and elected officials really believed that 
progress had been made. We were ecstatic. We really felt we 
were doing well. And then in June 2000, the system began to 
fall apart. As Congressman Bilirakis said, there was a town 
meeting scheduled where all the reviewers were going to come 
together and talk about the amended Consent Decree. EPA sent 
two staff members. They showed up. They said they would make a 
brief presentation. They would stay and answer questions for 10 
minutes, as long as they strictly were to their presentation, 
which was really just reading the list of changes and telling 
us what pages to find them on. And then under questioning, they 
just got up and they refused to answer questions and they 
walked out, in full view of the television cameras with 
Congressman Bilirakis and Mr. Martin and Mr. Kaufman telling 
them that they should stay.
    The second thing that happened is--well, the next thing 
that happened, everybody knows. Mr. Martin was not able to 
control his staff any more. In December of 2000, the 
Investigator, Mr. Kaufman was told that he could no longer work 
for that office and Mr. Martin was reminded that he had no 
authority over his own staff, whether or not to keep them or to 
let them go.
    And eventually, the Ombudsman Office became crippled. It's 
been 2 years since what we call the walkout meeting occurred 
and we've been waiting. There was a brief period of hope and at 
this point the people in the community have no faith in this 
Agency. We do not believe that they will do the right thing 
here.
    As to the transfer of the Ombudsman Office to the Inspector 
General, I think that's been covered. I probably don't need to 
talk about it, but I will say that looking back in history, 
there have been times when injustices went on for much longer 
than they should have because there was someone willing to step 
into the job of another person who was refusing to accept a bad 
situation and we believe that this is the case here.
    We understand that the large issue is the long-term 
stability and effectiveness of the Ombudsman function, but I do 
need to say something about Mr. Martin. Many people start out 
with integrity, but I believe sometimes it takes a great deal 
of courage to maintain that integrity in certain situations. 
Mr. Martin has exhibited both of these qualities, integrity and 
courage in very large measure. The only criticism we've heard 
is that his files were messed up, but he was obviously trying 
to function with very little support of staff. We believe he 
should be given the support and the resources he needs to do 
his work and to set the standard for others who will follow 
him.
    I've come here with two requests. The first one is very 
selfish and if at some point there's an opportunity for you to 
be supportive of mediation, we would really ask that you would 
do this because we would really like to see Mr. Martin and his 
investigator returned to our site and the other sites and 
finish the work that they're already very involved in. These 
are all sites with serious problems. And the second, of course, 
is to be supportive of this piece of legislation. It's really 
deserving of nonpartisan support. This is a democracy and 
everybody can agree that government agencies need to be 
accountable to the people that they were formed to serve.
    Thank you for listening to me. I'd be glad to answer 
questions.
    Mr. Bilirakis. Thank you, Heather.
    Ms. Malinowski. I would like to add one more thing.
    Mr. Bilirakis. Add one.
    Ms. Malinowski. The Inspector General and the new Acting 
Ombudsman did visit our community over the weekend and what was 
revealed at that point is that someone did ask them to 
intervene 3 years ago in our situation and they did not. The 
woman who had made the request made the point that if they had 
done their job at the time, we never would have needed the 
Ombudsman Office to come down and help us.
    Thank you.
    [The prepared statement of Heather Malinoski follows:]
  Prepared Statement of Heather Malinowski, Secretary, Pinellas-Pasco 
                       Technical Assistance Grant
    Dear Sirs: I would like to thank you, Chairmen Gillmor and 
Bilirakis, Ranking Members Pallone and Brown, and Members of the 
Subcommittees for giving me the opportunity to testify before you 
today. My name is Heather Malinowski, and I am secretary of the 
community group Pinellas-Pasco Technical Assistance Grant, known as Pi-
Pa-TAG.
    Pi-Pa-Tag, Inc., holds a Technical Assistance Grant to provide the 
community with information concerning the cleanup of the Stauffer 
Chemical Superfund Site in Pinellas County, Florida, under EPA 
Assistance Agreement number 1994931-01-0. Our newsletter reaches over 
seven hundred concerned citizens at the intersection of Florida's 
Pinellas and Pasco counties.
                           opening statement
    We are writing on behalf of the community living in the vicinity of 
the Stauffer Chemical Superfund Site in Tarpon Springs, Florida, as 
well as others across the nation who may have been adversely affected 
by hazardous waste sites located in their communities.
    I am presenting this testimony on behalf of the entire Board of Pi-
Pa-TAG, Inc. With this letter, we would like to express our complete 
and unconditional support for the creation of an independent, fully 
staffed and funded, EPA National Ombudsman Office.
    We request that this letter be included as testimony in the 
Subcommittee hearing record.
                     st. petersburg times editorial
    On August 30, 2000, a St. Petersburg Times Editorial began with the 
following words:
    ``No one will ever accuse the U.S. Environmental Protection Agency 
of learning a lesson the easy way. While seeking judicial approval of a 
controversial cleanup plan for the Stauffer Chemical Superfund site, 
EPA officials offended U.S. Rep. Mike Bilirakis, fought with the 
Florida Department of Environmental Protection, ignored Pinellas County 
health officials and angered Tarpon Springs residents.''
    The editorial then went on to describe a few of the many events 
which have led to the loss of public confidence in this federal agency.
    I would like to tell you our story, as it applies to the EPA 
National Ombudsman Office.
      stauffer chemical superfund site in tarpon springs, florida
    The State of Florida rests on a base made up largely of limestone, 
a soft rock, which on exposure to water filtering through it, 
dissolves, forming craters, caverns and tunnels. As Florida is a watery 
place, surrounded by the Gulf of Mexico and the Atlantic Ocean, and 
replenished heavily with water during the summer rainy season, the 
conditions for these geological transformations are both regular and 
frequent. In specific areas, the formation of sinkholes is very common.
    At the heart of this foundation formed of limestone, clay and sand 
lie the Florida Aquifer Systems which serve as the drinking water 
supply for the vast majority of Florida residents.
    The Stauffer Chemical Superfund Site is located in Tarpon Springs, 
Florida, one of the areas which has often been subject to the formation 
of sinkholes. Situated in the midst of a thriving residential community 
and across the street from an elementary school, the site sits on the 
bank of a small waterway, the Anclote River, just before it empties 
into the Gulf of Mexico. It is located very close to the Greek ``Sponge 
Docks'', a prime center for the tourist trade upon which this area 
heavily depends. Nearby is an estuary which serves as the breeding 
ground for a once-thriving, but now struggling, local fishing industry. 
It is a beautifully picturesque, but also an ecologically fragile 
environment. Because of its coastal location, the area is annually 
subject to potential flooding, storm surges, as well as hurricanes.
    This phosphate ore processing plant closed down in 1981, but left 
behind approximately 500,000 tons of chemical and radiological 
processing wastes, buried in drums, poured into unlined pits, and 
sometimes directly onto the ground. For years, these contaminants have 
washed into the Anclote River and filtered down toward the main Aquifer 
System. The site was placed on the federal EPA National Priority List 
of Superfund Sites in 1994.
    Stauffer Management Company (SMC), with the approval of EPA Region 
4 personnel, proposed containing all the contaminants onsite, rather 
than removing them.
    They did this without first completing the geophysical studies 
needed to properly characterize the site and to determine the potential 
for sinkholes.
    They did this without first completing the hydrogeological studies 
needed to determine exactly which directions the already contaminated 
water in the superficial layers of the Aquifer System was flowing.
    They did this without even determining whether or not the semi-
cement mixture, which was intended to be mixed with the contaminated 
soil below the water table, and which is known to break down upon 
exposure to salt water, could keep the contaminants from leaching out.
    Residents repeatedly questioned the safety of these plans, and were 
told that their questions would be answered later. What they were not 
told was that, in September 1999, over strong objections raised by 
community members, EPA Region 4 and SMC planned to go ahead and sign a 
Consent Decree in court, which would establish the containment method, 
chosen on the basis of inadequate data, as the valid cleanup plan for 
this site.
    While EPA Region 4 would continue to communicate with local 
residents, the important decisions would have already been finalized.
    Involved residents were outraged. The community was being 
effectively barred from any further meaningful participation in the 
process that would determine the fate of precious community resources. 
EPA was asked to withdraw the Consent Decree until crucial studies had 
been completed and valid scientific questions had been answered.
    They refused.
other controversial epa region 4 actions at the stauffer superfund site
    * EPA Region 4 refused to honor, or even to acknowledge, the State 
of Florida's Soil Cleanup Target Level for Arsenic of .8 parts per 
million (ppm) for residential areas.
    * EPA Region 4 attempted to mislead residents into believing that 
the arsenic on the site would be cleaned up to the promised residential 
standards (.8 ppm), when their intention was, in reality, quite 
different. They had decided to regulate arsenic in soil as a common 
poison instead of as a carcinogen, which would have allowed them to 
apply a much less stringent cleanup level of 21.1 ppm. They continued 
to tell the community that they were using residential standards, but 
neglected to mention that ``residential standards'' was a relative 
term, and that the residential standard for a poison was much less 
protective than the residential standard for a carcinogen. Arsenic is 
known to be a Class A Carcinogen.
    * EPA Region 4 shelved and ignored specific reviews and 
recommendations from the Florida Department of Environmental Protection 
(FDEP), as well as reports submitted by a university toxicologist hired 
as a scientific advisor by the state agency.
    * EPA Region 4 ignored the Pinellas County Health Dept. / Dept. of 
Environmental Engineering, in spite of their repeated attempts to have 
input into the process.
    * In spite of having granted a Technical Assistance Grant (TAG) to 
the community group Pi-Pa-TAG, Inc., EPA Region 4 dismissed concerns 
raised by the group on the advice of their independently hired 
technical advisors.
  epa national ombudsman investigation at the stauffer superfund site
    Three months later, in December 1999, at the request of Congressman 
Mike Bilirakis, the EPA National Ombudsman Office began an 
investigation into issues related to the Stauffer Chemical Superfund 
Site. As a result of information brought to light as part of the 
ongoing Ombudsman Investigation:

1- EPA Region 4 & Stauffer Management Company (SMC) agreed to withdraw 
        the Consent Decree from the Department of Justice, and to begin 
        drawing up workplans for the additional geophysical and 
        hydrogeological studies which need to be completed for accurate 
        site characterization. These workplans were to be reviewed in 
        the course of the Ombudsman Investigation.
2- EPA Region 4 agreed to include the US Geological Survey (USGS) as 
        reviewers of the workplans and additional study data, when it 
        was completed.
3- EPA Region 4 & Stauffer Management Company (SMC) agreed to honor the 
        State of Florida's Arsenic Soil Cleanup Level for industrial 
        use (3.7 ppm), which is much more protective than the level 
        initially proposed (21.1 ppm).
4- It was revealed that corporate and financial maneuverings had 
        recently taken place, and that EPA Region 4 had allowed a ``new 
        company'' to sign the Amended Consent Decree, without first 
        performing a thorough investigation into the financial standing 
        and reliability of the new company to assume the responsibility 
        of covering the costs of the cleanup.
    Residents in the community and their elected officials believed 
that much progress was being made. After years of conflict and delays, 
communication was finally being facilitated between all the involved 
parties, and the Superfund process was finally getting back on track.
    Then, in June 2000, the system fell apart.
    A Town Meeting had been scheduled by Congressman Bilirakis' office, 
at which the Ombudsman Office was to hold the Third Public Hearing for 
the purpose of reviewing changes which had been made to the newly 
Amended Consent Decree. The meeting was to be attended by all the 
various reviewers (State of Florida, Pinellas County, TAG Advisors), 
and members of the community.
                    ombudsman funding request denied
    Shortly before the Town Meeting, we received word that the EPA 
Ombudsman and his Chief Investigator would not be able to attend the 
meeting. Their Request for Funding Approval had been denied, and they 
had been told that they were to apply their resources elsewhere. It was 
only after Congressman Bilirakis and a few other Congressional Members 
discussed the matter with then-EPA Administrator Carol Browner, that 
the funding was approved, and the meeting could proceed as planned.
        agency refusal to cooperate with ombudsman investigation
    The Town Meeting took place on June 5, 2000. The two previous 
Ombudsman Hearings had been attended by EPA Region 4 staff representing 
all five levels of authority--from the Regional Administrator down to 
the Remedial Project Manager for the site. In contrast, only two EPA 
Region 4 employees attended this particular meeting. They informed the 
group assembled that they had their own plan. They would make a very 
brief presentation (basically, reading a list of changes made to the 
Amended Consent Decree, and indicating what pages these changes were to 
be found on). They would then spend ten minutes responding to 
questions, which they said must be strictly limited to their 
presentation, and then they would leave. Which they did.
    Refusing to answer any further questions, over the strong 
objections voiced by Congressman Mike Bilirakis, Ombudsman Bob Martin, 
and Investigator Hugh Kaufman, and in full view of television cameras, 
the EPA Region 4 employees got up and walked out of the meeting.
            ombudsman denied right to maintain his own staff
    The next assault on this office occurred in December 2000. At that 
time, the Chief Investigator for the Ombudsman Office was denied 
permission to do any more work for that office, and the Ombudsman was 
informed (or reminded) that he did not have the right or the authority 
to control his own staff.. Hiring and firing was under the direct 
jurisdiction, and at the discretion of, his supervisors in the Office 
of Solid Waste and Emergency Response (OSWER).
    With the expulsion of the Chief Investigator, who was intimately 
involved in the cases, the office struggled and foundered, and 
ultimately had to suspend work on most of their current investigations.
                           current situation
    Two years have now passed since what we refer to as ``The Walk Out 
Meeting'' occurred, the occasion when EPA's initial resistance to the 
Ombudsman Investigation in our community gave way to outright 
obstruction, to be followed by the eventual crippling of that office.
    After a brief period of hope, when during the Ombudsman Hearings we 
saw EPA finally becoming responsive to the concerns expressed by the 
TAG Advisors, the Florida Department of Environmental Protection 
(FDEP), the Pinellas County Health Dept. and members of the community, 
we now have no faith that the agency will really do what the former 
U.S. EPA Assistant Administrator Timothy Fields had promised, in 
person, on November 16, 1999: that the agency would ``do right by this 
community''.
    The Independence of the EPA National Ombudsman Office has been a 
fantasy.
                     purpose of an ombudsman office
    In July 2001, the General Accounting Office (GAO) issued a Report 
entitled: ``EPA's National and Regional Ombudsmen Do Not Have 
Sufficient Independence''
    On the first page of the GAO report, it states that, ``In 
particular, ombudsmen help federal agencies be more responsive to 
persons who believe that their concerns have not been dealt with fully 
or fairly through normal problem-solving channels.''
    And why would normal, problem-solving channels not be sufficient?
    Perhaps there are many reasons. One important reason has to do with 
what Professor Larry B. Hill (Professor of Political Science, 
University of Oklahoma) refers to as, ``the institution's relevance to 
the issue of the emerging relationship between bureaucracy and 
democracy.''
    While on the one hand, we extol the importance and benefits to 
society which can only be gained through participatory democracy, the 
immense size and complexity of our governmental structures threaten to 
dwarf and crowd out the role played by individual citizens. The 
fortress-like structure of a bureaucracy can become impenetrable to 
private citizens. A bureaucracy can sometimes function with the cold, 
unreasoning efficiency of a machine which has been rigidly programmed, 
remaining unresponsive to any new or unfamiliar input.
    For this reason alone, there need to be mechanisms which can, in 
the words of the GAO Report, ``provide the public an informal and 
accessible avenue of redress''.
    transference of epa national ombudsman office to epa inspector 
                            general's office
    EPA Administrator Christie Whitman has recently transferred the EPA 
National Ombudsman Office to a position within the EPA Inspector 
General's Office. In our opinion, this is a step in the wrong 
direction.
    Faced with a GAO Report indicating the need for Independent 
Ombudsmen, the agency seems to be desperately attempting to avoid 
establishing a truly Independent Office, by announcing this pseudo-
compliance with the recommendations made in the GAO Report.
    We do not believe that this move would establish an Independent 
Ombudsman Office by a long shot. It does not give the Ombudsman control 
over prioritizing and choosing cases, over deciding what level of 
involvement the Ombudsman Office will have in each case chosen, over 
how the Ombudsman Office budget will be allocated, or over the hiring, 
supervising and dismissing of office staff.
    The United States Ombudsman Association (USOA) has stated that 
``the most important element in the design of an effective ombudsman's 
office in government is structural independence, that is, structurally 
separating the ombudsman from the agency under the ombudsman's 
jurisdiction.'' They have criticized the above transference as being an 
ineffective step towards the goal of creating a truly Independent 
Ombudsman Office.
    The United States General Accounting Office (GAO) has stated that, 
``If the EPA intends to have an Ombudsman function that is consistent 
with the way the position is typically defined within the ombudsman 
community, placing the national ombudsman within the OIG does not 
achieve that objective.''
    EPA has stated that the Inspector General Office is the only 
independent office within the agency. Our response to this is that it 
is time for them to establish another one.
                                 hr1431
    To these ends, we respectfully request that you give your full 
support to the Ombudsman Reauthorization Act of 2001 (HR1431).
    This piece of legislation is well-deserving of complete bipartisan 
support, as everyone can agree with the concept that, in a democracy, 
government agencies must remain accountable to the citizens they were 
created to serve.
    An Independent National EPA Ombudsman Office can be one of the most 
valuable and powerful tools we are able to establish in seeking to 
ensure that the federal EPA exhibits this accountability. It would be a 
commitment to maintaining a system of Quality Control, and where 
needed, would help to legitimize the Superfund Process in communities 
where the agency has assumed jurisdiction for remediating toxic waste 
sites.
                     st. petersburg times editorial
    The St. Petersburg Times ends their August 30, 2000 Editorial with 
the words, ``We now know there is no substitute for vigilance in the 
Superfund process.''
    Please support this Ombudsman Office which has acknowledged public 
vigilance and worked to safeguard, not only community resources, but 
also the process of democracy-in-action at the community level.
    Thank you for your consideration of this matter of such great 
importance to affected citizens.

    Mr. Bilirakis. Thank you. Let's see. Mr. Martin, you 
served, in my opinion, with distinction as an Ombudsman. Did 
you have complete independence to determine what cases should 
be opened, and what cases should be closed? Can you go into the 
process there for us?
    Mr. Martin. Sure. I had uncomfortable maximum independence.
    Mr. Bilirakis. Uncomfortable. Why don't you go into that?
    Mr. Martin. Which means that I got some very nasty problems 
to look at and some very controversial matters. I would say 
yes. I made the calls as I saw them and that's because I had a 
job description which provided for maximum independence. That 
protected that ability, but I did make those calls. I made them 
as long as I could until I couldn't make them any more.
    Mr. Bilirakis. I guess I don't quite understand. At what 
point were you not able to make them any more?
    Mr. Martin. I'm sorry, sir. When the temporary restraining 
order awarded by Federal Judge Roberts was vacated, not on the 
merits, but to move the case to the Office of Special Counsel 
for administrative pursuit of remedies, when that TRO was 
vacated, within hours there was communication to, in my 
opinion, dissolve the function and my position description 
along with it. It was at that time while I was away on official 
travel to New York and to Colorado, that I ceased to have the 
ability to make those calls.
    Mr. Bilirakis. Let me ask you though, prior to that when 
you were in the office during all these years, did you have the 
independence to open cases, to decide what cases you would work 
on, that sort of thing?
    Mr. Martin. I had the independence to select cases and that 
independence has been removed by the transfer to the Office of 
Inspector General, clearly. What was lacking is the ability to 
control the case once I had decided it needed to be----
    Mr. Bilirakis. But let's go back to that June 5, 2000 town 
meeting that Ms. Malinowski referred to and I referred to 
briefly earlier. And I know that your plan was to come down for 
that gathering. We coordinated the dates and the time and 
location and everything all together, and did you run into a 
problem there?
    Mr. Martin. Yes, I did.
    Mr. Bilirakis. What was that problem?
    Mr. Martin. The problem was that the travel was being held 
up. I needed authorization to travel as did my former Chief 
Investigator to do the hearing in Tarpon Springs.
    Mr. Bilirakis. So you weren't completely independent?
    Mr. Martin. No. And I think the GAO has pointed out in what 
respects there was no independence.
    Mr. Bilirakis. Did you have at any time the authority to 
hire, to fire, to supervise your own staff?
    Mr. Martin. No.
    Mr. Bilirakis. I seem to recall that you had the Chief 
Investigator. How many permanent employees or staffers did you 
have?
    Mr. Martin. Well, first, I didn't have any staff because 
I'm now allowed to hire, fire or supervise. So that needs to be 
made clear. The same goes for the budget. I mean there can be a 
budget, but I had no authority to supervise the budget.
    I had over the course of 9 years, on and off, one person to 
help me.
    Mr. Bilirakis. And that one person was the Chief 
Investigator?
    Mr. Martin. Yes, and intermittently, one other man, Mr. 
Bell, who helped me in a couple of cases. That's it.
    Mr. Bilirakis. And those people were assigned to you by the 
particular office----
    Mr. Martin. By them, yes.
    Mr. Bilirakis. By them. Mr. Martin, you've been around a 
long time so you know the process here in terms of getting 
legislation through the system, and if we are successful in 
terms of the legislation to really place the Office in an 
independent status, it could be some time before it goes 
through the entire process, etcetera.
    In the meantime, you have resigned. I guess I would ask you 
the question, are you willing to come back to finish your work?
    Mr. Martin. Yes, I am.
    Mr. Bilirakis. Why should EPA allow you to return after the 
Judge dismissed your suit?
    Mr. Martin. Because--well, I can defer to my legal counsel 
for the----
    Mr. Bilirakis. I don't want you to defer to him.
    Mr. Martin. I'm not going to give you legal reasons. I'm 
going to give you the real reason and that is so that the 
people who need this kind of help will have the benefit of 
receiving it. They're not getting it now, in my opinion.
    Mr. Bilirakis. Bob, you don't feel that being within the 
Office of the IG is true independence?
    Mr. Martin. No, I do not.
    Mr. Bilirakis. But do you feel, taking into consideration 
that you have resigned, No. 1; No. 2, that it would take a 
while before the legislation were to get through the process, 
if ever; and No. 3 because of your concern for the public in 
Denver and in Tarpon Springs and other locations----
    Mr. Martin. Uh-huh.
    Mr. Bilirakis. Do you feel that you could, if you had the 
opportunity, do the job, complete those jobs within the 
confines of the OIG? If that is going to be changed, it's going 
to take legislation, and that will take time. Taking into 
consideration the concerns of the public and your relationship 
with them, as well as the trust and confidence, could you do 
that within the confines of the OIG?
    Mr. Martin. No.
    Mr. Bilirakis. No. You could not?
    Mr. Martin. No.
    Mr. Bilirakis. So you would not be willing to even try?
    Mr. Martin. I'd be willing to within the context of a 
negotiated agreement come back within the original purview of 
my position description which allowed for independence and 
allowed me to do the things that Ombudsman do.
    I cannot do those things within the Office of Inspector 
General. It just doesn't work. If I could have, I would have 
stayed.
    Mr. Bilirakis. My time has long expired. Mr. Pallone.
    Mr. Pallone. Thank you, Mr. Chairman. Mr. Martin, I have to 
say that I was somewhat taken aback by the first Panel because 
it was pretty clear to me, based on the questions that my 
colleagues asked, that the EPA, Mr. Fabricant and Mr. Bialek, 
as well, were basically saying that the independence that the 
GAO felt was necessary for the Ombudsman was not something that 
they were willing to give. In other words, that in fact, the IG 
was going to decide the budget, decide who was hired, and 
decide what cases were going to be considered, and so that the 
very criticism, if you will, that the GAO was giving out, was 
not something that the EPA cared about. They were going to 
proceed to do the opposite, essentially. So under those 
circumstances, I don't--it's a little difficult to be--to ask 
where we go from here because they have no intention of 
following through on what the GAO wants.
    So I guess I had a couple of questions relating to what the 
chairman said here, in other words, is there any authority 
under existing statute that requires independence? In other 
words, you said that you job description was changed.
    Mr. Martin. Eliminated.
    Mr. Pallone. Eliminated.
    Mr. Martin. Right.
    Mr. Pallone. Is there recourse here other than legislation? 
Could one make an argument that pursuant to the original 
legislation or some intent of Congress that they couldn't do 
what the EPA has done?
    Mr. Martin. I believe one could, yes.
    Mr. Pallone. I mean I ask that because you know it's always 
difficult to get legislation. Mr. Bilirakis is talking about 
legislation and obviously, I support that, but I don't know 
whether we're going to get it past here, so tell us what you 
think we could do under the existing law, to try to correct the 
situation?
    Mr. Martin. Well, I think the Federal Office of Special 
Counsel has provided an opportunity to achieve mediated or 
negotiated settlement of this entire matter. I indicated early 
on when asked by the Office of Special Counsel if I would be 
willing to mediate, absolutely yes, so that I could return 
integrity, to finish the work that needs to be done and go.
    Mr. Pallone. So there's a possibility based on what's 
happening with the Office of Special Counsel that they could 
mandate that you be reinstated in the old position or in the 
old way or with a certain amount of independence.
    Mr. Martin. The answer is yes.
    Mr. Pallone. What could we do to effectuate that here as 
Members of Congress or this committee? Is there anything we can 
do to help?
    Mr. Martin. I suppose to say that would be the sensible 
thing to achieve just that.
    Mr. Pallone. I didn't hear what you said.
    Mr. Martin. I suppose to do the sensible thing and just say 
yeah, let's do that. Let's work this out and----
    Mr. Pallone. So maybe we could do--I'm not suggesting that 
that's what we're going to do, Mr. Chairman, we can talk 
further, but we might be able to send a letter or to indicate 
the sense of this committee in some respect, that that's what 
we would like to have done on a bipartisan basis or through 
letter or some communication?
    Mr. Martin. Yes.
    Mr. Pallone. I mean I would just say Mr. Chairman, that I'd 
like to see us do something like that only because I know we're 
running out of time here with 3 or 4 months and I don't know if 
we can actually pass legislation.
    In terms of these cases that are open, I didn't really get 
any indication from Mr. Fabricant or Mr. Bialek that they were 
actually going to do anything with these open cases. What are 
they doing at this point here to your knowledge? They say 
they're going through the files, but they didn't say that as a 
result of that they were going to help out with the local 
situations or do anything to move the cases forward that you 
working on.
    Mr. Martin. That may be correct. I have no direct knowledge 
since I've not spoken to EPA.
    Mr. Pallone. But I mean you're strongly of the opinion that 
unless you come back, none of those--there isn't going to be 
any follow up.
    See, the other thing, Mr. Chairman, that is so obvious to 
me and I don't even know if it's a question, maybe it's a 
comment, but I'll try to make it into a question, is there's a 
clear link, it seems to me between the purpose of the citizen 
groups like Ms. Malinowski's, you know, with the TAG grants. I 
mean we established TAG grants and citizens' groups because we 
knew that there was a problem in the sense that if the EPA 
didn't have local citizen groups for these sites and there 
weren't TAG grants to fund them, that they wouldn't be the 
local input and it seems to me that the link between what you 
do and what the Ombudsman does to sort of put some kind of 
watch dog status, if you will, on the bureaucracy of the EPA, 
is linked and I worry that if you don't have the Ombudsman to 
be sort of the national person that the citizen groups can go 
to with their TAG grants, that the TAG grant program and the 
purpose of the citizens' groups loses its meaning or ability to 
function along what Congress intended.
    I know my time is up, but maybe Ms. Malinowski could just 
respond to that.
    Ms. Malinowski. Yes, I think that the TAG program is a 
wonderful program because originally we were faced with 12 
volumes of material and a lot of it was technical and it was 
hard for us to know what to do with that and it's important to 
have the scientific input.
    However, I will say that once we had the scientific input 
and made decisions based on that, we were ignored and we were 
patronized and the TAG grant was not enough really for us to 
participate. It should have been, but it wasn't. And we felt 
like we were listened to much more readily once Mr. Martin and 
Mr. Kaufman came to Tarpon Springs.
    Mr. Bilirakis. Would the gentleman yield to me even though 
he doesn't have any time?
    Mr. Pallone. Yes, sure.
    Mr. Bilirakis. Ms. Malinowski, let me ask you, you see the 
situation here. Mr. Martin has resigned. We all have had a 
fantastic level of confidence and trust in him in Tarpon 
Springs, and I assume the same sort of situation in Denver, and 
some of these other sites. But he has resigned.
    We don't know what the future of this legislation is going 
to be. I mean we can't wave a magic wand and Mr. Pallone is 
right, time is wasting here and if it doesn't get done this 
year, you start all over again next year. Mr. Bialek asked that 
we not prejudge the OIG and that sort of thing. And I guess, in 
a way, we already have in terms of its relationship with the 
Ombudsman function. But we've asked Mr. Martin if he would 
return, if he could, to EPA under a mediation type of a 
process. At this point in time, however, because the 
Administrator transferred the function to the OIG, the only 
place he could go back to would be the OIG. I mean let's be 
logical here. So do you feel with the proper oversight on our 
part and the OIG being aware of what has taken place in the 
past--that he could complete this job and complete this work 
within the confines of the OIG?
    It's not the independence that we all want, but in the 
interest of the public in getting these sites cleaned up. Do 
you have an opinion? If you don't have one, don't feel like----
    Ms. Malinowski. I don't have an opinion.
    Mr. Bilirakis. I know you've had a personal experience.
    Ms. Malinowski. And I'm trying to put myself away from the 
personal experience, except that's why I'm here because it is 
my personal experience. It has been our experience that 
throughout this ordeal, and I've been involved for 7 years, 
other people even longer. EPA has talked at us, not to us. And 
I've listened to the two gentlemen here representing the 
Inspector General Office and EPA, again, and I have to tell you 
that they sound very much like the people that talked to us 
before Mr. Martin came. And I want Tarpon Springs cleaned up. I 
want that site cleaned up.
    Mr. Bilirakis. Properly.
    Ms. Malinowski. Properly. I want it cleaned up properly. We 
all do. However, I don't want to have to spend more time 
dealing with an agency that has intention of really responding 
to us. I've done that for 7 years and you know, I don't have 
the experience with these agencies myself. I have to say that 
if Mr. Martin believes that he would be straight jacketed and 
would not be able to help us the way he did before, I have to 
accept that opinion.
    Mr. Bilirakis. Yes, but the alternative to that is a big 
gap in time. Region 4 possibly may perk up and do the job that 
we would hope and all that, but the oversight of the Ombudsman, 
I guess, we don't have the confidence--all right.
    I'm going to finish because my time is up----
    Ms. DeGette. Mr. Chairman, I'd ask unanimous consent that 
Mr. Pallone be granted an additional minute to yield to me.
    Mr. Bilirakis. Without objection.
    Mr. Pallone. Thank you. I just wanted to say, Mr. Chairman, 
I don't have any additional questions, I just wanted to ask 
that we spend a little time after the hearing is concluded to 
talk about possibly sending a letter or some statement by the 
committee.
    Mr. Bilirakis. Well, there have been a number of letters. 
I've sent an individual letter. There is a group letter that I 
know was circulating around for signatures that apparently 
didn't get into your office.
    Well, all right----
    Ms. Malinowski. Could I say one more thing? Would it be 
possible?
    Mr. Bilirakis. It's possible. You came a long way at your 
own expense.
    Ms. Malinowski. Thank you. I have to say that during the 
hearings there were a couple of public hearings that were held, 
very lengthy public hearings and it wasn't until these public 
hearings where everyone came together, the Ombudsman, 
Congressman Bilirakis, the State, the county, the city, all of 
us were and it was because of these hearings where everyone 
communicated that we made progress. It's my understanding that 
that is not the way it's going to be under the Inspector 
General Office, but that's what helped us. That's how we got 
past* the impasse was when everyone came together in public and 
talked about this.
    Mr. Bilirakis. Thank you, ma'am.
    Mr. Pallone. Mr. Chairman, just on this point, if I could 
just ask----
    Mr. Bilirakis. Well, now wait a while. Let's get regular 
order here. Diana, do you have some time to be----
    Ms. DeGette. The comment I wanted to make, Mr. Chairman, 
everybody's talking about it takes a long time to get 
legislation and we don't know if this can happen. Truthfully, 
legislation can happen in 1 day. On the floor later today, 
we're going to be voting on a corporate responsibility bill 
that was just introduced today or yesterday. So I think on a 
bipartisan basis, this is a critical problem. We should urge 
our leadership to move an Ombudsman bill to the floor quickly 
on the suspension calendar and I think we could have it happen. 
Thank you, and I yield back.
    Mr. Bilirakis. I wish it was always that easy. Mr. Gillmor 
to inquire.
    Mr. Gillmor. Thank you, Mr. Chairman. Mr. Martin, in the 
GAO Report, they stated that from 1997 that the Ombudsman 
Office had resolved only two cases and that 19 new cases were 
open in that time which were not resolved.
    I guess my question is is that accurate? It does not appear 
to be a good use of government resources and why was that, if 
it is accurate?
    Mr. Martin. I think perhaps the proper characterization 
would be closed as opposed to resolved. There were many cases 
pending. I tried to help as many communities as I could. As I 
did so, I engaged in a lot of what's been termed mediation or 
alternative dispute resolution, some of the results of which 
Ms. Malinowski alluded to just a moment ago where people are 
brought together as opposed to straight out audit function such 
as the Office of Inspector General performs. So the reason 
there were many cases pending is that those efforts were on-
going in very many places and also that I was essentially just 
one person.
    Mr. Gillmor. One of the things, an issue identified by GAO 
was the need for additional resources which you referred to. In 
fiscal year 2001, the Ombudsman function was granted an 
additional $900,000 for salary, contracts, grants, other 
support costs which is about a twofold increase.
    It's my understanding and you can tell me, I guess this is 
a two-part question. It's my understanding that this money came 
from other functions in OSWER to go to the Ombudsman function 
in order to increase its independence and its funds to pursue 
its work. And second, how did you use the money, the additional 
funds in the function?
    Mr. Martin. Well, you'd have to inquire of OSWER, precisely 
where the money was allocated from to the Ombudsman function. 
As I testified earlier, the funding was not under my control 
and it's difficult to do the job without that being the case.
    I do not believe that resources should come at the expense 
of independence.
    Mr. Gillmor. You did get the additional money, right?
    An additional $900,000? I guess, what I'm asking is did you 
get the $900,000 that GAO said and what did you use it for?
    Mr. Martin. I did not because I never had a budget.
    Mr. Gillmor. Okay.
    Mr. Martin. So without actually having an account that I 
control, I don't have it.
    Mr. Gillmor. Were additional people hired out of that?
    Mr. Martin. No.
    Mr. Gillmor. $900,000, where did it go, do you know?
    Mr. Martin. You'll have to ask OSWER where that funding 
lies.
    Mr. Gillmor. Okay. Very good. The answer is you never 
really got your hands on it.
    Mr. Martin. I can tell you that a portion of the allocation 
was provided for the expense of my Chief Investigator who was 
summarily removed. Therefore, as an example of money provided 
that could not be spent.
    Mr. Gillmor. Thank you.
    Mr. Martin. You're welcome, sir.
    Mr. Norwood. Would the gentleman yield?
    Mr. Gillmor. If I have a little time left, I'd be happy to 
yield to the gentleman from Georgia.
    Mr. Norwood. Let me follow up on that budget question. Mr. 
Chairman, is there anybody here from the EPA?
    Did anybody remain in the room from EPA? Could you raise 
your hand? How did I know? Okay, the budget question real 
quickly. They kept alluding to the fact that your budget was 
doubled, increased, whatever. You couldn't get airline tickets 
to go to Florida.
    Mr. Martin. That's correct.
    Mr. Norwood. Now what good is it to have doubled your 
budget and come here and imply to Congress that what's wrong? 
We doubled their budget when in effect you were not getting the 
funds in your budget. So they didn't double your budget. They 
just did a few number maturations. Have I got it?
    Mr. Martin. Yes.
    Mr. Norwood. Mr. Chairman, they didn't get any more money. 
They sat right here at this table and would make us think that 
they had doubled the budget for the Ombudsman when in fact 
there wasn't any.
    I don't know if you call that lying or what do you call 
that?
    I yield back.
    Mr. Gillmor. I yield back all 4 seconds I have left.
    Mr. Bilirakis. Mr. Norwood to inquire.
    Mr. Norwood. I'm so happy. Thank you, Mr. Chairman.
    Mr. Bilirakis. On your own time.
    Mr. Norwood. Ms. Malinowski, I've been here 7\1/2\ years. 
There is no agency in the United States that is more 
patronizing or arrogant than the EPA. I knew who was in here 
from the EPA just watching the smirks on their face as this 
testimony was going on.
    Ms. Malinowski. I recognized them also.
    Mr. Norwood. Well, I'm looking right at them. They're 
behind you and they're smirking and laughing at this hearing as 
if oh, those dumb Congressmen, they don't know what they're 
doing and these poor people up here are just complaining about 
something.
    All right, now we've established the fact that although 
they said the budget was increased tremendously, it was not.
    Now Mr. Martin, help me. My impression of this is that when 
EPA comes out with a policy, they typically back that up with 
EPA science and at the end of the day there is nothing more 
important to the EPA than not being proved wrong. It's a 
bureaucratic thing. They--yeah, they want the sites cleaned up, 
but that's not most important. First and foremost, what's 
important is that we didn't make a mistake.
    Now I've seen that happen in my District, as you well know. 
EPA comes out with a particular finding that tells the people 
of the country how, for example, you might use waste water 
sludge. That turns out to be a very bad thing for a lot of 
people. You ask the EPA about it and they say what do you mean 
it's bad? Our people said it was okay. Then we ask somebody 
independent of this Agency to look into this, what actually is 
happening here? These cows aren't dying because it's hot. 
What's going on here? And we find out that perhaps they were 
wrong, not that they will ever admit it to anybody under any 
circumstances. They would rather the cows die. They'd rather 
destroy Americans than admit that they are wrong.
    Now is that not why you had to resign under the pressures 
of an Agency that could not tolerate anybody saying that they 
may have made a mistake and this is just one mistake, ladies 
and gentlemen, that has happened in my District in 7 years. 
There are other people up here having the same problems, but 
I'm just talking about one of many.
    Now isn't that basically what's going on and isn't that the 
reason we need to get you as independent as possible so 
somebody can tell the truth because we know for a fact that EPA 
bureaucrats will not.
    Mr. Martin. Yes sir.
    Mr. Norwood. I yield back, Mr. Chairman. That's what this 
hearing is about.
    Mr. Bilirakis. The Chair recognizes the gentleman from 
Illinois.
    Mr. Shimkus. Thank you, Mr. Chairman. I've got three brief 
points. First of all, Mr. Martin, can you identify the 
individual sitting to your right and the individual sitting 
behind you just so I know who they are? Are they counsel to 
you?
    Mr. Martin. Sure, counsel is seated to my right, Mr. 
Hartnett. The individual sitting behind me is a former Chief 
Investigator, Mr. Kaufman with the Environmental Protection 
Agency.
    Mr. Shimkus. Thank you. Mr. Martin, you've been here the 
whole time. You've heard my various statements, both on 
questions and opening statements. Address this external/
internal debate that I'm talking about as far as the role of 
the Ombudsman versus the role of the Inspector General. And 
does that make some sense? Or in your previous office, were you 
also conducting internal issues as an IG would do?
    Mr. Martin. Okay, properly so, the charge of the Inspector 
General is to examine matters relating to waste, fraud and 
abuse. The charge of the Ombudsman, however, I feel is quite 
different in nature and virtually goes to truth, justice and 
democracy, openness, bringing people together, setting 
differences aside, moving forward, informally initially and 
then once consensus is reached, doing it formally so that an 
agreement may be had to fix problems. I think the two charges 
are vastly different. I did not engage in reviewing any matter 
internally within the Environmental Protection Agency during my 
tenure. However, when any matter relating to a wrong doing or 
criminality came to my attention, I did provide appropriate 
referrals to either the Inspector General or the Criminal 
Investigation Division of the EPA or, in one or two cases, a 
U.S. Attorney.
    Mr. Shimkus. So the analysis of Ombudsman externally 
fighting for the citizens with respect to the Federal 
bureaucracy versus the interactions is really what you would 
envision an Ombudsman role to be?
    Mr. Martin. Yes.
    Mr. Shimkus. And then finally, I'm not going to belabor it, 
I think we'll get a chance to talk about the dismissal and all 
that other aspect. If the accounts you portray are accurate, I 
apologize, that's not the way you treat professionals in any 
type of professional office, but in my background I did have to 
fire a Federal employee once as a Reserve Officer and I know 
that he hung on for a long time and finally we personally went 
before a Federal Judge for the final departure ceremony, I 
guess, or lack of a better word.
    You did not exhaust all of your remedies in-house and my 
question would be why not?
    Mr. Martin. That may be a better question for counsel to 
respond to.
    Mr. Bilirakis. I don't know----
    Mr. Shimkus. Mr. Chairman, if that's an improper question, 
I'll just pull it and maybe it's not timely since there's 
pending Court action.
    Mr. Bilirakis. I think it's probably not.
    Mr. Martin. I'll just try to make a long story very short. 
I did file grievances within the EPA relating to the actions 
taken against the Ombudsman function. They were never responded 
to.
    Mr. Shimkus. My concern would be it's better to fight when 
you're there under the protections than to leave and try to 
fight from outside and we've had a lot of great discussions 
over the years. It's not a partisan debate. Under the current 
administration we were fighting for your independence, as you 
know and we will continue to do that. I just--it probably would 
have been easier inside, rather than outside.
    Mr. Martin. I understand that and the principal reason for 
the resignation, under duress, was that to go over to the IG 
would be in my view to cooperate and lie, that there could be 
an Ombudsman there. And I wouldn't do that. I wouldn't betray 
myself or the communities I worked for.
    Mr. Shimkus. And I appreciate that, Mr. Chairman, thank you 
for the time and I yield back the balance.
    Mr. Bilirakis. I thank the gentleman.
    Ms. DeGette?
    Ms. DeGette. Thank you, Mr. Chairman. Just a couple of 
questions. Mr. Martin, you testified that when you were the 
Ombudsman, basically, it was you and then you had Mr. Kaufman 
helping you out. Is that right?
    Mr. Martin. He provided assistance for about a 2-year 
period.
    Ms. DeGette. And a lot of the sites that you investigated 
involved complex scientific issues, didn't they?
    Mr. Martin. Yes, they did.
    Ms. DeGette. Did you ever have the budget to hire 
scientific experts to prepare reports or analyses for you?
    Mr. Martin. Not until the last 2 years.
    Ms. DeGette. What sites did you--how many sites were you 
able to get that expert assistance with?
    Mr. Martin. Several. For example, the Shaddeck site being 
one example in Denver. I asked our Environmental Response Team 
in New Jersey to provide assistance and review the technical 
merits of the record of decision.
    Ms. DeGette. So that was an internal group within the EPA 
that helped you do that?
    Mr. Martin. Yes, but autonomous from the EPA Regions.
    Ms. DeGette. I've got you. Did you ever hire outside 
environmental experts?
    Mr. Martin. I believe on one or two occasion, I did.
    Ms. DeGette. And how many cases did you investigate during 
your tenure as the EPA Ombudsman?
    Mr. Martin. I think fully 36 cases were opened during my 
9\1/2\ year tenure as Ombudsman.
    Ms. DeGette. Okay, so I want to ask you a couple of 
questions. One is if you had been given the budget for hiring 
outside scientific experts on some of these sites, would that 
have assisted you in your duties?
    Mr. Martin. Yes.
    Ms. DeGette. And did you ever ask for outside assistance?
    Mr. Martin. yes.
    Ms. DeGette. And what was the response of the Agency?
    Mr. Martin. The budget solves the problem and the real 
problem was that I had to ask.
    Ms. DeGette. Why was that the real problem?
    Mr. Martin. Well, because an Ombudsman should not have to, 
if he's truly independent, or she's truly independent, ask the 
bureaucracy for the resources needed to look into a matter.
    Ms. DeGette. Did you feel that you from time to time had to 
resort to sort of a bully pulpit tactic to get these issues 
known because of lack of resources given to you by the Agency?
    Mr. Martin. Well, I believe that it was necessary in the 
circumstances, we just discussed, to hold public hearings at 
which everyone who had a concern could come forward with their 
own technical experts as the case may be, to aid in the truth 
finding process.
    Ms. DeGette. I think we'd all agree that was not always 
maybe the best way to get the information that we needed, but 
it was the only way you had, right?
    Mr. Kaufman, who is sitting behind you, certainly agrees.
    Let me--I mean you've had ample time to reflect on this 
issue. Who do you think that--I mean aside from this 
legislation we've got that we're all working on, hopefully, 
with great rapidity, who do you think that the EPA Ombudsman 
should report to?
    Mr. Martin. I think ideally the Ombudsman should report to 
Congress, the people's body.
    Ms. DeGette. Directly to Congress?
    Mr. Martin. Yes, with the ability to make recommendations, 
collaterally, to the executive branch.
    Ms. DeGette. Who do you think should fund the EPA 
Ombudsman?
    Mr. Martin. Congress.
    Ms. DeGette. So you think the appropriation for the EPA 
Ombudsman should come directly by a Congressional appropriation 
and not through the Agency?
    Mr. Martin. Yes, I do. In that deliberation, I've concluded 
that it would be good to have the Ombudsman function exist much 
like the former Office of Technological or Technology 
Assessment, the OTA, which existed to provide more autonomous 
or independent information and recommendations to the Congress.
    Ms. DeGette. So what you're saying is your view is that 
there is some precedent for an independent type of office like 
this that would report and be funded by Congress?
    Mr. Martin. Yes, very much so.
    Ms. DeGette. I have no further questions and yield back the 
balance of my time, Mr. Chairman.
    Mr. Bilirakis. I thank the gentlelady. If any of you are 
wondering why it looked like we skipped over her questioning, 
it is because she is not a member of either one of these two 
subcommittees and there are rules in that regard. She 
understands, but she's been of invaluable assistance, 
obviously, and it's great working with her, particularly on 
this issue.
    Bob, and I'm not asking you to reveal to us any of your 
negotiating strategies or anything like that, but under what 
circumstances would you be willing to come back? You said 
something about returning and then leaving which means you're 
thinking temporarily, right? You'd be willing to come back to 
clean up the sites that have been assigned to you initially?
    Mr. Martin. Finish the pending national Ombudsman----
    Mr. Bilirakis. Finish pending. But under what 
circumstances? You don't want to do it under the OIG. You're 
certainly not going to want to do it under the prior office. 
It's going to be under EPA because you're hoping to negotiate 
with EPA. But you've already testified as to the question 
regarding whether you think it ought to be even outside of the 
scope of EPA?
    Mr. Martin. I think ultimately Congress----
    Mr. Bilirakis. Ultimately, right.
    Mr. Martin. Ultimately, Congress needs to decide the 
appropriate placement of the Ombudsman function.
    Mr. Bilirakis. Yes.
    Mr. Martin. That's bigger than me. What is within my power 
is to come back and finish that which needs to be done. And----
    Mr. Bilirakis. And to report to whom? And report directly 
to whom? To the Administrator?
    Mr. Martin. That could be done or perhaps the Assistant 
Administrator for the Office of Solid Waste and Emergency 
Response who has control and authority over these matters.
    It could be done through a reinstatement of a position 
description that was eliminated, or simply through a 
contractual arrangement.
    Mr. Bilirakis. Yes. Independent contract----
    Mr. Martin. Without revealing all the details of a 
potential negotiation.
    Mr. Bilirakis. Okay, thank you. Heather, anything else you 
want to finish up with here? We're about to finish.
    Ms. Malinowski. I guess, all I can say is that in our 
community, Mr. Martin and Mr. Kaufman are looked on as heroes 
as is Congressman Bilirakis for bringing them there and 
supporting the process and we just really hope that you can 
make something out of this mess because we really need the help 
and so do all the other communities that are depending at this 
point on you. Thank you.
    Mr. Bilirakis. Well, thank you so very much. If there are 
no further members seeking time to ask questions, I want to 
thank this Panel for their time, their patience and their 
testimony. Obviously, we do want to request your availability 
to respond to any written questions that we and staff may 
provide to you.
    I would announce that Panel 2 was supposed to be three 
witnesses, but shrunk to just two. Mr. Bob Spurling of Denver, 
Colorado was supposed to be a witness in this Panel, but he had 
pressing business concerns that forced him to cancel his trip 
yesterday. He has agreed to submit written testimony to our 
committee and any member is welcome to submit written questions 
to him for inclusion in the record.
    All members, of course, have 5 legislative days to submit 
opening statements for the record. Without objection, so 
ordered. This hearing is now terminated. Our timing was 
perfect. Thank you very much.
    [Whereupon, at 12:15 p.m., the proceedings went off the 
record.]
    [Additional material submitted for the record follows:]
                Prepared Statement of Robert L. Sperling
    First, thank you for accepting my message in lieu of my being 
present due to a business conflict. I am honored by your invitation to 
testify and hope in few words to relate my experience with the National 
EPA Ombudsman and the relationship of that office to this community.
    I am a long term resident of Denver, an active member of the 
business community and a citizen concerned about the environment. I 
wish to talk principally about the need for an independent National 
Office of the EPA Ombudsman.
    I first encountered the office when I was involved with the cleanup 
of the Shattuck site which was causing quite a stir in Denver. Shattuck 
was and is an EPA Super fund Site in Denver that was contaminated with 
radioactive radium in the early 20's and with uranium, thorium and 
other heavy metals more recently. The contamination was so high it was 
placed on the National Priorities List of only 3% of the nations most 
contaminated sites.
    What made Shattuck unique was that it is the only site along the 
historic South Platt River publicly scheduled for cleanup. Then behind 
closed doors, the decision that while the material from other sites was 
removed the Shattuck waste would be buried on site. This was carried 
out in spite of opposition by the community. Also, local regulations 
and statutes were ignored along with objections by the Rocky Mountain 
Low Level Waste Board. It was during this period that the National 
Ombudsman's office was notified. That office informed the community 
that a letter from an elected official was necessary for a review 
process to be considered.
    Letters were sent by several members of our Congressional 
delegation and, I think, from Governor Owens. Within a matter of weeks 
Mr. Martin and Mr. Kaufman came to Denver and toured the Shattuck site. 
It isn't hard to find; located in Central Denver with a clear view of 
the downtown skyline. Most disturbing is that 50,000 cubic yards of 
radioactive soil sits astride two of Denver's fresh water aquifers, the 
Denver and South Platt.
    Although the community could not challenge the remediation process, 
once it had begun, a number of questions were raised by the Ombudsman's 
office. These with other events raised questions in the minds of 
Representative Diana Degette and Senator Wayne Allard. It was the 
inquiry of Martin and Kaufman with that of our elected officials and 
the efforts of the Denver Post investigative environmental reporter, 
Mark Eddy, that prompted--or I should say forced--the EPA to revisit, 
review, reconsider, and finally REVERSE their decision and to remove 
the waste.
    It was Messers Martin and Kaufman who were the first EPA officials 
to listen to the community, to inquire into their concerns, and to 
respond in a manner we consider appropriate given all the facts 
unfolding and the nature of the agency and its mission.
    Our community strongly supports the role and mission of the EPA and 
has repeatedly made this clear to their personnel at all levels up to 
the Regional Administrator. Their role should be unencumbered by 
political bias or corporate influence to address environmental risks 
and act appropriately.
    Some may denigrate the Ombudsman's activities in Denver, but I 
believe that without the efforts of the Ombudsman's office and the Blue 
Ribbon Panel put together by Region 8's Administrator to oversee a 
second 5 year review our successful cleanup would not have come to 
pass. Their decision was that there was insufficient data in the short 
run to declare the site safe or unsafe, and in the long run to have 
confidence the the cap on the monolith would not suffer catastrophic 
failure in the next 3-15 years. This is not reassuring for a CIRCLA 
site with a 1,000 year life.
    No organization is free of faults, especially one in a very 
powerful position. We are seeing it around us every day. Certainly most 
of those at our major accounting firms do an admirable job but there is 
always the possibility that things will go astray. I am not sure the 
EPA realizes that the role of the Ombudsman is not that of an advocate 
but rather to determine whether the law is being followed. Only those 
who break it have reason to fear.
    We need the office of Ombudsman to be respected since he is on a 
par with the judicial system, be independent of all influence and be 
independently funded so his budget cannot be used to influence his 
decisions. Access to records was denied the Ombudsman during his Denver 
investigation and to Senator Wayne Allard. The Region classified 
records as 'privileged' to keep information from the public.
    Our great democratic country and the agencies that protect it and 
enforce its laws must not abuse the responsibilities given them.
    The American Bar Association has established guidelines that appear 
to be well suited to the Office of the Ombudsman. Those guidelines 
would provide for the independence and integrity necessary for a 
constructive Ombudsman's office.
    I ask the committee to rise above partisan politics as our 
Congressional members did when Representative Degette and Senator 
Allard worked jointly to see the right course of action be taken. 
Reestablish the independent office of the EPA Ombudsman. Work out 
guidelines for the EPA and the Ombudsman's Office so the community may 
be served and the EPA may truly achieve its mission in a way that is 
``Protective of Human Health and the Environment''.
    Thank you again for this opportunity.
    I will be happy to respond to any direct questions the subcommittee 
may have.

                                
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