[Senate Hearing 107-1003]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 107-1003

     OFFICE OF THE OMBUDSMAN AT THE ENVIRONMENTAL PROTECTION AGENCY

=======================================================================

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                                   ON

                                 S. 606

 A BILL TO PROVIDE ADDITIONAL AUTHORITY TO THE OFFICE OF OMBUDSMAN OF 
                  THE ENVIRONMENTAL PROTECTION AGENCY

                               __________

                             JUNE 25, 2002

                               __________


  Printed for the use of the Committee on Environment and Public Works



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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                      one hundred seventh congress
                             second session

                  JAMES M. JEFFORDS, Vermont, Chairman
MAX BAUCUS, Montana                  BOB SMITH, New Hampshire
HARRY REID, Nevada                   JOHN W. WARNER, Virginia
BOB GRAHAM, Florida                  JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     CHRISTOPHER S. BOND, Missouri
BARBARA BOXER, California            GEORGE V. VOINOVICH, Ohio
RON WYDEN, Oregon                    MICHAEL D. CRAPO, Idaho
THOMAS R. CARPER, Delaware           LINCOLN CHAFEE, Rhode Island
HILLARY RODHAM CLINTON, New York     ARLEN SPECTER, Pennsylvania
JON S. CORZINE, New Jersey           PETE V. DOMENICI, New Mexico

                 Ken Connolly, Majority Staff Director
                 Dave Conover, Minority Staff Director


                            C O N T E N T S

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                                                                   Page

                             JUNE 25, 2002
                           OPENING STATEMENTS

Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New 
  York...........................................................     2
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....    17
Jeffords, Hon. James M., U.S. Senator from the State of Vermont..     1
Specter, Hon. Arlen, U.S. Senator from the Commonwealth of 
  Pennsylvania...................................................    23

                               WITNESSES

Allard, Hon. Wayne, U.S. Senator from the State of Colorado......     4
    Prepared statement...........................................    50
Brian, Danielle, executive director, Project on Government 
  Oversight......................................................    37
    Prepared statement...........................................    72
Martin, Robert, former EPA National Ombudsman....................    24
    Prepared statement...........................................    65
Nadler, Hon. Jerrold, U.S. Representative from the State of New 
  York...........................................................     6
    Prepared statement...........................................    51
Shortz, Susan, president, Halt Environmental Lead Pollution 
  (HELP).........................................................    41
    Prepared statement...........................................    76
Tinsley, Nikki, Inspector General, U.S. Environmental Protection 
  Agency.........................................................    12
    Brief, Mary Mosley v. Christine Todd Whitman................. 55-58
    Prepared statement...........................................    53
    Responses to additional questions from:
        Senator Crapo............................................    60
        Senator Jeffords.........................................    58
Wood, David, Director, Natural Resources and Environment, U.S. 
  General Accounting Office......................................    13
    Prepared statement...........................................    60
Zanetti, Katherine, facilitator, Shoshone Natural Resources 
  Coalition......................................................    39
    Prepared statement...........................................    74

                          ADDITIONAL MATERIAL

Letters:
    Canales, Suzie, Citizens for Environmental Justice, Corpus 
      Christi, TX................................................   104
    Evans, Robert D., American Bar Association...................    78
    Huysman, Kristen, Environmental Law Society, Vermont Law 
      School.....................................................   104
    Koke, Cindy, Denver, CO......................................   101
    Malinowski, Heather, Secretary, Pi-Pa-TAG, Inc...............    93
    Matsunaga, Robin K., President, U.S. Ombudsman Association...    95
    Oja, Carrie, chairman, Community Leaders for EPA 
      Accountability Now........................................108-111
Memorandums:
    Community Leaders for EPA Accountability Now (CLEAN), Coeur 
      d'Alene, ID................................................   108
    Devine, Tom, Government Accountability Project...............   106
Reports:
    A Partial Approach to Clean-up: EPA Mishandles Superfund 
      Investigations, June 25, 2002.............................111-121
    American Bar Association, Section of Administrative Law and 
      Regulatory Practice, Section of Dispute Resolution, Section 
      of Business Law, Section of State and Local Government Law, 
      Government and Public Sector Lawyers Division, Senior 
      Lawyers Division, Commission on the Legal Problems of the 
      Elderly, National Conference of Administrative Law Judges, 
      Standing Committee on Environmental Law.................... 82-92
Statements:
    Hardy, Rogers and Antonia M., Harrison, ID...................    97
    Hodge, Lucinda, director, Alberton Community Coalition for 
      Environmental Health, Missoula, MT.........................   100
    Miller, Barbara, Siler Valley People's Action Coalition, 
      Kellog, ID.................................................    98
    Scholl, Ron, Missoula, MT....................................    99
    Smedley, William A., executive director, GreenWatch, Inc.; 
      board member, Pennsylvania Environment Network; chairman 
      Legal Committee, AIR.......................................   102
Text of Bill, S. 606, A bill to provide additional authority to 
  the Office of Ombudsman of the Environmental Protection Agency122-129

 
     OFFICE OF THE OMBUDSMAN AT THE ENVIRONMENTAL PROTECTION AGENCY

                              ----------                              


                         TUESDAY, JUNE 25, 2002

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:38 a.m. in room 
406, Senate Dirksen Building, Hon. James Jeffords (chairman of 
the committee) presiding.
    Present: Senators Jeffords, Carper, Clinton, Crapo and 
Specter.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Senator Jeffords. The hearing will come to order.
    The purpose of today's hearing is to examine the 
functioning of the EPA's Office of the Ombudsman. While this 
may be a little-known office within the EPA, historically it 
has played an important role looking into the Agency's handling 
of hazardous waste sites under the Superfund program. It is 
clear to me that the Agency needs an independent and credible 
and impartial ombudsman that will respond to the needs of 
communities coping with complicated and somewhat life-
threatening environmental problems.
    I, for one, do not want another GAO study in 9 months that 
again finds that the ombudsman does not have sufficient 
independence. Last April, the EPA transferred the ombudsman to 
the Office of Inspector General. In reviewing the testimony of 
today's witnesses, it is clear that this action has generated 
considerable concern. I hope that the Inspector General will 
detail the operating plans for the ombudsman office and will 
let the committee know when the office will be publicly posted 
and fully staffed.
    Most of you know the authorizing statute governing the 
activities of the ombudsman expired some time ago. Senator 
Crapo has introduced a bill that Senators Specter and Allard 
and others have, that would require the ombudsman to report 
directly to the Administrator of the EPA. I hope all the 
witnesses will give us their comments on this piece of 
legislation.
    As a reminder, I would request that the witnesses keep 
their oral remarks to 5 minutes so that we can have time for 
questions and answers from each panel. Each of the witness' 
written testimony will be placed in the record and the record 
will be left open for following questions and additional 
testimony.
    [The prepared statement of Senator Jeffords follows:]

      Statement of Hon. James M. Jeffords, U.S. Senator from the 
                            State of Vermont

    Good morning. The purpose of today's hearing is to examine the 
functioning of the EPA's Office of the Ombudsman. While this may be a 
little known office within the EPA, historically it has played an 
important role looking into the Agency's handling of hazardous waste 
sites under the Suerfund program.
    It is clear to me that the Agency needs an independent, credible, 
and impartial Ombudsman that will respond to the needs of communities 
coping with complicated and sometimes life-threatening environmental 
problems. I for one do not want another GAO study in 9 months that 
again finds that the Ombudsman does not have sufficient independence.
    Last April, the EPA transferred the Ombudsman to the Office of the 
Inspector General. In reviewing the testimony of today's witnesses, it 
is clear that this action has generated considerable concern. I hope 
that the Inspector General will detail the operating plans for the 
Ombudsman's office and will let the Committee know when the office will 
be publicly posted and fully staffed.
    As most of you know, the authorizing statute governing the 
activities of the Ombudsman expired some time ago. Senator Crapo has 
introduced a bill with Senators Specter and Allard and others that 
would require the Ombudsman to report directly to the Administrator of 
the EPA. I hope all of the witnesses will give us their comments on 
this piece of legislation.
    As a reminder, I would request that the witnesses keep their oral 
remarks to 5 minutes so that we have time for questions and answers 
after each panel. Each of the witness' written testimony will be placed 
in the record, and the record will be left open for followup questions 
and additional testimony.

    Senator Jeffords. Senator Clinton.

OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR 
                   FROM THE STATE OF NEW YORK

    Senator Clinton. Thank you very much, Mr. Chairman. I 
especially thank you for holding today's hearing on this very 
important topic. I am grateful that we are going to focus on it 
because it has been a subject of great concern to me and to my 
colleague, Congressman Nadler, who I am delighted is here to 
testify on behalf of the tens of thousands of residents of 
Lower Manhattan. Congressman Nadler has been a staunch and 
unrelenting advocate on behalf of our constituents at and 
around Ground Zero who experienced the unthinkable on September 
11 and who to this day continue to be faced with issues and 
concerns regarding the quality of the air they breathe and the 
health and safety of the environment that they and their 
families live in.
    In the case of the World Trade Center, like so many other 
sites around the country, people are faced with very 
complicated environmental questions. They are trying to 
understand technical and scientific issues that really only 
experts can explain to us and get to the bottom of. What we all 
want is simply to understand what is going on; to learn what we 
need to do to protect our health and to protect our 
environment.
    It should not be complicated, and I do not think it should 
be that difficult. It should be the Federal Government's job 
not only to carry out the laws, but also to help the public 
understand what is going on, and to provide us with the 
information we need to make the right decisions about the 
health and safety of our children and ourselves. It seems more 
often than not that communities are left confused, even empty-
handed, without the information and without the actions that 
they need and deserve from their government.
    Senator Lieberman and I, with the great support of Chairman 
Jeffords, went to New York to hold a hearing on air quality at 
Ground Zero back in February, to try to clear the air, so to 
speak--to get some real information that we then could act on 
and legislate about. Again, Congressman Nadler, who has been a 
leader on these issues, was there to lend his expertise and 
support.
    Now, I know that we have a number of people from New York 
City who have traveled here today. I wish we could hear from 
every single one of you on this important issue, but the record 
will receive written testimony and it will remain open until 
July 7. I know that a number of you visited some of my 
colleagues' offices and I really applaud you for doing that--to 
get the word out. We just recently had a public opinion survey 
in Manhattan, Mr. Chairman, where a majority of residents were 
more concerned about the air quality issues than they were 
about another terrorist attack.
    People just know there is--and it may not be that there are 
answers we are not being told, although we think that there 
were answers we were not told in a timely way, but that we have 
to do further research to get to the bottom of some of these 
issues. We need to have an independent voice like an ombudsman 
to be able to give us that guarantee that somebody is asking 
the hard questions inside the Agency.
    I just want to end with reading one of the many e-mails 
that I have received from my constituents in Lower Manhattan 
with regards to this question about the EPA ombudsman. This 
woman lives in a building right next to the World Trade Center. 
Here is what she wrote, ``Dear Senator, I have been diagnosed 
with new asthma and spent several months gasping for air. I 
have been unable to return to my home because it is still full 
of World Trade Center dust, although it has been cleaned by 
conventional methods many times. Dozens of my neighbors are 
also ill. The EPA ombudsman hearing here were the first time 
the truth was told about what has happened to us. Please do 
everything in your power to reinstate Robert Martin.''
    Another woman who lives just five blocks away says, ``I 
speak for many who are very worried about downtown's condition. 
The ombudsman was our hope that something would be done to 
correct all of our problems. We are so worried down here. As 
taxpaying citizens, we feel abandoned and need more advocates. 
It is a nightmare and we are overwhelmed with the amount of 
work us regular people have to do to try and overcome what we 
know is a bad situation. Please help.''
    These people need an advocate who is an expert, who is 
inside the Agency, who does have access to information that is 
often sometimes difficult even for those of us in the Senate to 
obtain in a timely manner. So I hope that we are going to 
resolve some of the disputes that have occurred around this 
important position. We are conducting this hearing to determine 
a way to ensure that the role of an independent ombudsman is 
maintained at EPA. That to me is the most important issue--not 
someone who has to toe the party line, not someone who has to 
repeat publicly what he or she is told to repeat, but someone 
who can be a thorn in the side and can take a contrary 
position. This is not new to this Administration. This has 
happened in other Administrations where the ombudsman had some 
things to say that were not always welcome to hear. We have to 
have that kind of public airing, especially when it comes to 
our air in Lower Manhattan in the wake of the terrible disaster 
of September 11.
    So I am also pleased that our colleague, Senator Allard, is 
here as well, and I look forward to the testimony.
    Senator Jeffords. Thank you very much.
    I welcome both Senator Allard and Representative Nadler. 
This is an incredibly important hearing and I deeply appreciate 
your interest and your willingness to be here.
    Senator Allard.

STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR FROM THE STATE OF 
                            COLORADO

    Senator Allard. Thank you, Mr. Chairman and Senator 
Clinton. I am pleased to be able to testify before you today, 
and I want to thank you for holding this hearing and giving me 
an opportunity to testify on Senate bill 606.
    As you know, this legislation reauthorizes the Office of 
the Ombudsman of the Environmental Protection Agency. I speak 
to you from personal experience, having worked with a 
neighborhood in Denver who came to our office. We worked with 
them to try and get the bureaucracy within the Environmental 
Protection Agency to respond to the concerns of the citizens in 
that neighborhood. Frankly, as an office, we were not able to 
get through the echelon that had established itself in the 
regional office of the Environmental Protection Agency, so we 
had to turn to the Ombudsman. The Ombudsman was the one who 
helped us break down those barriers because their purpose was 
to serve as an independent voice for citizens impacted by 
decisions happening within the Environmental Protection Agency.
    I am going to keep my remarks brief, but I do want to share 
with the committee my reasoning on and interest in this issue. 
I introduced similar legislation in the 105th Congress because 
of the ongoing battle between the citizens of a Denver 
neighborhood and the EPA concerning the Shattuck Superfund 
site. The Ombudsman's office was instrumental in bringing the 
truth of what was happening in this case to light. The 
legislation was introduced by Senator Crapo at the beginning of 
the current Congress because the issue of authorization and 
independence in the office of the EPA Ombudsman is still an 
important one.
    I would like to share with you quickly the stories 
surrounding the Shattuck site in the Overland Park neighborhood 
in southwest Denver and what the EPA did there. These events 
have had a lasting impact not only on the residents of the 
Overland Park neighborhood, but on each of us who look to the 
EPA to be the guardian of our Nation's environmental health and 
safety. In 1997, after several years of EPA stonewalling, the 
residents of Overland Park in Denver brought their concerns 
about a Superfund site in their neighborhood and their 
frustrations with EPA to my attention. I learned that the 
neighborhood had run into a wall of bureaucracy that was 
unresponsive to the very public it is charged with protecting. 
As a result of learning this information, I requested the 
Ombudsman's intervention. In early 1999, the Ombudsman's office 
began an investigation and quickly determined that the claims 
made by the residents were not only meritorious, but that EPA 
officials had engaged in an effort to keep documents hidden 
from the public, thereby placing their health in further 
danger.
    Without the Ombudsman's investigation on Shattuck, the 
residents of Overland Park would never have learned the truth. 
The Ombudsman's investigation brought integrity back into the 
process. Without the Ombudsman's work, a trusted Federal agency 
would have been able to successfully hide the truth from the 
very people it is charged to protect. The Shattuck issue is a 
decade-long example of why citizens' trust in their government 
has waned.
    This bill will preserve an important mechanism within the 
EPA that the public can trust to protect their health and 
safety. The Shattuck story was a frustrating and often 
disheartening experience for all involved. It is an example of 
what can happen when a government entity goes unchecked. For 
the residents of Denver, the Office of Ombudsman offered the 
opportunity to get to the truth and made the health and safety 
of the public the top priority. Let me make it clear that the 
main priority of my continued support of this bill is to keep 
the Office of the EPA Ombudsman open for business and capable 
of conducting that business.
    In the future, others may find themselves in a situation 
similar to the one that residents of Denver experienced. I want 
to know that we will have every assurance that the public 
safety will be protected, that its voice will be heard, that 
its questions will be answered and its concerns addressed. This 
office should not have its investigative ability restricted and 
its independence should not be compromised. The EPA's actions 
and decisions in future cases like Shattuck should not go 
unchecked and citizens in other States should have a public 
avenue to address concerns and get answers from the 
Environmental Protection Agency.
    I know that I am not alone in my concerns, and 
unfortunately that the Shattuck site is not unique. Many of my 
fellow Senators and Representatives have experienced similar 
concerns with sites in their States. That is why this 
legislation remains so very important. I appreciate the efforts 
that have been made by the current Administration in an attempt 
to solve some of the problems that the Office of the Ombudsman 
experienced. I know that Administrator Whitman shares my desire 
to see this issue to a conclusion that will be beneficial to 
all, and I appreciate her willingness to work with my office.
    Again, Mr. Chairman, thank you for holding this hearing and 
your willingness to look further into the matter.
    Senator Jeffords. Thank you for your excellent statement. 
You are right, and we appreciate the work you have put into it.
    Representative Nadler.
    Senator Allard. Mr. Chairman, I am sorry, but I have to 
move on.
    Senator Jeffords. Oh, you are going to leave us.
    Senator Allard. Very good, thank you.
    Senator Jeffords. Thank you, Wayne--very helpful.
    Now, Mr. Nadler.

STATEMENT OF HON. JERROLD NADLER, U.S. REPRESENTATIVE FROM THE 
                       STATE OF NEW YORK

    Mr. Nadler. Thank you, Mr. Chairman. I would like to thank 
you and the rest of the committee for holding this hearing 
today and for inviting me to testify regarding the EPA 
Hazardous Waste Ombudsman, in particular the role of the 
Ombudsman in investigating the response of the EPA to the 
September 11 terrorist attack in New York.
    My colleague from New York, Senator Clinton, has been an 
outspoken advocate, and knows all too well the problems 
citizens in New York have been encountering over the last 9 
months. Thank you, Senator Clinton, for arranging the field 
hearing in New York back in February, and thank you, Chairman 
Jeffords, for the committee's continued oversight of the EPA by 
examining this issue today.
    Those of us who have had to deal with the EPA have had an 
interesting experience. We experienced on the one hand an 
agency that seems to ignore the community's concerns, and on 
the other, an Ombudsman willing to listen and investigate 
complaints about agency neglect. Ultimately in the vast 
majority of the EPA Ombudsman cases, the transparent Ombudsman 
process has helped the Administrator or regional officials to 
take proper action to resolve the disputes, resulting in 
greater protection from radioactive and other hazardous waste 
threats. Both Democrats and Republicans alike have utilized the 
EPA ombudsman to help restore trust in government where it had 
previously been shaken.
    Immediately following September 11, I formed the Ground 
Zero Elected Officials Task Force, of which Senator Clinton is 
a member, to coordinate the efforts of all the government 
representatives from the area. The main goal of the Task Force 
is to assess the needs of the community in Lower Manhattan and 
to ensure that those needs are addressed by the appropriate 
government agencies. One area that clearly was not addressed 
was the presence of hazardous waste in people's homes, schools 
and businesses. In the days following the attack, the Task 
Force heard countless complaints from citizens who suffered 
from adverse health effects and lacked the necessary resources 
to test and clean their apartments and buildings properly.
    When EPA was presented with such information, the Agency 
either maintained that everything was safe initially on the 
basis of zero test data, or claimed that the city of New York 
was in charge of indoor environments and that the EPA only had 
authority only outdoor environments and had no authority for 
regulating indoor environments. This distinction between indoor 
and outdoor environments has no basis in statute.
    The Agency maintained its position even after being 
presented with independent test results conducted by long-time 
EPA contractors at the request of the Ground Zero Task Force 
which showed elevated levels of hazardous materials inside 
downtown apartments. Citizens were left to fend for themselves. 
They often ended up in court proceedings against their 
landlords and building owners, and expended vast resources on 
the cleanup downtown that was not conducted adequately or 
systematically, but rather on an ad hoc basis.
    After 4 months of this untenable situation, I asked the EPA 
National Hazardous Waste Ombudsman, Robert Martin and his Chief 
Investigator, Hugh Kaufman to investigate. Their involvement 
produced a sea-change in the relationship of my office as well 
as of local residents with EPA. My position has always been 
that EPA should use its existing authority to take any and all 
actions necessary to find out where hazardous materials went 
following the collapse of the World Trade Center and to 
remediate all contaminated spaces, and that New York should not 
be treated differently from other parts of the country where 
the EPA has engaged in response activities including 
remediating indoor spaces.
    Ombudsman Martin and Mr. Kaufman were able to tell us what 
the EPA should have done, could have done under law, and has 
done at other hazardous waste sites around the country. Most 
importantly, the ombudsman process provided a forum to 
communicate with my constituents, to listen to their complaints 
and concerns, issue requests for the production of documents 
and interrogatories, hold public hearings, bring in experts 
from around the country to help the citizens understand the 
magnitude of the issues, make recommendations for corrective 
action, and truly get to the bottom of what EPA did and did not 
do.
    The key to all of this is that is was a transparent and 
public process. We held two 11-hour public hearings that were 
open to the public, documented with a court reporter, the 
transcripts of which are available to anyone.
    I am joined today by Lieutenant Manuel Gomez and Sergeant 
David Abro who responded to the World Trade Center site with 
the New York Police Department and the New York Fire Department 
respectively. Both of these men participated in the ombudsman 
process by testifying at one of the hearings held in New York. 
Lieutenant Gomez testified that he and hundreds of other police 
officers worked at the World Trade Center for 24 days without a 
respirator. He was issued only this paper mask, which actually 
has a label on it that reads, ``warning, this mask will not 
protect your lungs.'' This is the same mask worn by Mayor 
Giuliani, and as you can see on the cover of this book, by 
Senator Clinton, Senator Schumer, President Bush and myself 
when we visited the site.
    When Lieutenant Gomez brought his own respirator to wear at 
the site, his superiors told him to take it off and ordered him 
to wear this paper mask even though his superiors and EPA 
personnel were wearing proper respirators themselves. Worse 
yet, hundreds and thousands of responders wore these, which are 
worse than useless, did not wear proper respirators, and there 
were over 20,000 respirators sitting unused in National Guard 
armories all around New York that could have been made 
available immediately to emergency responders and workers at 
the site. We will pay for decades in health costs for this 
negligence.
    This is just an example of the kind of testimony received 
at the ombudsman hearings. We heard from residents, workers, 
business owners, city and State elected officials, 
firefighters, police officers, parents and the New York City 
Board of Education. We would have liked to hear from the 
government agencies, in particular EPA, but they declined the 
Ombudsman's and my invitation to participate.
    Except for the Ombudsman, the EPA has yet to engage in a 
public and transparent process regarding the cleanup of the 
World Trade Center. If anything, it has done just the opposite. 
Questions have gone unanswered. Information has been obtained 
only through the Freedom of Information Act, if at all, and 
trying to get the Agency to act has been a lengthy, arduous and 
often unsuccessful process. The ombudsman process was essential 
to address citizens' complaints and focus public pressure on 
the Agency to address those complaints.
    In the 4 months from September 11 to January, the EPA 
maintained, contrary to a wealth of evidence, that everything 
was safe; directed people to the city government for relief--a 
city government which offered no relief to people other than to 
tell them to clean up asbestos-laden dust with a wet mop and a 
web rag; and ultimately remained unresponsive to citizens. In 
the 4 months from January to May, the time of the EPA ombudsman 
process, the EPA finally reversed its policy, at least in part, 
and agreed to initiate remediation inside people's homes.
    Of course, there were many factors that contributed to this 
policy shift, but I do not believe it would have happened or 
happened so quickly without the ombudsman process and the 
expertise and hard work of Mr. Martin, his Chief Investigator 
Huge Kaufman, and the people who worked with them to use the 
ombudsman process so effectively.
    The EPA is finally beginning a cleanup plan now, this 
month, largely because of pressure generated by the Ombudsman. 
Unfortunately, there is now no real Ombudsman to keep a 
watchful eye on the Agency. This is disconcerting because the 
EPA plan is woefully inadequate. For example, the EPA plans to 
clean apartments only on request. This ignores the threat of 
cross-contamination and recontamination from uncleaned 
apartments and from building HVAC systems. The EPA plan 
provides for testing only for asbestos in the air. It does not 
plan to assess dust on hard surfaces that are also pathways for 
exposure. Nor will the Agency test for any of the other 
contaminants that were present in the World Trade Center debris 
other than asbestos, such as lead, mercury, dioxin, fiberglass, 
benzine, chromium, bromine and fine particulate matter.
    The cleanup plan is available only south of an arbitrary 
boundary at Canal Street, cutting off other areas covered by 
the debris cloud, including parts of Brooklyn, Chinatown and 
the Lower East Side. Besides not dealing with many potentially 
contaminated sites, this presents a severe environmental 
justice problem. The workers will not be wearing protective 
gear, which would seem to be a clear violation of OSHA 
regulations. The EPA has developed this plan without public 
comment and has not established a Citizens Advisory Group or 
help public meetings. It has not even established an 
administrative record accessible to the public.
    Quite frankly, the EPA has provided no evidence that the 
cleanup plan for World Trade Center debris complies with 
applicable laws and regulations, such as the National 
Contingency Plan and OSHA regulations, and there is no 
guarantee that EPA will act in accordance with existing laws, 
policies and procedures.
    The Agency must be forced into a public and transparent 
process. The people of New York deserve and need an 
experienced, strong and independent hazardous waste Ombudsman 
at EPA now more than ever. Unfortunately, what has happened to 
the Ombudsman is just the opposite. By placing the Ombudsman in 
the Office of Inspector General, the position has been stripped 
of its independence, transparency and effectiveness. The 
necessary procedures that legally must be followed in operating 
an inspector general's office are not consistent with the 
procedures necessary for an independent, transparent ombudsman 
function.
    For example, employee protection provisions and openness of 
operation must be very different in an IG's office because it 
is part of a law enforcement function. Whereas, an ombudsman 
must be more open to the public and at times must be a public 
advocate. The EPA Ombudsman is crippled as long as it remains 
under the control of the Inspector General. Without 
independence to control his casework or his resources, an 
Ombudsman is one in name only. With no permission to talk to 
Members of Congress or to the public without permission of the 
IG, an ombudsman is a toothless tiger indeed.
    Recent events require that we institute or reinstitute an 
independent fully funded EPA Ombudsman Office to receive, 
investigate and resolve complaints. Perhaps the best way is to 
make the Ombudsman an arm of Congress, but wherever an 
ombudsman is placed, the office must have control of its 
resources, staff and cases. The Ombudsman must be able to 
communicate with the public, must be free to act free from 
interference by outside parties or from within the Agency 
itself.
    This is nothing new to the United States or to democracies 
in general. In fact, establishing independent ombudsmen is good 
government. The Federal Government has decades of experience in 
establishing strong and independent ombudsmen. The IRS and the 
Department of Health and Human Services have ombudsmen to 
address citizen complaints regarding taxes and long-term care 
respectively. Victims of a terrorist attack and those living 
with the threat of hazardous waste deserve at least the same 
protection. An independent ombudsman is intolerable only to an 
agency that does not plan to comply with the law.
    Thank you, Mr. Chairman.
    Senator Jeffords. Thank you for that----
    [Applause]
    Senator Jeffords. I understand your concern, but please, no 
applause.
    I just want to thank you for the effort and time you have 
put into this. This is the most disturbing evidence that I have 
ever received in the way of handling the Office of Ombudsman, 
so I want to commend you for the work that you have done.
    Mr. Nadler. Thank you, sir.
    Senator Jeffords. I know that Senator Clinton, knowing her 
as I do, will take very seriously what you have said. I assure 
you that I will support her in any way possible to make sure we 
get to how this could happen and make sure it never does happen 
again.
    Senator Clinton, I have to go to another serious problem, 
too, on another committee, so I will turn it over to you now, 
and thank you.
    Senator Clinton [assuming the chair]. Thank you so much, 
Chairman Jeffords, for your concern about this issue and for 
taking so seriously the testimony of our colleague.
    Congressman Nadler, what is your current understanding of 
the status of the EPA Ombudsman's investigation into the 
handling of the situation at the World Trade Center?
    Mr. Nadler. As far as I know, it is at a total standstill. 
I am not aware of anything that has happened since the court 
decision came down that effectively allowed the EPA to strip 
the Ombudsman's Office of its function and power. Since the 
Ombudsman's Office went to the IG, we have had no communication 
with them. They have asked us nothing, communicated nothing. As 
far as I know, they have communicated with nobody in Lower 
Manhattan or in Brooklyn with respect to any of this. As far as 
I know, it simply stopped.
    Senator Clinton. Do you agree with the GAO recommendations 
about what the EPA should do to provide the Ombudsman with a 
separate budget, subject to Civil Service requirements, the 
authority to hire, fire and supervise staff, and be given more 
structural independence?
    Mr. Nadler. I certainly do. I think there is a danger, 
however, in that the EPA has willfully misinterpreted and 
misrepresented that report and has used it as justification--I 
think a very strained justification--for putting the 
Ombudsman's Office under the Inspector General. So with the 
caveat that I certainly do not agree with that strained 
interpretation, and that the Ombudsman must be independent, and 
that strengthening his independence does not mean putting him 
in an office where he cannot speak to the public or to Members 
of Congress without permission from somebody else, but means 
having an independent agency with independent budgetary 
authority and the ability to talk to anybody without permission 
from anybody else--yes.
    Senator Clinton. Do the models from IRS and HHS work in 
your opinion, and we should look to those?
    Mr. Nadler. They work there. I think they work there very 
well. Whether they are fit to transfer here, I do not really 
know. I do not know about the bureaucratic structures within 
those agencies and how they differ from EPA. Again the key is 
that it has got to be set up in such a way that the Ombudsman 
has independence in terms of budget; that he has got a set 
budget for the year; that he does not have to justify every 
expenditure to anybody else in the Agency; and that he can 
communicate publicly and hold public hearings without anybody's 
permission.
    I would add one other thing that he has never had. I think 
the Ombudsman ought to have subpoena power. One thing that was 
made very clear was that the EPA, when the Ombudsman's Office 
agreed to hold public hearings in New York on this situation at 
my request, the EPA made very clear that it would not testify. 
It would not send any witnesses, and in fact it advised other 
government agencies not to send witnesses to the hearing. The 
morning of the hearing, before the hearing convened, without 
any knowledge on the EPA's part on what was going to occur at 
the hearing, they released a press release saying it was a 
publicity stunt, a politically motivated publicity stunt and 
therefore they were not cooperating with it.
    This was designed, obviously, to undermine the hearings 
because they did not want all the information to come out. I 
think that an ombudsman, to really be able to function in these 
kinds of situations, that we to seriously consider, in fact, I 
would say we ought to, give him or her subpoena power so they 
could make the EPA testify. It is only when EPA officials 
testify and have to answer pointed questions that you get the 
best results.
    Senator Clinton. I thank you so much, Congressman Nadler, 
for your leadership on this issue and I hope that we will be 
able to get it resolved and get an independent voice back in 
the EPA. Obviously, we are most concerned about it because of 
New York, but as Senator Allard and many of my colleagues have 
pointed out, this is not a Republican or Democrat issue. It is 
not one that is geographic. It is really rooted in the 
difficulties that we have. You had in your testimony, and I 
know you were hurrying along so that you fit into the time, but 
before you left would you mind just reading this quote from 
your testimony from Justice Douglas?
    Mr. Nadler. I did skip. Thank your observations. I did skip 
a considerable part of the testimony, which I will submit for 
the record, to get it into the 5 minutes. Justice Douglas in 
1972 identified the problem that so often plagues much of the 
Federal Government. In the case of Sierra Club v. Morton, so it 
was an environmental case I assume, given that fact that Sierra 
Club was involved, ``The Federal agencies of which I speak are 
not venal or corrupt, but they are notoriously under the 
control of powerful interests who manipulate them through 
advisory committees or friendly working relations, or who have 
that natural affinity with the Agency which in time develops 
between the regulator and the regulated.'' This quote by 
Justice Douglas is as relevant today as it was 30 years ago. 
Indeed, this is why the EPA Ombudsman was created by Congress 
in 1984 when then-Congresswoman Barbara Mikulski faced an 
unresponsive EPA. As the numerous cases that were in progress 
by Ombudsman Martin when his office was destroyed, in effect, 
indicate, the need for an independent EPA Ombudsman is just as 
critical today as when the office was first created.
    Senator Clinton. I thank you for that, and I will be sure 
that a copy of your testimony is provided to Senator Mikulski. 
I am sure she will be very interested in the fact that what she 
helped to create in 1984 has been eviscerated in recent months. 
I think that is a matter of grave concern to all of us.
    Mr. Nadler. Thank you. I would also make one observation if 
I may. One of the most valuable services the Ombudsman did, I 
must say when this crisis occurred, a lot of us did not have 
tremendous experience dealing with EPA. We did not have a lot 
of hazardous waste sites in my district. As far as I know, we 
did not have any. I had never dealt with them. We were pretty 
much at sea in how to try to force action by EPA and how to get 
them off the dime and how to get them to say, wait a minute, we 
have to start dealing with indoor air as well.
    One of the most valuable services provided by the Ombudsman 
was simply that having been there at all the other places, he 
was able to say, well you know, in Shattuck they did this; in 
Libby, MT, the Administrator made a speech 4 days before 
September 11 saying it would be immoral for the Federal 
Government to expect residents and homeowners to pay the cost 
of remediating their own homes. We could see the contrast of 
what the EPA was not doing in New York. That reservoir of 
experience and openness about that experience is extremely 
valuable.
    Senator Clinton. Thank you very much.
    Mr. Nadler. Thank you.
    Senator Clinton. We continue to look forward to working 
with you, Congressman. It is always a pleasure.
    We are going to be calling the second panel now--Ms. Nikki 
Tinsley, Inspector General, U.S. Environmental Protection 
Agency; and Mr. David Wood, Director, Natural Resources and 
Environment, U.S. General Accounting Office.
    Thank you both for being here.
    Ms. Tinsley.

      STATEMENT OF NIKKI TINSLEY, INSPECTOR GENERAL, U.S. 
                ENVIRONMENTAL PROTECTION AGENCY

    Ms. Tinsley. Good morning, Senator Clinton. I am happy to 
be here.
    With me today I brought Peggy Boyer, who is our Acting 
Ombudsman. I would like to start by saying I am just going to 
give summary remarks and I would appreciate it if my whole 
statement was put in the record.
    Senator Clinton. Absolutely.
    Ms. Tinsley. Congress established the ombudsman function at 
EPA in 1984 to provide information and to investigate 
complaints from the public related to certain hazardous and 
solid waste programs. The Agency maintained that function for 
16 years, long after the statutory authority expired. Last 
July, GAO issued a report about EPA's national and regional 
ombudsman. That report identified weaknesses in the Ombudsman's 
independence, impartiality and freedom from conflict of 
interest, and its accountability and reporting.
    When I read the GAO report, I realized that our office had 
many of the attributes that the Ombudsman's office was missing. 
Congress established the Inspectors General to serve as 
independent, impartial and accountable sources for audits and 
investigations of the activities of Federal departments and 
agencies. We are sometimes known as watchdogs for our role in 
alerting the public and Congress to problems within the 
executive branch. The Act gives Inspectors General numerous 
authorities, including access to all agency records and 
subpoena authority. The Act also grants us authority to ensure 
our independence. We select, prioritize and carry out all our 
work assignments independent of agency oversight. We have 
separate budget authority, separate hiring and contracting 
authority and independent reporting responsibilities. We have 
broad authority to receive complaints and conduct 
investigations.
    Since the early 1980's, our office has operated a hotline 
to receive complaints and allegations from the public regarding 
EPA's programs and operations. We receive hotline complaints 
through our toll-free number, through correspondence, through 
in-person visits and over the Internet. Given that the EPA 
Ombudsman's role of reviewing agency actions was similar to the 
work that Offices of Inspector General were created to perform, 
and because we report both to the Congress and to the Agency, I 
believed that our office is well suited to assume the 
investigatory functions of the Ombudsman's office when I read 
the GAO report.
    In April of this year, the Ombudsman's office was 
transferred to the Office of Inspector General. Since the 
transfer, we have expanded the services of the Ombudsman to 
include all EPA-administered programs, rather than limiting it 
only to Superfund and hazardous waste issues. We have been busy 
during the 10 weeks since we began doing the work of the 
Ombudsman. The Acting Ombudsman is assessing the transferred 
caseload which is a rather challenging task due to the lack of 
any organized system of records or case file index. Our primary 
focus at this point is to work to resolve the already existing 
cases.
    We have met with individual Members of Congress and 
congressional committee staff. We have made contact with 
citizens groups in several of the communities where there are 
open cases, and we have scheduled site visits and public 
meetings for Coeur d'Alene, ID and Tarpon Springs, FL.
    Senator Clinton, I want to assure the public, EPA 
stakeholders and Congress that we will conduct the ombudsman 
work with independence and professionalism. I welcome your 
suggestions as we move forward with our new responsibilities. I 
appreciate the opportunity to participate today and would be 
happy to respond to your questions.
    Senator Clinton. Thank you very much, Ms. Tinsley.
    Mr. Wood.

   STATEMENT OF DAVID WOOD, DIRECTOR, NATURAL RESOURCES AND 
          ENVIRONMENT, U.S. GENERAL ACCOUNTING OFFICE

    Mr. Wood. Thank you, Senator Clinton.
    My statement today discusses two topics--first, a brief 
description of the standards for ombudsmen that have been 
published by professional organizations; and second, 
preliminary observations on issues raised by EPA's recent 
reorganization of its ombudsman function.
    While there are no Federal standards specific to the 
operation of ombudsman offices, several professional 
organizations provide 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 guidelines published by the American Bar 
Association, key indicators of independence include a budget 
funded at a level sufficient to carry out the ombudsman's 
responsibilities, and the power to appoint, supervise and 
remove staff.
    Standards of practice published by another professional 
group, the Ombudsman Association, advocate that for 
independence, an ombudsman report to the highest authority in 
the organization. These standards also stress the importance of 
impartiality and confidentiality in the ombudsman's operations.
    While Federal agencies face some legal and practical 
constraints in meeting these standards, we found that ombudsmen 
at the Federal agencies we reviewed for our 2001 report did 
reflect aspects of the standards. For example, at the Federal 
Deposit Insurance Corporation and the Food and Drug 
Administration, the Ombudsman's Office had its own budget and 
reported directly to the highest level of the Agency. In that 
report, we found that key aspects of EPA's national hazardous 
waste Ombudsman, then located within the Agency's Office of 
Solid Waste and Emergency Response, were not consistent with 
the standards. Our report recommended that EPA take actions 
intended to increase its Ombudsman's consistency with the 
standards, including modifying its organizational structure to 
locate the Ombudsman outside of the Waste Office.
    Partly in response to our report, EPA announced a 
reorganization relocating the National Ombudsman to the Office 
of Inspector General. This brings me to the second topic of my 
testimony--observations on issues raised by EPA's 
reorganization. Our observations are based on limited work we 
had done in response to a recent request from Representative 
Diana DeGette. For that reason and because EPA has not yet 
developed detailed operating policies or an official 
description of the position within the Inspector General's 
Office, our observations should be viewed as preliminary.
    While EPA's reorganization raises several issues, GAO 
believes that the most fundamental is intent. 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 function within the OIG will not achieve the 
objective. This is because 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 position within the 
OIG would conflict with the Inspector General Act, which 
prohibits the transfer of program operating responsibilities to 
an Inspector General. Yet, omitting these responsibilities 
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 and Emergency 
Response, it may not result in a degree of structural or 
functional independence that is consistent with the 
professional standards. For example, according to EPA, 
authority for budget and staffing for its national Ombudsman 
will rest the newly created Assistant Inspector General for 
congressional and Public Liaison, not the Ombudsman. Also, 
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, will 
have the authority to select and prioritize his or her own 
caseload independent of other needs.
    In addition, the reorganization does not appear to address 
concerns we raised in our report about the independence of the 
regional Ombudsman, whose position is generally seen as a 
collateral duty within EPA.
    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 Inspector General can at other Federal agencies where the 
functions are separate.
    Senator Clinton, Mr. Chairman, that concludes my oral 
statement. I will be glad to respond to any questions that you 
all have.
    Senator Clinton. Thank you very much, Mr. Wood. I thank you 
as the representative of GAO for another very helpful analysis, 
which I think clearly lays out the issues that we are concerned 
about today.
    Ms. Tinsley, as I review Mr. Wood's testimony based on the 
2001 report on EPA's Ombudsman, it makes a very convincing case 
that the functions that an ombudsman must properly perform 
would be quite constrained and difficult to administer within 
the Office of the Inspector General, and certainly would be at 
odds with any description of an ombudsman's role from the 
relevant professional standards.
    I think that the real crux of our issue today is the EPA 
reorganization that essentially subsumed the office within the 
functioning of the Inspector General, and whether that gives 
either the real or apparent perception of independence that is 
essential to such a position.
    Can you comment on S. 606 and the concept of having the 
Ombudsman report directly to the EPA Administrator, as opposed 
to the Inspector General?
    Ms. Tinsley. We have not prepared official comments on S. 
606, but when GAO was doing its initial review it asked us to 
review the draft legislation and comment. Our concern when we 
read it was that it sounded like the IG Act, and in fact gave 
the Ombudsman similar authorities to IGs. For example, it 
suggested that the Ombudsman would have subpoena authority, 
which we already have. It also required us to assist the 
Ombudsman as the Ombudsman did its work. So it appeared to me 
that it would create another Office of Inspector General, to 
look just at some limited aspects of EPA's programs. I do not 
think that is necessary.
    Senator Clinton. My view of Inspectors General within the 
Federal Government has been that they function usually and 
primarily as watchdogs over the internal operations of the 
Agency in which they are housed; that complaints and concerns 
that affect the performance of duties of an individual or a 
department within the Agency are clearly within the purview of 
the responsibility of the Inspector General.
    What we are talking about here is largely concerns driven 
by different constituencies--people who are outside, who are 
living near a hazardous waste site, who are breathing the air 
from the World Trade Center. I do not see any history of either 
expertise or administrative responsibility that equips the 
Inspector General to perform that function. I very much respect 
the role of an Inspector General. I think it is an essential 
ingredient within the checks and balances that Federal agencies 
have to maintain. But here, we are looking at the legitimate 
complaints about the Agency that come from outside. I think Mr. 
Wood's description of what is required for independence is much 
more convincing than the concerns about duplication of 
responsibilities within the EPA when I do not think that they 
are the same functions at all.
    I am also wondering--in your written testimony, you 
referred to various investigations that have been accepted into 
the IG's office after the dissolution of the Ombudsman's, and 
you indicate that the World Trade Center investigation has been 
incorporated into an already ongoing OIG assignment. What does 
that mean?
    Ms. Tinsley. We had already begun some work to look at 
EPA's actions connected with the tragedy at the World Trade 
Center. As we looked at the Ombudsman's files, we added some 
questions to our ongoing assignment, so that we could address 
what was in there. In addition, we did contact Congressman 
Nadler's staff, although they did not choose to meet to discuss 
our work with us. Of course, your staff was involved in our 
briefings when we took over the Ombudsman function, and when 
that decision was actually announced by the Administrator.
    Senator Clinton. Of course, those briefings led to our 
concerns. We are very concerned about the decision to eliminate 
the independent Ombudsman and to basically incorporate these 
very specialized constituency-driven concerns into the ongoing 
work that you do.
    Now, I wanted to ask Mr. Wood, you indicated in your 
testimony that according to ABA guidelines, key indicators of 
independence include sufficient funding, ability to spend funds 
independent of any approving authority, and the power to 
appoint, supervise and remove staff. Now, based on these 
indicators, and based on what you know about the EPA's 
testimony concerning their reorganization, do you believe that 
the Ombudsman will be able to establish that kind of 
independence within the Office of Inspector General?
    Mr. Wood. I think the short answer would be no. Our reading 
of the standards is that those characteristics are to adhere to 
the Ombudsman in its own right, and not by dint of being 
included in or placed in an office that also may happen to have 
similar characteristics of independence.
    Senator Clinton. Also in your testimony you talked about 
how placing the Ombudsman within the OIG alters the 
relationship between the function of the Ombudsman and the 
individuals who make inquiries or complaints. Can you elaborate 
on that?
    Mr. Wood. I think it harkens back to the distinction that 
you just made about an ombudsman being more oriented to hearing 
complaints from the public. It is frankly that element of 
informal provision of information and dispute resolution that, 
actually if included in the IG, we think would violate the 
Inspector General Act.
    Senator Clinton. So in other words, if the best intentions 
of this reorganization were taken at face value and the 
Ombudsman were incorporated within the Inspector General Act, 
that might in itself violate the legislative act establishing 
the Inspector General.
    Mr. Wood. They can define a position--and I believe this is 
what EPA is intending to do--in a way that does not violate the 
Act. However, our point is, if you do that, you have removed an 
essential element of what an ombudsman is.
    Senator Clinton. Right. Well, I think that our concerns, 
Ms. Tinsley, do not reflect in any way upon you or your office, 
but really go to the heart of the matter, which is that the 
EPA, as we heard very eloquently and forcefully presented by 
Congressman Nadler, has not responded adequately to the 
concerns and complaints and the realities that are present in 
Lower Manhattan. I speak specifically about that, but as 
Senator Allard said, there are many other cases in Colorado and 
elsewhere where that has been also a problem; and that not 
until the independent Ombudsman got involved was there any 
answer forthcoming about a lot of the deep anxieties that 
people rightfully had. Then all of a sudden, these hearings 
that are held for 11 hours where people are putting forth very 
disturbing evidence about how their efforts to clean their 
homes, how their efforts to use respirators were basically 
either short-circuited or denied, raised serious questions 
about the EPA's functioning. All of a sudden, the Ombudsman is 
gone.
    That certainly raises some serious questions about what the 
EPA's real goals are. I think that many of us believe that we 
are going to have to take legislative action to clarify what 
was the original idea behind the Ombudsman when first created 
back in the 1980's, that this would be an independent voice 
with independent authority, independent budget. I think we have 
seen a perfect example here as to why we need that.
    Senator I am going to have to excuse myself, like our 
Chairman, and I appreciate your being here to carry on with 
this very important hearing.

 OPENING STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM 
                       THE STATE OF IDAHO

    Senator Crapo [assuming the chair]. Thank you very much. I 
apologize for being late.
    Let me make my apologies to the committee and to the 
audience as well. We had a very important Republican Conference 
this morning that started early and we thought was going to get 
done before this hearing began. It ran on and on and I was 
unable to leave there on time. So I apologize for being late to 
the hearing today.
    [The prepared statement of Senator Crapo follows:]

   Statement of Hon. Mike Crapo, U.S. Senator from the State of Idaho

    Thank you, Mr. Chairman.
    I appreciate your convening this legislative hearing on S. 606, the 
Ombudsman Reauthorization Act. As you well know, this measure is of 
critical importance to Idahoans and many communities throughout the 
country.
    Before I make my opening statement, I would like to extend a 
welcome to all of our guests today who have been invited to comment on 
the legislation. I would also like to express my appreciation to Kathy 
Zanetti of the Shoshone Natural Resources Coalition, who has traveled 
all the way from Wallace, Idaho, to be with us today.
    The position of ombudsman has a long and distinguished history. 
Several Federal agencies, State governments, and other organizations in 
the U.S. have established ombudsmen to fill a unique role of resolving 
grievances. An ombudsman is more than just a fact-checker or a bean-
counter. An ombudsman is link to our communities and a last recourse 
for many who cannot find assistance with their grievances.
    Establishing an ombudsman is a delicate task. It requires just the 
right amount of initiative, investigative experience, and confidence of 
and advocacy for the public. To maintain the trust of the public, 
however, an ombudsman needs to operate without even the appearance of 
interference from others within the agency. For their part, operations 
officials whose work may be investigated need to feel that an ombudsman 
is fair and professional.
    For another analysis on the proper functions of a Federal 
ombudsman, I'd like to take few moments to read some excerpts from the 
Administrative Conference of the United States' report entitled, ``The 
Ombudsman: A Primer for Federal Agencies.''
     Creating an ombudsman provides both the public and the 
government a way to resolve a dispute that persists in spite of efforts 
to deal with it at the operational level.
     Executive ombudsmen . . . should report to the head of the 
agency . . .
     The ombudsman should, in general, have the power to 
conduct a formal interview of all agency personnel on any matter under 
investigation. The ombudsman's jurisdiction should encompass all the 
grievances arising from the agency's dealings with the public. Among 
the potential advantages of the office are its accessibility for 
citizens, its speed, its flexibility, and its informality. The 
ombudsman should be encouraged to look into a complaint even where no 
'case or controversy' exists, other remedies have not been `exhausted,' 
or the complaint is not `ripe' in the legal sense.
    [The report is from 1990. No longer in existence, the 
Administrative Conference of the United States was established as an 
independent Federal agency to ``promote improvement in the efficiency, 
adequacy, and fairness of procedures by which Federal agencies . . . 
[perform] governmental functions.'']
    Turning to another source, we should look to comments of the United 
States Ombudsman Association, the organization of public ombudsmen, 
which will also be submitting testimony today. While the USOA generally 
supports the establishment of independent ombudsman agencies, a model 
many States have followed for public ombudsmen, for the investigation 
and resolution of complaints, the association believes that S. 606 
would do much to improve the functionality of the ombudsman's office 
within the EPA. What's more, the USOA recommends that ``everything 
reasonably possible should be done to maximize the ombudsman's 
independence within the agency where the office is situated.''
    The GAO wrote a report in 2000 on the problems with which the EPA 
has established the Office of the National Ombudsman and will be 
testifying here today. The report closely follows the American Bar 
Association's guidelines for ombudsmen--independence, budget and 
staffing authority, and the power to select cases. It is my expectation 
that the GAO's statements today will point out that the EPA's 
transition of the Office of the Ombudsman at best leaves many questions 
unanswered and at worst, fails to heed the recommendations of the 
report. The GAO's recommendations for the EPA Ombudsman are generally 
consistent with the language of S. 606.
    Despite all the support for the approach outlined in S. 606, 
perhaps what is most troubling is the reaction of the EPA to the 
communities throughout the country that have expressed concern with 
what they believe to be a ``muzzling'' of the important ombudsman 
function. When asked about how the ombudsman will function, agency 
personnel have indicated that there is no current operating model, nor 
is one expected for the foreseeable future. For communities that depend 
on the last recourse provided by the ombudsman, this is not a 
comforting development. It is my hope that the EPA will be able to 
announce today its guidelines for the operations and future of the 
Office of the Ombudsman and lay aside many of our troubling concerns.
    Mr. Chairman, I understand that you have other commitments that do 
not allow you to remain with us for all the panelists. Before you 
leave, I want to share with my thanks for calling this important 
hearing.
    I look forward to a productive, informative, and vigorous 
discussion on S. 606 and the many issues involving the Office of the 
EPA National Ombudsman.
    Thank you, Mr. Chairman.

    Senator Crapo. I would like to ask a couple of my own 
questions, and then we will turn to Senator Carper. Again, I 
apologize for not having been here for most of your 
presentation of your testimony. However, I have read your 
written testimony and am familiar with the issue.
    Ms. Tinsley, I also realize that you have probably been 
through this, answering this question already a lot, but it 
seems to me that what we are learning as we get reports from 
the U.S. Ombudsman Association and we review the American Bar 
Association's standards, we get the GAO reports and other 
things, is that probably the most significant factor in 
establishing an effective ombudsman's office is independence. 
As you know, at the outset when the proposal was made by EPA to 
transfer the Ombudsman's Office to the OIG, I raised the 
questions about who was going to make the decisions about what 
cases are going to be taken. Who is going to make the decisions 
about what staff will be hired and what staff will be allocated 
to a particular investigation? Who is going to make decisions 
about travel? Who will actually review and approve the report 
of the Ombudsman? Will it be the Ombudsman him-or herself or 
will the Ombudsman submit that report to the Inspector General 
for the Inspector General's final approval? Would the Inspector 
General have the authority to change an Ombudsman's report 
under the set-up that you now have?
    It is my understanding that the answer to all of those 
questions is that it is the Inspector General who will be 
making the final determination in each of those areas. The 
Inspector General will decide which cases the Ombudsman can 
take. The Inspector General will decide what funding resources 
will be allocated to the Ombudsman, will decide what staff the 
Ombudsman will have, will decide what travel will be 
authorized, and will actually decide whether the report of the 
Ombudsman is sufficient and make the final decision as to 
whether the report will be issued in its proposed form. Is that 
correct?
    Ms. Tinsley. Ultimately, I am responsible for everything 
that happens in the Office of Inspector General. Quite frankly, 
the way things work is I do not need to get engaged normally 
unless I get called in for a tiebreaker, if you will. All our 
reports are done under the government audit standards and are 
Ombudsman's work will be as well, which has rigorous quality 
control included. I cannot change a report because our reports 
are based on the information that is gathered in the analysis 
that we have done. We work very hard to make sure that 
everything we say is accurate and supportable. So I do not go 
around changing reports.
    The work we do and how we budget for it is based on those 
cases that are most important and those that we think will 
address our stakeholders, the Congress and the Agency's needs. 
The Ombudsman's work appears at this point to be primarily very 
high-risk from the standpoint of environmental protection and 
public health protection. Those are the kinds of cases that we 
give the highest priority to. At this point based on what we 
have seen, I am not concerned that we will not be able to 
address the existing and future Ombudsman workload within our 
normal work processes. Once we have done this for a while, if 
we find out that we cannot, we will adjust our work processes. 
To date, it appears that the way we go about doing and 
prioritizing all of our assignments will work for the Ombudsman 
work as well because it is floating to the top.
    Senator Crapo. Well, let's just take the case of the Idaho 
work that is being done by the Ombudsman. My understanding when 
the shift was made to move the Ombudsman's Office into the IG's 
Office that--well, I actually asked the question at that point, 
who is going to issue the report, because we still want and 
wanted then to have the report issued promptly. The answer that 
I got was that the Ombudsman would be encouraged to issue his 
report soon. That report would have to go to the IG for final 
review and then it would be promulgated. There was no assurance 
that the report that the Ombudsman issued would be the report 
that the IG authorized.
    Now, I hear you telling me that you are not likely to 
change that, but are you telling me you cannot change that 
report?
    Ms. Tinsley. I cannot change it unless there is evidence to 
show that there is something inaccurate in the report.
    Senator Crapo. What you are telling me, then, is that you 
are a final overview over the Ombudsman. If you do not agree 
with the Ombudsman's report because you see different evidence 
or read the evidence a different way, that you can disagree 
with it and change it.
    Ms. Tinsley. I could do that as long as it was in 
accordance with our standards. That has never happened in a 
report since I have been the IG, but it would have to be 
supported by the evidence.
    Senator Crapo. The point that I am making is that that 
makes you the Ombudsman.
    Ms. Tinsley. I think that makes me ultimately accountable 
for the work of the Ombudsman.
    Senator Crapo. I think we may be saying the same thing.
    Ms. Tinsley. Semantics, yes.
    Senator Crapo. I also wanted to go back and make sure that 
I understand correctly that with regard to the question about 
how much staff is allocated, what travel is authorized, and so 
forth--those are also decisions that the Ombudsman has to 
obtain permission from basically you for.
    Ms. Tinsley. We have a process where we allocate budget 
funds to different pieces of the organization. If someone runs 
short, usually there is not a problem with moving money from 
one piece to another, which we have the authority to do with 
our budget. So again, I do not see any issues with travel, with 
assignments, with anything because thus far we have not had 
issues in our organization with that kind of thing.
    Senator Crapo. I can tell you from my perspective, I do not 
know about during your tenure, but I have seen issues at the 
EPA over those issues relating to the Ombudsman.
    Let me just ask one last question. When we in Idaho first 
decided that it would be helpful, we hoped helpful, to get the 
Ombudsman to be involved in what is happening in the Coeur 
d'Alene Basin, we made our pitch. Our congressional delegation 
asked the Ombudsman to take the case. We were very fortunate 
that he agreed to do so, in my opinion. Once again, if we were 
starting that process all over again under your current 
structure, wouldn't it be you that we have to make the real 
pitch to, in addition to the Ombudsman? We would have to go to 
the Ombudsman first, but we would also have to go to you to 
make sure that you would also approve and agree to allow him to 
take that case?
    Ms. Tinsley. The way the process works in our organization 
normally is that if we get a congressional request, I do not 
usually go out and talk to the congressional staff. In this 
case, it would be our Office of congressional and Public 
Liaison, where the Ombudsman is sitting. They would prioritize 
the work and I would just find out through our normal 
management information system that you had a high priority 
request and the staff had decided that it was important for us 
to do.
    So it is more an information function for me. I do not 
manage every assignment, every trip. I try to stay aware.
    Senator Crapo. I realize that you do not do that, and that 
is a sign of a good manager, but the point I am making is that 
you could if you chose. If something came up and somebody said, 
we really do not want the Ombudsman investigating Idaho. You 
could say no.
    Ms. Tinsley. I could say no.
    Senator Crapo. That is the point I am trying to make. That 
is the independence issue that I am trying to get at.
    Mr. Wood, I have a lot of questions for you, too, but I 
know I have used up my time, so we will see if we get a second 
round here.
    Senator Carper, I believe you are next.
    Senator Carper. Well, you are our Chairman. I guess you can 
decide.
    [Laughter.]
    Senator Carper. Seize the day--carpe diem, carpe diem.
    Senator Crapo. That is right.
    Senator Carper. To our witnesses, thanks for joining us 
today.
    Do I understand that the statutory authority for the 
Ombudsman was created in 1984? Does that sound about right? The 
statutory authority for the Ombudsman expired in 1989?
    Mr. Wood. I believe it was 1988.
    Senator Carper. Since that time, there has been no 
statutory authority for this position. So it has been about 13 
or 14 years since the statutory authority for the position 
expired. Do I understand that this hearing is designed to find 
out whether it is appropriate for the Ombudsman to be located 
or housed, supervised by the IG, the Inspector General, as 
opposed to being a more independent party within EPA? Is that 
pretty much----
    Senator Crapo. Perhaps I could answer that. That is 
generally the point. As you may be aware, there is legislation 
that has been introduced that Senator Specter and I and several 
others are cosponsors of, which is also a subject of this 
hearing. That legislation would create an independent Office of 
the Ombudsman. After that legislation was introduced, there 
were also the actions by the EPA to address the issue itself by 
moving the Office into the IG's Office.
    So this hearing, as I understand it, is sort of to cover 
all of the issues.
    Senator Carper. All right. It seems to me, just as a casual 
observer here today more than anything else, that if we wanted 
to resolve this issue, we could simply take up your legislation 
and pass it and send it on to the President and we would 
resolve just where this position ought to lie.
    Senator Crapo. So stipulated.
    [Laughter.]
    Senator Carper. I am ready to move right to markup at this 
point in time.
    Mr. Wood, let me just ask of you, what do you make of the 
legislation that Senator Crapo here has introduced, along with 
a couple of our colleagues? Is there any merit in it at all?
    Mr. Wood. I am sorry?
    Senator Carper. Any merit in it at all?
    Mr. Wood. Yes.
    Senator Crapo. Be very careful with your answer.
    [Laughter.]
    Mr. Wood. I will be.
    Senator Crapo. Just kidding.
    Mr. Wood. Like the IG, we have not submitted any formal 
comments, but I have read the bill and I think by doing a few 
of the key things that are consistent with the standards 
promulgated by the professional ombudsman associations, it 
would go further toward----
    Senator Carper. Do they have their own association?
    Mr. Wood. Oh, there are actually a couple, yes.
    Senator Carper. Rival associations?
    Mr. Wood. There is the Ombudsman Association and the U.S. 
Ombudsman Association.
    Senator Carper. All right.
    Mr. Wood. There is also a coalition of Federal Ombudsmen. 
The bill does have certain provisions that would promote 
structural independence, for example, things like reporting 
directly to the Administrator, a separate budget over which the 
Ombudsman would have control, and within Civil Service 
guidelines, the ability to hire and fire its own staff--things 
like that.
    Senator Carper. When you look at the legislation, do you 
see anything that you think we ought to change before we go to 
markup on it?
    Mr. Wood. I guess we would like the opportunity to go over 
it in a little bit more detail, but we will be glad to supply 
comments.
    Senator Carper. All right. Good.
    Ms. Tinsley, any comments on the legislation? I do not want 
to put you in the hot seat here. If you rather just pass, you 
can do that, but anything you find with the legislation that is 
especially appealing or not appealing?
    Ms. Tinsley. As we read through the proposed legislation--
we did this about a year ago--our only concern was that it 
seemed to duplicate a lot of the IG's role from the standpoint 
of investigations of agency activities, which I see as an IG 
role and which is what the IG Act created the IGs to do.
    Senator Carper. So you are not quite ready for us to go 
straight to a markup on that legislation?
    Ms. Tinsley. I think we would like to provide some comments 
where we see conflicts if you were to do that.
    Senator Carper. Fair enough. Does it seem peculiar to you 
that the Congress, which has not authorized or provided 
statutory authority for this position for 13 or 14 years, is 
now concerned with where this position is housed within EPA? Do 
you see any irony in that? That is not a fair question.
    Ms. Tinsley. No.
    Senator Carper. All right. You do not have to answer that. 
I see a little irony in that myself.
    All right. Thank you both very much. Mr. Chairman, thanks. 
It is a pleasure to call you Mr. Chairman.
    [Laughter.]
    Senator Crapo. Thank you very much. Maybe we will talk to 
you about cosponsoring the bill.
    Senator Carper. All right.
    Senator Crapo. Senator Specter.

OPENING STATEMENT OF HON. ARLEN SPECTER, U.S. SENATOR FROM THE 
                  COMMONWEALTH OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman.
    At the outset, I am pleased we are finally having this 
hearing. I have been very much concerned about what has been 
going on at Marjol, and the conflict which has been reported to 
me and to others about what has happened with Mr. Robert 
Martin, and a disagreement with the Inspector General, as I 
understand it--that is what I want to hear about--with Mr. 
Martin resigning, contending that he had not been given notice 
and his files had been seized. I am glad, Ms. Tinsley, that you 
are here and Mr. Martin is here so that we can try to make a 
determination as to what has actually happened.
    Mr. Chairman, I have a great many questions for this panel, 
but I think it would be most expeditious, at least speaking 
from my point of view, if we heard from Mr. Martin, with Ms. 
Tinsley remaining, so we can see what the differing positions 
are and the appropriate inquiries can be made by this 
committee.
    Mr. Crapo. That is not the structure that we had set up for 
the hearing. I don't know, Ms. Tinsley, can you remain here at 
the hearing during Mr. Martin's testimony?
    Ms. Tinsley. Well, I had another appointment scheduled. We 
can call and try and change that.
    Senator Specter. Excuse me?
    Ms. Tinsley. We could call and try and change that. I had 
another meeting after this, but we could call and try and 
change that.
    Senator Specter. We could appreciate it if you would. What 
I would like to do, Mr. Chairman, going right to heart, we have 
waited for this hearing for a long time, and it is not to the 
point to ask Ms. Tinsley questions, then to hear from Mr. 
Martin without hearing Ms. Tinsley and giving her a chance to 
give her position. So I would like to move right to that.
    Senator Carper. Mr. Chairman, I do not have any objections, 
if it is agreeable to you, I think it is a perfectly good idea.
    Senator Crapo. Well, one of the issues here is we have in 
the next panel, if I remember correctly, a number of other 
witnesses which could take some time. Are you suggesting that 
we bring Mr. Martin forward at this time?
    Senator Specter. If Ms. Tinsley can wait until the others 
have testified, that would be most orderly. If she cannot, then 
I would request to hear from Mr. Martin at this time.
    Senator Crapo. I think that maybe the easiest thing to do 
would be to hear from Mr. Martin at this time, and then you 
could ask questions of both of them on the panel at this point.
    Senator Specter. I would very much appreciate that, Mr. 
Chairman.
    Senator Crapo. Mr. Martin, would you please come forward? 
We will deviate from our procedure briefly. Mr. Martin, what we 
would do is allow you to make your presentation and then 
following that, we will return to Senator Specter for 
questions. Does that work, Senator Specter?
    Senator Specter. Thank you very much, Mr. Chairman, that 
would be fine.
    Senator Crapo. Thank you.
    This is Mr. Robert Martin, the immediately preceding 
Ombudsman.
    Mr. Martin.

   STATEMENT OF ROBERT MARTIN, FORMER EPA NATIONAL OMBUDSMAN

    Mr. Martin. Thank you, Senator Crapo, members of the 
committee. It is very good to be here, very good to see you 
again, Senator, and Senator Specter as well.
    With your permission as Chairman, I would like to 
incorporate for the record my written statement.
    Senator Crapo. Without objection.
    Mr. Martin. Thank you.
    I also have present with me Mr. Devine, who is my legal 
counsel. He may be able to answer questions as well for the 
benefit of the committee.
    Senator Crapo. Thank you.
    Mr. Martin. Thank you.
    That being said, I really just have a few points and would 
be available to answer any and all questions that Senator 
Specter and others have on the committee.
    The National Ombudsman function as I served in it for 
approximately 9.5 years as a career employee of the U.S. 
Environmental Protection Agency is gone. It has been destroyed. 
That happened when I was summarily transferred to the Office of 
Inspector General. My position description, which specified my 
duties as Ombudsman, was eliminated. I was being sent to an 
unclassified position within the Office of Inspector General 
where frankly I would no longer be Ombudsman. To go there under 
those terms, in my view, would have been a betrayal of my 
charge as Ombudsman, and also a betrayal of the communities 
which I had served in many cases for many years, including in 
Idaho and Pennsylvania. So I would not go. I resigned.
    So I appear before you today as an ordinary citizen, like 
many of the folks I worked with over the years. I am pleased to 
do that.
    Second, I would like to make the point that I feel, as both 
a legal and a practical matter, the National Ombudsman function 
cannot exist within the Office of Inspector General. I do not 
believe the organic statute of the Inspector General allows for 
that, and I do not feel, as a practical matter, that it can 
work. The National Ombudsman function, as I performed it over 
the years, was open, totally open and transparent. I do not 
feel it can work in the IG. So I do not feel that, good 
intentions notwithstanding, we have an Ombudsman today. I hope 
that this committee and this Congress does the right things and 
makes one, for all the people who have been helped by this 
important institution, and will continue to need that help.
    Because you do not have an Ombudsman today, I feel that 
there are many communities, New York City included, that are 
not protected from an unchecked bureaucracy. I guess I harken 
back to the quote which Senator Clinton asked Congressman 
Nadler to read into the record by former Justice William 
Douglas. It is not that we are dealing with bad, venal people, 
it is just that bureaucracies tend to get out of control if 
they are not checked. I think it is a fundamental tenet going 
back to the beginning of the country--the separation of powers, 
checks and balances. I think the Ombudsman function is such a 
check and balance and must exist independently to protect 
American communities.
    By transferring the function to the Office of Inspector 
General, that is gone. That is gone, in my opinion. In so 
doing, I feel communities lost, and I do say lost, a means of 
acquiring truth. As Senator Allard said earlier, truth is what 
came from the Shattuck case in Colorado. Truth is what was 
evolving in Idaho and in Throop, PA and in a number of other 
cases which were ongoing during my tenure. Openness is gone, 
too.
    I tried to bring to the job three things over the year. One 
was to really listen to people. That is hard work, and not 
justify the position of the EPA--sanction what had happened 
before. I thought it was always important to truly listen, go 
back to square one, understand why it is we were even there, 
especially in Idaho, Mr. Crapo.
    Second, to bring compassion. I do not feel that EPA brought 
a lot of that to different communities. That is needed because 
we work for the people. We work for the people, not the other 
way around.
    Third, to ensure thoroughness. In each and every case, I 
had undertaken over 9\1/2\ years, I had heard from the Agency 
that there was not a problem, except in Idaho. You've got all 
kinds of problems in Idaho. I found in the end analysis in many 
of these cases that we had not been thorough enough in 
understanding the problems we were facing. Instead of listening 
to the people who always offered real good information--real 
common sense facts--we often talked to each other in EPA or 
talked to other government entities. People were not treated 
right. Things did not happen, as they should have happened, and 
some things happened that should not have happened. I did the 
best I could over 9\1/2\ years to make sure that has changed.
    In so doing, I had the help of a number of people. I would 
like to commend them at this time--my former investigator, Mr. 
Kaufman; my secretary, Louise Hall; my chief scientist, Doug 
Bell; and also a group of young men who never quit as interns, 
Mr. Spencer Haines, Mr. Ken Remelt, and Mr. Justin Blum.
    Much was done, much was done through the National Ombudsman 
function for many years, to bring truth and openness, and I say 
a measure of justice, too, in the end, in many of these cases. 
It was not done by me alone. It was done in collaboration with 
Members of Congress, with people like Senator Allard, 
Congressman Nadler, Senator Crapo, Senator Specter. A free 
press also was important, and direct one-on-one ground-level 
communications with people in their homes who provided all 
kinds of evidence that was very useful in the end in 
determining what recommendations were proper to make to EPA 
management to address the situation.
    That needs to continue. You know what? I feel it will. We 
can discuss the law. We can discuss the facts. I have and 
continue to have I think an abiding faith in the strength of 
the American people and their communities. That will abide.
    Last, in the way of a vision for where all this goes, I 
feel this committee should proceed to markup as soon as 
possible on the Ombudsman Reauthorization Act of 2002. I think 
that the function should once again have the sanction of the 
Congress. I think it needs to be a true and independent 
National Ombudsman for the environment. I think it should 
report to the Congress and be able to make recommendations to 
the executive branch, including the EPA. I think it should 
report to where the people have placed their trust, which is 
this body.
    During the interim period, I guess I want it known that I 
did resign. I did not just completely walk away. There was a 
complaint pending with the Office of Special Counsel. They 
asked me to mediate with EPA to see if maybe I could finish the 
work I had started for a very limited period of time and then 
go. I guess I want you to know that would be my desire. The 
deadline for mediation has passed with no response from EPA. I 
guess that is where things are.
    Senator Crapo. Thank you very much, Mr. Martin. We 
appreciate your being willing to come out of order and make 
your remarks.
    Mr. Martin. One final request--because of what happened to 
me, frankly, I also think that whistleblower rights should be 
protected. I understand that there is legislation pending in 
the Senate to allow for that--the Whistleblower Amendments 
Protection Act of 2002. I would also recommend that, and 
suggest that the salient provisions be incorporated in the 
Ombudsman Reauthorization Act. That is all.
    Senator Crapo. Thank you very much. As I was saying, those 
of us who have worked with you recognize and appreciate the 
influence you have been able to have in the communities where 
we serve. In fact, it was in Idaho where you first became 
involved in the Triumph site, where we finally were able to get 
some resolution. That was one of the main reasons we tried to 
successfully invite you back to Idaho to look at the Coeur 
d'Alene basin issues. I realize the matter is now in 
negotiation with regard to the litigation that is ongoing, but 
I certainly would hope that some way would be worked out that 
you could finish the investigation in Idaho, and truly conclude 
that work as well as maybe other work that you had been working 
on.
    I want to tell you my personal thanks for the work that you 
have done for Idaho and for the Nation.
    Mr. Martin. Thank you.
    Senator Crapo. Senator Specter, did you want to continue 
with your line of questioning now?
    Senator Specter. Yes. Thank you very much, Mr. Chairman.
    Mr. Martin, I agree with what the Chairman has said, 
Senator Crapo has said, and I thank you for what you have done 
on a Pennsylvania matter. My focus of attention is on Marjol, 
an area where my staff and I have been working since 1988. It 
goes back to Senator Heinz' tenure in the Senate and a great 
deal of activity in the ensuing 14 years. Based upon what has 
been reported to me from your activities and Mr. Kaufman's 
activities, you took very strong positions for protection of 
the community seeking broad relief under Superfund and strong 
activities from EPA, and essentially have been thwarted in 
those efforts.
    Would you state exactly what did happen, first with respect 
to your recommendations, and second with respect to what the 
EPA did--the higher levels of the bureaucracy?
    Mr. Martin. Yes. Prior to the completion of my preliminary 
report on the Marjol site, which was filed on October 10 of 
last year with the Agency and also with the Pennsylvania 
congressional delegation, I had investigated the Marjol case 
for seemingly about a year. At the beginning of that case, as 
you may know, Senator, I held a public, on-the-record hearing 
in the community itself, at which residents testified and 
virtually every member of every surrounding local government 
was present, as was Congressman Sherwood.
    Senator Specter. What were your recommendations, Mr. 
Martin?
    Mr. Martin. My recommendations, filed in October of last 
year, were to bring in the Superfund Program. The Superfund had 
not been invoked at Marjol, except in the very early days of 
the site to perform a removal action.
    Senator Specter. Why hadn't Superfund been invoked?
    Mr. Martin. Why had it not been invoked?
    Senator Specter. Correct.
    Mr. Martin. The rationale of the Agency from the Region 3 
office was that because there was a responsible party, one, and 
because the responsible party was viable, two--meaning 
financially--that the it would be valid to proceed under the 
Resource Conservation and Recovery Act for corrective action, 
as opposed to bringing in the Superfund program.
    Senator Specter. When you terminated, it has been brought 
to my attention that you considered your files to have been 
seized. Is that correct?
    Mr. Martin. That is correct.
    Senator Specter. Would you say exactly what happened?
    Mr. Martin. To the best of my recollection, yes, I shall. I 
was aware of the planned transfer of me and the National 
Ombudsman function to the Office of Inspector General. As a 
pretext, I had in September of last year following the release 
of the General Accounting Office report, written to the 
Administrator. That is the only time I have ever written to an 
Administrator, but I felt it was important to do so. Of course, 
recommended that the GAO recommendations be adopted, so that I 
would have full powers as Ombudsman--meaning to hire and fire 
my own people, supervise my own people, have my own budget, so 
that these cases could be moved and finished.
    I said in that writing that in any event, in no event, 
should the function be transferred to the Office of Inspector 
General because that would only provide the false appearance of 
independence and not true independence. I offered to meet with 
the Administrator to discuss my own recommendations in 
conjunction with the GAO's. I heard nothing until November, 
when I received a direct communication from the Administrator 
that she was deliberating and would make a decision shortly. I 
then heard on November 27 that a decision had been made, that 
the National Ombudsman function would be folded into the Office 
of Inspector General.
    Senator Specter. In your opinion, why was that done?
    Mr. Martin. In my opinion, that was done--well, I can tell 
you what the effect of it was. It was to silence effectively 
the National Ombudsman function and eradicate its independence.
    Senator Specter. Well, was it done in common parlance, Mr. 
Martin, because you had become a hair shirt? You had given them 
too much trouble and they wanted you out of the position where 
you could exercise independent judgment on what ought to be 
done on these sites?
    Mr. Martin. It became clear to me that as I was summoned in 
and told of the transfer that I was not going to be sent there 
as Ombudsman. I would not have my position description which 
specifies that I am Ombudsman and lays out my duties. I would 
no longer be able to communicate directly and independently 
with the Congress and with the media, and I feared even the 
people who had asked me to do the cases.
    Senator Specter. Was the Administrator unhappy with what 
you were doing? Did the Administrator in effect disagree with 
your policies and wanted to eliminate your authority by making 
the transfer to the Office of Inspector General?
    Mr. Martin. As I noted earlier, we had never spoken 
directly, so I had no first-hand knowledge of what her motives 
were. I can tell you that is the subject of an FBI inquiry 
right now. I have been asked to interview with the FBI and have 
done so.
    Senator Specter. What is the nature of the FBI inquiry?
    Mr. Martin. There have been allegations made relating to 
potential conflicts of interest of a financial nature on the 
Administrator's part, with respect to my cases.
    Senator Specter. Aside from that, was there a general 
displeasure by the head officials in EPA with the kinds of 
strong recommendations you were making and the insistence that 
you were pushing forward to get corrective action as you saw 
it?
    Mr. Martin. Yes.
    Senator Specter. Did this exist beyond Marjol, in other 
places?
    Mr. Martin. Yes, it did.
    Senator Specter. Where else?
    Mr. Martin. It existed in Idaho. It existed in New York 
City. It existed in many of the other cases.
    Senator Specter. Back to the issue of seizure, precisely 
what happened?
    Mr. Martin. On April 12 of this year, U.S. District Judge 
Roberts of the District Court in Washington vacated a temporary 
restraining order which had served to protect me from being 
transferred and my files from being transferred to the Office 
of Inspector General. Within hours of the vacating of the TRO, 
I understand orders were issued to come for the files in my 
office as soon as possible, which included the Marjol and Coeur 
d'Alene basin files.
    Senator Specter. You say orders were given?
    Mr. Martin. Yes. You cannot move----
    Senator Specter. Who gave the orders?
    Mr. Martin. That I am not sure about, sir, but I know you 
cannot move----
    Senator Specter. When did you first learn of it?
    Mr. Martin. I learned of it after--well, I want to note 
that while the TRO was being vacated and personnel were being 
sent to remove the files, I was on official travel. I was not 
in Washington at the time.
    Senator Specter. Were you told that your files were going 
to be taken before they were taken?
    Mr. Martin. On that occasion, no.
    Senator Specter. On any occasion?
    Mr. Martin. I understood in January from Assistant 
Inspector General Johnson that the Office of Inspector General 
intended to take the files, but that was before Federal Judge 
Roberts issued a temporary restraining order.
    Senator Specter. When you have used the word ``seized,''--
it is not my word, it is the word I understand to have used--
why did you characterize it as ``seized''? That is a very 
forceful term, signifying taken against your will. Why do you 
use that term?
    Mr. Martin. Well, in the first instance, I did not agree to 
the transfer. I felt it was an invalid transfer. As I noted a 
moment ago, I was on official travel at the time this occurred, 
testifying before the legislature in New York City, and then 
working on the Shattuck case in Denver, Colorado. I understand 
there is an e-mail from the Office of the Administrator 
providing instructions that the files were to be taken as 
quickly as possible.
    Senator Specter. E-mail from the Administrator, Governor 
Whitman?
    Mr. Martin. From the Office of the Administrator. I do not 
know that it was from her personally, sir.
    Now, the only personnel remaining was my senior scientist, 
Mr. Bell. Because I was away, he was asked to transfer all of 
the files. He did so under protest and duress.
    Senator Specter. Mr. Martin, without those files can you 
carry on your work at Marjol or the other locations you 
identified?
    Mr. Martin. It would be very hard.
    Senator Specter. Would it be possible--hard or impossible?
    Mr. Martin. It is possible. I could begin the cases de 
novo, and ask for cooperation among all the parties to start 
again.
    Senator Specter. To start again.
    Mr. Martin. Yes, to start again. I must note that in 
between the issuance of the restraining order and the final 
seizure of the files, there was an attempted seizure of the 
files while the restraining order was in effect.
    Senator Specter. An attempt to take the files?
    Mr. Martin. Yes. My senior scientist, Mr. Bell turned them 
away at the door, showing the restraining order.
    Senator Specter. Ms. Tinsley, were Mr. Martin's files taken 
without any notice to him?
    Ms. Tinsley. No. We notified his office and he was aware of 
the transfer, I believe, because we tried to notify him by 
phone and through the supervisor that he had prior to the 
transfer. So actually, we----
    Senator Specter. Who tried to notify him?
    Ms. Tinsley. Our Assistant Inspector General, who would be 
his direct supervisor did that.
    Senator Specter. What is the name of that person?
    Ms. Tinsley. Gary Johnson.
    Senator Specter. Is that person here?
    Ms. Tinsley. No, he is not. I believe that Mike Shapiro, 
who was his supervisor with the Office of Solid Waste tried to 
contact him as well. Since I did not do this piece directly, if 
I tell you anything that is not completely accurate, we are 
going to have to correct it for the record because I was not 
personally involved in moving the files. When the files were 
moved to us, Mr. Martin was part of our office. It was after 
the restraining order had been lifted and the move of the files 
that we had planned since early January then was actually 
taking place in April.
    Senator Specter. Were you aware that the files were to be 
removed?
    Ms. Tinsley. Yes.
    Senator Specter. Mr. Martin, did you hear from either Mr. 
Johnson or Mr. Shapiro that the files were to be removed?
    Mr. Martin. No, not at the time the restraining order was 
removed, no.
    Senator Specter. Did you hear about it at any time prior to 
the time the files were removed?
    Mr. Martin. I heard about it as I was returning to 
Washington. By that time, it had nearly been finished.
    Senator Specter. Ms. Tinsley, why has EPA moved to take Mr. 
Martin out of the position of Ombudsman and put him in another 
spot where he can no longer carry out the functions that he was 
exercising as Ombudsman on Marjol and these other locations?
    Ms. Tinsley. From my perspective, that is not what 
happened. He was just going to be part of our office and be 
part of the team that would resolve these cases I would hope 
more quickly than he was able to do by himself.
    Senator Specter. Are you testifying before this committee 
that it was your intention to make him part of your team and to 
leave him with the authority to continue to do what he had been 
doing?
    Ms. Tinsley. He was going to be part of our team. He would 
not have the authority to do everything, but we could apply 
more resources than he had in his office, and so we were 
hopeful that we could work with him as one of our lead people 
and respond to a lot of these cases at the same time, which I 
think was difficult for him to do with a staff of only three or 
four people.
    Senator Specter. So your testimony is that you were doing 
it to help him by giving him more resources, contrasted with 
setting up an arrangement which took him away from the 
authority he had as Ombudsman, to work on the files and to do 
what he wanted to do with Marjol, to have a Superfund site 
declared?
    Ms. Tinsley. Our intention as to do this to help the 
public, the people who had inquiries that were not being 
responded to as timely as they might be if there were more 
resources applied.
    Senator Specter. Has the public been responded to in a more 
timely manner since Mr. Martin has been replaced?
    Ms. Tinsley. Not as quickly as I had hoped. Since he 
resigned, he was not here to help us go through the files and 
determine what work was left to be done.
    Senator Specter. Ms. Tinsley, what did you expect him to do 
when you took away his authority as Ombudsman and when you went 
in a took the files out from under his control, with every 
objective observer understanding that you were moving him and 
cutting his authority out? Do you expect this committee to 
accept your explanation that you wanted to leave him in a 
position of power, but to help him carry out what he had 
intended and was trying to do?
    Ms. Tinsley. I do expect you to believe that. That was our 
intention and we thought we could set up a system where he 
could be successful and part of responding to the folks that he 
was working with on these investigations in a more timely 
manner.
    Senator Specter. Did you ask Mr. Martin to stay on?
    Ms. Tinsley. Mr. Martin would not talk with us. We tried to 
arrange meetings with him, but he refused to attend. Once he 
was on our staff, as soon as he was back in town, he resigned, 
so we did not ever have an opportunity to talk with him. Our 
intention was never to remove him from his files, it was to 
move the files to our office where he was going to be working.
    Senator Specter. Without notice to him. Mr. Martin, did Ms. 
Tinsley ever ask you to come in to talk?
    Mr. Martin. No, she did not.
    Senator Specter. Did anybody ask you to come in and talk, 
to stay on the job?
    Mr. Martin. Mr. Johnson communicated that he wanted to 
talk, by voice mail. I indicated in a reply that before doing 
so I wanted official paperwork showing that there had been a 
transfer and the nature of the transfer. That was not provided 
until weeks or a month after my resignation.
    Senator Specter. Ms. Tinsley, at this point you have a very 
heavy obligation to move to help the people of the Marjol 
community. The inference that I draw is that Mr. Martin was 
ousted because people did not like what they--the higher 
bureaucracy at EPA did not like what he was doing and that it 
was retribution. This is a long involved history. It is not 
just the taking of these papers, and not just failure to have a 
conversation with him when he was being removed. Ms. Tinsley, 
do you disagree with the conclusion of the GAO, ``The National 
Ombudsman will not be able to exercise independent control over 
the budget and staff resources needed to implement the 
function''? Do you think that is true or false?
    Ms. Tinsley. As an individual, the person does not control 
all the budget within the Office of Inspector General. We do 
that as an organization. The Ombudsman will be part of a team 
that has access to all the budget resources.
    Senator Specter. So you agree that it is true that it is 
the National Ombudsman, but you are saying the whole team can 
do it.
    Ms. Tinsley. Correct.
    Senator Specter. Would you agree or disagree with the 
General Accounting Office conclusion that the National 
Ombudsman, and these are my words, does not have, ``the 
authority to select and prioritize his or her own caseload, 
independent of all other needs''?
    Ms. Tinsley. The caseload prioritization is done as a part 
of the team as well, based on risk. I am not sure you were here 
earlier when we talked about this, but the highest ranking risk 
factors in the way we assign work have to do with threats to 
human health and the environment. The Ombudsman work that is 
open at this time meets that high criteria, and it is the kind 
of work that we all address immediately.
    Senator Specter. Since Mr. Martin has left, Ms. Tinsley, 
what has your team done specifically to solve the Marjol 
problem?
    Ms. Tinsley. OK. We have 16 boxes of files on Marjol and we 
have one of our senior auditors assigned to that. He is going 
through the information so that we can finish what work needs 
to be done. Without Mr. Martin, it was difficult for us because 
of the way the files were put together to even know the status 
on cases. So we have been working through that on our own.
    Senator Specter. You have one person assigned to review 
files in 16 boxes?
    Ms. Tinsley. We have eight people right now working on 130 
boxes. One person is working specifically on Marjol, as I 
understand it. Let me just see if I know how far along we are 
on that. We are about halfway through with the records that Mr. 
Martin had on Marjol.
    Senator Specter. When will you finish?
    Ms. Tinsley. We hope by the end of July.
    Senator Specter. When will you start to act to correct the 
Marjol problem?
    Ms. Tinsley. We would be able to get started immediately.
    Senator Specter. Now?
    Ms. Tinsley. As soon as that analysis is done. In my mind, 
we have started now because first we have to assess where we 
are before we can move forward. We would be happy to meet with 
your staff on this if they would like to provide us input, or 
anyone else you could direct us to. We are very anxious to 
respond to these open cases.
    Senator Specter. Well, what are you doing specifically 
besides a laborious task of reviewing files, which has been 
going on for a long, long time, to act to solve the problem at 
Marjol? Reviewing files is not very helpful unless you finish 
it, know what you are doing, and do something. When are you 
going to do something about the Marjol problem? When are you 
going to act to correct that gaping sore by treating Marjol as 
a Superfund site and correcting it?
    Ms. Tinsley. We will not be able to anything until we 
finish the file review and then we will get started. I am sorry 
I cannot tell you more, but without knowing the specifics of 
what went on at Marjol, it would be difficult for me to respond 
about what we need to do in the future.
    Senator Specter. Well, would you please make a 
determination of those specifics and let this committee know?
    Ms. Tinsley. Yes. We would be happy to do that.
    Senator Specter. My staff is not exactly in a position to 
direct the activities at Marjol, although it may be that my 
Executive Director in the area, Andy Wallace, could take over 
and do it. Perhaps we can find some constitutional way to do 
it, but we have been at it for 14 years, and I have not seen 
any matter in the many, many I have handled that leaves me with 
such dissatisfaction as this one does. I would be less than 
candid with you, Ms. Tinsley, if I said that I am totally 
unconvinced that you removed Mr. Martin or rearranged him to 
bring him in to give him more resources as part of your team. 
The inference is unmistakable by what Mr. Martin has done at 
Marjol and other places that he was in effect a hair shirt, 
that he was doing things the upper management in EPA, and for a 
long time--not just since Governor Whitman has been 
Administrator, through Democratic and Republican 
Administrations. Speaking for this Senator, I am going to try 
very hard to try some way to correct it, either through the 
confirmation process or the appropriation process. We are not 
going to let this matter stand.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you very much, Senator Specter.
    Let me go back to a series of questions. I would like to 
talk, to the extent we can get into it, just about where we go 
from here. In Senator Specter's questions and Ms. Tinsley's 
answers, it became very obvious that regardless of where one 
stands on what should have been done, how it should have been 
handled, we are at a point with regard to the Ombudsman's 
functions where we are trying to pick up speed, get back to 
where we can become effective again. We are not in an effective 
stage because we have so much file review to take care of, yet 
we have sitting right here in the room a person who has the 
institutional knowledge who created those files, who did all of 
the research and the work that generated the files that would 
give us the ability to move forward, and do so promptly in 
areas like Pennsylvania and Idaho and elsewhere.
    Mr. Martin, you indicated that--well, tell me first of all, 
if I understand correctly, in the litigation that was 
undertaken after the judge lifted the temporary restraining 
order and entered his order, the matter was referred to the 
Office of Special Counsel. Is that correct?
    Mr. Martin. That is correct.
    Senator Crapo. Can you tell me what happened at that point 
in the litigation? Maybe we could ask your attorney to advise 
us. Would you please state your name and association for the 
record?
    Mr. Devine. Thank you, Senator.
    My name is Tom Devine. I am the Legal Director of the 
Government Accountability Project.
    After Mr. Martin filed a Whistleblower Protection Act 
complaint of constructive discharge, the Office of Special 
Counsel asked if he would like to try to achieve a constructive 
resolution of the dispute through mediation. He thought hard 
about this, and decided that he would prefer that approach and 
proposed a resolution which would allow him to go back for a 
limited period to complete his work on the pending cases. 
Yesterday was the deadline for the Environmental Protection 
Agency to respond and inform the Office of Special Counsel if 
they wanted to participate. We have not heard from them.
    Senator Crapo. Ms. Tinsley, is that your understanding as 
well? Or are you involved in this?
    Ms. Tinsley. I am not familiar with that matter, nor am I 
involved in that. I do not know what was going on on that 
matter.
    Senator Crapo. OK, thank you.
    I am sorry, state your name again for me please? Your name 
again?
    Mr. Devine. Tom Devine.
    Senator Crapo. Devine. Mr. Devine, is it still Mr. Martin's 
position as you represent him that he would like to engage in 
the mediation?
    Mr. Devine. Do I still represent him?
    Senator Crapo. No. As his representative, is it your 
understanding that it is still his position that he would like 
to engage in mediation if possible?
    Mr. Devine. Oh, yes sir. Mr. Martin feels we can accomplish 
a lot more by letting him get back to work, rather than having 
a retaliation fight.
    Senator Crapo. I realize that we in the legislative branch 
are not in a position to try to dictate outcomes of litigation 
or of these types of Office of Special Counsel activities. It 
seems to me that one thing we are allowed to do is to encourage 
all parties to fully and fairly follow the law. Right now, we 
have a process in place under the law which at least opens the 
opportunity for mediation.
    It just seems to me that perhaps we could, within the 
boundaries within which we are supposed to stay in the 
legislative branch, at least encourage the parties to view the 
mediation opportunity as one here which would allow us to, at 
least with regard to a part of this issue, find some 
resolution--a part of this issue that is very important to 
Senators like myself in Idaho and I assume Senator Specter in 
Pennsylvania and others, who do not want to see all of the work 
that has gone on so far with regard to the generation of these 
files and the work that has been done in the areas where we 
have hoped to see some progress, go back to the starting point 
and have to start de novo or with new people reviewing files 
and so forth.
    So I guess I would just on my own behalf, and I would let 
Senator Specter say whether he agrees, encourage all of the 
parties to consider some way under the law to deal with each 
other fully and fairly to mediate this issue if possible.
    Senator Specter. Mr. Chairman, may I say that that is an 
excellent idea.
    Mr. Martin, would you be prepared to sit down with Ms. 
Tinsley and take her up on her representation that she wanted 
to give you additional resources and would like to have your 
expertise in solving the problem?
    Mr. Martin. Yes, so long as----
    Senator Specter. Ms. Tinsley, would you prepared to do 
that?
    Ms. Tinsley. We are not part of that negotiation, is what 
my counsel tells me. This is actually an action that the Agency 
is----
    Senator Specter. Well, I am not concerned about whether you 
are part of that process. What I am concerned about is how we 
solve the problem. I have heard you say that you really 
welcome--you wanted Mr. Martin to stay on and help you solve 
the problem and that you wanted to give him additional 
resources. I just asked him a question if he would be willing 
to sit down with you and try to work out an arrangement where 
he could stay and EPA could have the benefit of all the work he 
has done, and you would make a good-faith effort to let him 
carry forward duties as a part of a team. Would you be willing 
to sit down and talk to him about that?
    Ms. Tinsley. If that is within my authority to do, and the 
thing I do not know as I sit here is whether or not that is, 
because I do not know what went on between Mr. Martin and the 
Office of Special Counsel. So I apologize. I just do not know 
what I can----
    Senator Specter. Well, aside from what went on between Mr. 
Martin and the Special Counsel, you have a situation here where 
you have responsibility as Inspector General to do this job. 
You have taken over the Ombudsman's work. You have taken it 
over, as you have testified here, in a context of trying to 
give him additional resources and help. You have been stymied 
in your efforts because you do not have his expertise on those 
voluminous files.
    Now, I would like to see you work out an arrangement, if 
you are really serious and in good faith, where you would sit 
down and carry that out and try to work out with him an 
arrangement. I would assign Tom Dower who has worked on this 
matter for 7 years. Your way, you would like inputs from the 
staff, to sit and talk with you about it. Would you be willing 
to do that?
    Ms. Tinsley. I think we would be willing to meet with your 
staff member, and as I said, short of that, I just have to find 
out what I can do, what I really have the authority to do, 
because I do not want to promise you I can do something that I 
cannot do, but I will certainly look into it.
    Senator Specter. I do not want you to meet with the staff 
member. I want you to meet with Mr. Martin. You said you would 
like to have him back and to have his expertise help you. Well, 
he is prepared to do that. We are a couple of lawyers here. You 
are an attorney, right?
    Ms. Tinsley. No, I am not.
    Senator Specter. Well, you have that advantage then.
    [Laughter.]
    Senator Specter. Well, I know of no reason why you cannot 
sit down and talk to the man. You have said that you would like 
to have his help and he is willing to sit down and talk to you. 
I would like you to do that. OK?
    Ms. Tinsley. OK.
    Senator Crapo. Thank you.
    I would just like to get clarification on one matter. Ms. 
Tinsley, you indicated that you were not a part of the OSC 
mediation effort. Did you mean the Office of Inspector General 
was not, or that the EPA was not?
    Ms. Tinsley. I think that EPA is handling that. EPA, the 
Agency, not EPA the Office of Inspector General, and there is a 
cut between us on these kinds of things. My understanding is 
that the Agency's Office of General Counsel----
    Senator Crapo. Is the one that would be responding to the 
OSC?
    Ms. Tinsley. Yes.
    Senator Crapo. All right. Thank you.
    Well, I appreciate what I hope will be an opportunity to 
see if we cannot, at least with regard to these issues that are 
outstanding and where so much work has been done, figure out a 
way to move forward without a loss of Mr. Martin's expertise.
    Getting back to the legislation, let me just ask Mr. Wood. 
I told you I had a few questions for you. I am going to go to 
you now. I think I will get to each of the others of you on 
this question.
    One of the sets of input that was submitted to the 
committee in writing by an entity that is not going to be a 
witness today was written testimony by the U.S. Ombudsman 
Association. In their testimony, the Ombudsman Association 
suggested that there was a problem--that they are generally 
supportive of the legislation that we have proposed, but have 
made recommendations to improve it. Their single most 
significant recommendation was that they do not believe that 
the Ombudsman's Office, in order to obtain the independence 
that we want to achieve for the Ombudsman, they do not believe 
that the Ombudsman's Office should be in the EPA period, but 
instead that it should be, sort of as Mr. Martin said in his 
testimony, located outside the EPA, and in their testimony they 
say preferably in the legislative branch. Then they go on to 
say, perhaps by situating it in the GAO.
    Now, I am not necessarily asking you whether the GAO would 
be willing to undertake the Ombudsman's Office, in which case 
they would then directly report to Congress on these 
activities, but I want to ask you the broader question. Do you 
believe that the legislation would be improved or that, in an 
effort to obtain independence for the Ombudsman's Office, do 
you believe that it would be better for the Ombudsman in this 
situation to report directly to Congress rather than to the 
Administrator, as the legislation sets it up now?
    Mr. Wood. I think what is behind the comments that they 
made is, there is a model out there for Ombudsman that is 
largely derived from the State level, where there are some who 
report directly to legislatures.
    At the Federal level, what we found from our work in the 
report last year was there can be effective ombudsmen in the 
executive branch who report to the top of their agency. So I 
guess at first blush, I would have to say that I do not think 
that it would be necessary to put it in the legislative branch 
because there are models at the Federal level that seem to be 
working.
    Senator Crapo. What would happen if the Ombudsman were to 
undertake a care or reach findings and so forth which were 
problematic for the Administrator to whom he or she reports? 
Wouldn't that in a sense cast a cloud on their independence 
again?
    Mr. Wood. It could, although one of the things that I think 
your bill does not have right now that maybe it could have is 
specific provisions for the removal. In other words, the 
conditions that would have to be met before the Ombudsman could 
be removed. There might be legitimate reasons, but by 
specifying what those are, that might be one way to help 
promote independence.
    Senator Crapo. Thank you.
    Ms. Tinsley, I know you do not necessarily support 
transferring the Ombudsman's Office period to anything 
different than its current situation, but do you have an 
opinion you would like to register with regard to whether the 
legislation should be changed to move the Ombudsman's Office 
outside of the EPA entirely?
    Ms. Tinsley. Gee, I think GAO would be a great place for 
the Ombudsman.
    [Laughter.]
    Ms. Tinsley. My only concern is on the investigatory role 
which I think duplicates what IG's were created to do. GAO also 
has the authority to do the kinds of investigations, which are 
really review of agency programs similar to program 
evaluations. GAO has that authority now. So I think that right 
now there are two responsibilities for that. There is the IG 
who can do that work, and there is GAO, who reports directly to 
the Congress. The IGs report to both the Congress and the 
Agency head. So I could see that investigatory function sitting 
either place, and I think already both of us have that 
authority. So I do not know if you need to establish the 
authority a third time.
    Senator Crapo. All right, thank you.
    Mr. Martin, any thoughts on the issue?
    Mr. Martin. Congress.
    [Laughter.]
    Senator Crapo. We are running a little bit late. I have a 
lot of other questions, but I think at this point I am going to 
excuse this panel, and again I would like to thank you, Mr. 
Martin, for coming up out of order, but we appreciate all of 
you. This panel is excused. Thank you very much.
    We would like to call up panel No. 3 now--Ms. Danielle 
Brian, the executive director of the Project on Government 
Oversight; Ms. Katherine Zanetti, the facilitator for the 
Shoshone Natural Resources Coalition; Ms. Susan Shortz, the 
president of Halt Environmental Lead Pollution, or HELP.
    While the panel is coming up, let me personally welcome Ms. 
Zanetti who is from Idaho. We appreciate your coming here, and 
again I apologize for my being late and not being able to be 
here for the first part of the hearing. Kathy is very, very 
involved in the issues in Idaho, and we appreciate not only the 
attention over the years that you have given to it, but your 
ability to make the effort to get here today, Kathy. Thank you.
    I would like to ask each of you--I do not know exactly what 
was announced at the beginning, so I will re-give the 
instructions. We have these little lights here that try to help 
you keep your testimony to 5 minutes. We have all read or will 
all read your written testimony, which is submitted as a part 
of the record. We like to keep the verbal presentation to 5 
minutes each so that we can have as much give and take on 
questions and answers as possible. So I would just encourage 
you to try to keep your eye on that light system as you 
proceed.
    Ms. Brian.

  STATEMENT OF DANIELLE BRIAN, EXECUTIVE DIRECTOR, PROJECT ON 
                      GOVERNMENT OVERSIGHT

    Ms. Brian. Thank you, Senator.
    I am the executive director of the Project on Government 
Oversight, POGO, a politically independent, nonprofit watchdog 
that investigates, exposes and seeks to remedy systemic abuses 
of power, mismanagement and subservience by the Federal 
Government to powerful special interests. We strive to promote 
a government that is accountable to the citizenry.
    Thank you for asking me to testify on this issue and the 
brazen attempts spanning two Administrations of EPA management 
to weaken and ultimately destroy the EPA Ombudsman's Office. 
POGO first became aware of a problem when citizens from Lake 
Township, Ohio brought the Industrial Excess Landfill Superfund 
site to our attention more than 5 years ago. Because of various 
concerns regarding the EPA's decisions regarding their cleanup, 
citizens from the community attempted to gain an Ombudsman 
review. Their request was denied, not by the Ombudsman, but by 
the EPA itself. We got involved then, as their Congressman did, 
and it took almost an entire year to get the top EPA management 
to overturn their decision.
    The fact that the Ombudsman was not allowed to decide for 
himself whether or not the case was worthy was our first taste 
of EPA management's efforts to silence the Ombudsman. We 
decided to look at other EPA regions around the country to see 
if the problems at IEL were unique. Unfortunately, we found 
they were not. We learned about the Shattuck site in Denver, CO 
and the Brio site in Harris County, TX, among others. I would 
like to point out that, and Senator Allard talked about the 
Shattuck site, but in that case, there was approximately 8 
years of conflict prior to Ombudsman involvement, meaning the 
government, the community and the potentially responsible 
parties were at loggerheads and could make no progress.
    After the Ombudsman became involved, there became a more 
transparent process. His recommendations were so weighty that 
the EPA agreed to change their remedy, recognizing that they 
had implemented an improper remedy. In the Brio case in Texas, 
there had been conflict, again, for 4 or 5 years before the 
Ombudsman's involvement. After his investigation and report, 
again the EPA totally changed their remedy, now resolving 
really what the community considers the best remedy, the EPA 
has put it in place, and very hearteningly, the community, the 
PRPs and the government are working closely together now.
    My written testimony outlines a long history of efforts, 
despite this success, by EPA to squelch this Office. Despite 
these obstacles, the National Ombudsman Office has been 
remarkably effective at getting the EPA to review its decisions 
and correct its mistakes. Not only did the Ombudsman offer the 
communities successful resolutions to their particular 
troubles, he gave them reason to believe that sometimes the 
government can do the right thing. I find it remarkable that so 
much effort has gone into silencing the Ombudsman's Office, 
when this Office can only make recommendations. He never forced 
these changes. They were just so obviously right that the EPA 
acknowledged them and changed their position.
    We are here today because Senate 606 has been introduced to 
provide the Ombudsman's Office statutory authority. This step 
is absolutely essential, given EPA's history. The agencies 
reviewed by the GAO all have Inspectors General as well as 
Ombudsmen, although none of their Ombudsman's programs are in 
any way affiliated with the respective Inspector General's 
offices. The legislative history of the IG Act makes this 
clear, stating, ``Broad as it is, the IG mandate is not 
unlimited. Issues requiring substantive or technical expertise 
will often fall outside his proper sphere.''
    It is particularly important that the EPA have an 
independent Ombudsman's Office because of a regulation in the 
Superfund Act that prevents a remedy decision from being 
challenged until after the remedy has been implemented. In 
other words, the community has no recourse if they are 
concerned, other than the Ombudsman. The Ombudsman is the only 
recourse the communities have when they feel that their health 
and environment is not being adequately protected.
    Thirteen years ago, a Senate subcommittee of this full 
committee issued a bipartisan report which found that 
statistically the involvement of the PRPs led to cheaper 
remedies which did not necessarily protect health and safety. 
We are releasing today the results of our investigation into 
the EPA's handling of Superfund sites, and I ask that it be 
included into the record.
    Senator Crapo. Without objection.
    Ms. Brian. We concluded that because the EPA has come to 
rely so heavily on the PRPs to help develop the cleanup plan 
for sites, the system is skewed to favor the cheapest, but not 
necessarily the best remedy. Again, I think it is worth 
emphasizing, the Ombudsman's Office is the only place for 
communities to ensure that a thorough and adequate 
investigation of the site has taken place, and the best 
interests of the community have been considered.
    Senate 606 is essential for the independence of this 
critical function. However, we also believe that the provision 
to move the Ombudsman to the Administrator's Office will not 
work. POGO has determined that genuine independent oversight 
over policy cannot proceed from within the bureaucracy it 
evaluates. We would encourage the committee to consider placing 
a National Ombudsman Office in either a White House office, or 
as has been discussed, perhaps attached to the GAO in the 
legislative branch. We also believe the legislation should 
include whistleblower protections for those who come to the 
Ombudsman with information.
    I think it is worth mentioning that were the Whistleblower 
Protection Act Amendments, Senate 995, in effect today, Robert 
Martin would have had legal protection from the EPA's efforts 
to dismantle--well, success in dismantling his office simply 
because he did his job. I urge all the members of this 
committee who have not yet to become cosponsors of that 
important legislation.
    In the end, Bob Martin must be reinstated to finish his 
cases, both because his work is terribly important and because 
the government must not be party to such an injustice as 
squelching the sole voice working to get the truth out for the 
protection of communities in need.
    Thank you.
    Senator Crapo. Thank you very much, Ms. Brian.
    Ms. Zanetti.

 STATEMENT OF KATHERINE ZANETTI, FACILITATOR, SHOSHONE NATURAL 
                      RESOURCES COALITION

    Ms. Zanetti. Mr. Chairman, my name is Kathy Zanetti and I 
am a 49-year-old grandmother of four and a proud member of a 
fifth generation family from the historic Silver Valley of 
North Idaho. I would like to thank you for the opportunity to 
speak before this committee today on a topic that has dominated 
the attention of my community for over the last 2 years. I am 
honored to represent the citizens of the Silver Valley and to 
testify in support of Senate bill 606.
    I am the chairman for Shoshone Natural Resources Coalition, 
a nonprofit group of volunteer citizens who work and live in 
the Coeur d'Alene basin and are concerned about human health, 
environmental and economic issues. We are a grassroots 
organization made up of a very diverse group of individuals. 
SNRC represents business owners, school district officials, 
community leaders, local elected officials, and generations of 
Silver Valley families. Many of our members have been involved 
in EPA issues in the upper basin for 20-plus years.
    We are a community filled with an intense pride for our 
heritage, our families and most of all, our way of life--a way 
of life now held precariously in peril by the decisions of 
various Federal agencies. Although our approach and our 
opinions about cleanup in the Silver Valley may be different, 
we are united in the common need for a truly independent 
Ombudsman.
    The Environmental Protection Agency came to the Silver 
Valley in the early 1980's shortly after CERCLA or Superfund 
became law, to address specific cleanup at the Bunker Hill 
Smelter, and they have been there ever since. In almost the 
last 20-some years, the EPA has spent over $400 million in the 
Silver Valley and has not even completed the original scope of 
cleanup. EPA Region 10 deceived the public by first promising 
that the Superfund site in Kellogg would not extend beyond its 
initial 21-square-mile box. Yet they have unilaterally expanded 
the range of remediation to 1,500 square miles, crossing State 
lines, adding to the cost another $360 million, possibly as 
much as $1.3 billion, and creating the Nation's largest 
Superfund site, with little or no regard to the citizens or 
communities that have been involved and must endure these ever-
changing boundaries.
    Although there may have been a human health risk that 
warranted their presence at the time in the early 1980's, there 
is no medical or undisputed scientific evidence that one exists 
today. Yet today, after all the money and the billion-dollar 
expansion plans, EPA's own central impound area at the Bunker 
Hill Superfund site remains the largest point source 
contributor of metal into our watershed. It is our sincere wish 
to take care of any necessary cleanup that remains to be done 
in the upper basin, to get out from under the stigma of 
Superfund and on to rebuilding our lives, as well as the 
economic stability of our community.
    The Superfund actions around the Nation have taken on a 
life of their own, which holds communities such as mine in a 
never-ending state of limbo. It appears that Region 10 EPA in 
its dealings with the Coeur d'Alene basin of North Idaho has 
become a bureaucratic machine driven by personal agendas. After 
years of attending meetings, drafting comments and writing 
hundreds of letters, we realized that our voices had fallen on 
deaf ears. In reality, we were merely being counted as part of 
the Agency's number games. They hold meetings and workshops, 
but they did not seem to listen to the concerns of the 
communities involved.
    We have truly had no where else to turn until the Ombudsman 
stepped forward. The Office of the Ombudsman has answered the 
call of the Silver Valley, first under the Office of Solid 
Waste and Resource Management, where its authority was 
maintained by the very entity that it was investigating. 
Budgets and personnel were used to control Ombudsman activities 
and whose mail was often intercepted by EPA congressional 
affairs, all of which resulted in a total lack of independence. 
The United States Department of Justice even attempted to kill 
the investigation to protect its natural resource damage 
lawsuit.
    Second, at present under the Office of Inspector General, 
the Ombudsman is to assume duties other than those designated 
under Superfund, to take on an increased workload and basically 
cease to exist as an Office. It is now part of another 
bureaucracy within a larger bureaucracy.
    While we welcome the attempt to work with the IG's Office 
and will welcome them with open, but cautious armed to the 
Silver Valley, we feel that in the long term this situation 
cannot work. There must be a dedicated, independent Ombudsman. 
He serves as the only intermediary between EPA and citizens 
when things have gone terribly awry. This Office is the last 
resort and sometimes the only resort for the common citizens 
and common sense. The Office of the Ombudsman above all else 
requires independence so that it may work effectively with both 
sides to find reasonable and successful solutions that are 
environmentally sound and meeting the needs of communities 
everywhere.
    The Ombudsman's position is the people's court of last 
resort. Communities like the Silver Valley need an Ombudsman 
who not only can, but who must intervene on environmental 
health and safety issues on our behalf without having their 
hands tied, their actions influenced or censored by the 
controls of other agencies. Only the Ombudsman can answer our 
call to do the right thing. To be effective and of true service 
to the public, an ombudsman must be independent, accountable 
and unbiased. I believe Senate bill 606 achieves these 
objectives. Without S. 606, communities like mine have nowhere 
to turn when they have exhausted all hope of working 
constructively with the EPA. I, for one, refuse to continue to 
allow the Environmental Protection Agency to use my own tax 
dollars unchecked against either me or my family.
    Finally, in this great Nation our structure of government 
is set up with many forms of checks and balances, as we have 
heard today, so that citizens have a channel to express their 
concerns against abuse or capricious acts of public officials. 
The National Ombudsman Office is that channel and therefore 
should be able to work unimpeded to help achieve fair and 
reasonable checks and balances of the EPA.
    Thank you for the opportunity to testify this morning in 
front of this committee, and I urge you to please support 
Senate bill 606. I would ask that in conclusion, I could submit 
an additional written testimony from another group within our 
basin.
    Senator Crapo. Without objection, so ordered.
    Senator Crapo. Thank you, Ms. Zanetti.
    Ms. Shortz.

 STATEMENT OF SUSAN SHORTZ, PRESIDENT, HALT ENVIRONMENTAL LEAD 
                        POLLUTION (HELP)

    Ms. Shortz. Thank you, Mr. Chairman, and members of the 
committee for this opportunity to be able to speak to you 
today.
    I am from the small Borough of Throop. It is a small 
residential community with a population of slightly over 4,000. 
Our Marjol site which Senator Specter spoke about earlier is a 
former lead acid battery recycling facility located in this 
Borough. The 43.9-acre site is owned by Gould Electronics. 
There are approximately 65 residential homes within 500 feet 
and 25 of those homes are actually within 50 feet of the site. 
The Lackawanna River borders on the west.
    There are over 500,000 cubic yards of battery casings, 
along with other carcinogens, on this site. It would be enough, 
if was dug up, to fill 12 football fields 50 feet deep, to just 
give you an idea. There are also PCBs, PAHs, antimony and 
arsenic. There is also soil contamination that has taken place 
outside that site. In reality, this is an illegal, toxic, 
hazardous waste dump in the middle of a small town, without any 
permits, without any regulatory controls.
    Since 1987, there have been ongoing negotiations between 
EPA, Gould and our own Pennsylvania Department of Environmental 
Protection. Assistance teams came in from the EPA back in 1987 
and did testing on our properties. At that time, they told us 
that we would be made aware. It was not until 1988 and after we 
had made written request of the EPA to get the results of our 
own personal private properties that we were finally given that 
information and found out that we were the potential for a 
Superfund site.
    In April 1988, a CERCLA order was signed between EPA, DEP 
and Gould and the site remediation began. At that time, under 
the CERCLA, the emphasis was made on the residential properties 
because we were living in immediate harm. Our cleanup level is 
500 parts per million for lead, and yet a lot of States 
actually are now down to 200. We had in our homes levels in the 
thousands, and in our backyards in areas where our children 
played, levels well over 15,000.
    Through the Ombudsman's investigation, we found out that 
EPA and DEP were aware of this well into the early 1980's, and 
were negotiating back and forth with EPA all this time without 
making any of us aware of the conditions in which we were 
living.
    The citizens of our community have been fighting since that 
time to get our properties fully cleaned up in a manner that we 
feel is safe to protect our health and welfare. Gould, the 
owner of this site, has repeatedly said from the very beginning 
that they will only cap the site, and their only concern is the 
cost-effective cleanup. Although the Borough of Throop has 
actually spent over $1.5 million in order to prove that this 
EPA cap is not appropriate, no one has been willing to listen 
to us, not EPA or Gould, until now the Ombudsman and Chief 
Investigator Kaufman and the geologist Doug Bell came into our 
area.
    The first Ombudsman hearing took place in August of 2000 
and the results were amazing. We found out that there are over 
240 potentially responsible parties in this site, including the 
Federal Government, not just Gould. We also found out that 
Gould received millions of dollars, not only from lawsuits 
against these potentially responsible parties, but also in 
liability claims against insurance that they had and other 
sources. We further learned that specifics of a secret 
amendment to the consent order which changed the requirement 
from a temporary storage of soil on the property that had been 
removed from our residential properties and stored onsite, to 
permanent entombment.
    The geologist, Doug Bell, his discussions with our 
engineering consultants finally put some credence to the 
concerns we had that this site is in fact undermined from deep 
anthracite mining, has the potential for mine fires, and it 
also has ongoing subsidence occurring there.
    When the Ombudsman came in, our decision was placed on 
hold. After that hearing, a couple months later we were called 
to Philadelphia to speak with the EPA Region 3 Administrator, 
who at that time was Bradley Campbell. He listened to our 
concerns and he assured us that he would wait for the 
recommendations of the Ombudsman before they came up with their 
final decision. However, within a very short couple of months, 
suddenly the final decision came out. Not only were we 
dissatisfied with the final decision, but it was greatly 
different from the initial proposal. In the initial proposal, 
they were at least going to remove approximately one-third of 
the contaminants, and they were going to some site 
stabilization, and then a cap. Under the final decision that 
came out, there was no guarantee of any removal, only what as 
they put it would not fit under the cap. They would no longer 
solidify anything on the site. They would simply put a cap on 
top, and that was the end.
    The Ombudsman through his investigations has continued to 
find problems with that decision, and has repeatedly brought to 
our attention the fact that we could still even be on an NPL 
listing, which EPA over the years has denied us that ability to 
do. They have constantly told us that we cannot fit there. They 
are hiding always behind sound science. Several years ago as we 
started this process, the term used to be the state-of-the-art 
cleanups and state-of-the-art landfills et cetera. Now we are 
``sound science.'' Yet, sound science allows 250,000 parts per 
million of lead, PCBs, PAHs to be abandoned in the middle of a 
residential community adjacent to a river, on top of mine 
subsidence, on top of a potential mine fire, with nothing more 
than a cap. They have told us that operation and maintenance 
will maintain the safety of our community.
    Senator Clinton is right when she said about the 
complexities of being involved in a site such as ours, after 
almost 20 years of involvement, if you are concerned, you learn 
an awful lot about these types of issues. This expertise has 
come from listening, from reviewing et cetera. Even then, they 
would not listen to our concerns. We came back with our own 
people that gave us expert advice on this. Then we had the 
Ombudsman come in and again the doors have been closed.
    Since this investigation began, the Ombudsman's Office has 
now been effectively eliminated, as far as we are concerned. We 
have heard nothing more on our sites. Tinsley earlier today in 
the testimony said that they are willing to work and sit down 
and go over this information and start again from scratch. We 
have been through several Administration changes. We have been 
through five project managers alone on our site. We have been 
through numerous congressional changes. We have started from 
scratch over and over and over again, and hit a wall every 
single time that we have come along.
    I ask that the Senate bill 606 be strongly considered. I 
ask that the discussions earlier about bringing Mr. Martin back 
on the job, so that he could at least continue with these that 
are in progress, so that we could finally get closure. 
Unfortunately, a lot of the people that have been involved in 
1987 are no longer with our site. They have all been deceased. 
There are very few of us that are still here that are fighting, 
but those of us that are and the town that I live in want 
closure, and we want closure that our families and our future 
generations can live with.
    I thank you for this opportunity.
    Senator Crapo. Thank you very much, Ms. Shortz.
    I would like to thank each member of the panel for your 
preparation and for the effort that you went through to be 
here. I know that it is not an easy thing to prepare for, and 
then make the personal and financial commitments to get to a 
congressional hearing and to share the information that you 
share. So I do want to thank you all for that.
    I do have a number of questions for you, and I would like 
to go through these questions with each of you in the sense 
that I will ask the question and then each of you can take an 
opportunity to respond if you would like to.
    I assume from the nature of your testimony the answers to 
some of these questions, but I want to be very explicit about 
it. One of the issues, in fact one of the central issues around 
Senate bill 606 is whether the Ombudsman's Office should be 
reauthorized and we should move forward with it. I assume that 
each of you would support the reauthorization of the 
Ombudsman's Office. Am I correct?
    Ms. Brian. Absolutely.
    Ms. Zanetti. Absolutely.
    Senator Crapo. Some of you, or one or more of you have 
answered this question already, but I would like you each to 
elaborate on it a little bit. As you know from the previous 
questions we have had, one of the issues relating to the bill 
that has been raised is whether the Ombudsman's office, when we 
reauthorize it, should be located within the EPA itself, which 
would then, as the bill has it, have the Ombudsman reporting to 
the Administrator of the EPA, or whether the Ombudsman's Office 
should be located in some other place, like the legislative 
branch of Government under the GAO or somewhere like that, or 
reporting directly to the President in the executive branch, or 
something like that.
    I would just like to hear what each of you think about that 
in a little more detail, both in terms of whether it is 
adequate for the Ombudsman to be reporting directly to the 
Administrator, and if not, whether it should be somewhere else, 
and then if you do have an opinion on where that somewhere else 
should be.
    Ms. Brian?
    Ms. Brian. Yes, Senator, I do strongly believe that this 
Office needs to move outside the Agency. That comes in part 
because of being students of Federal agencies generally--we are 
finding that genuine oversight on policy matters, rather than 
the kinds of work that Inspectors General are intended to do, 
is very difficult to do from within an agency. Specifically 
with regard to the EPA Ombudsman's Office, as I mentioned, we 
have been battling efforts since the late, well for 6 or 7 
years over two Administrations of EPA Administrators, trying to 
whittle away the efforts of this Office to maintain its 
independence.
    So I am absolutely certain that it would be a mistake for 
us to have that Office report to the Administrator because by 
the nature of the kind of work he does, it is raising questions 
about the wisdom of the decisions that have been made in the 
name of the Administrator.
    Senator Crapo. Thank you.
    Ms. Zanetti?
    Ms. Zanetti. In our area, Senator, we were unaware that 
there were even any regional ombudsmen. In the years that SNRC 
has been involved in the activities up there, we have never yet 
seen a Regional Ombudsman. So I believe that the bill should in 
fact, if anything, remove him from underneath any 
Administration office and become a stand-alone office on his 
own. Therefore, he could direct his own Regional Ombudsman 
without them being under any undue influence from the 
respective Region Administration.
    I believe that to gain true independence for his office, he 
would need to answer directly to Congress.
    Thank you.
    Senator Crapo. Thank you.
    Ms. Shortz?
    Ms. Shortz. I also agree that it needs to be removed from 
the EPA agency. Just to cite two examples that occurred 
recently in our process, last year through Senator Specter, 
Senator Santorum and Congressman Sherwood, we had arranged a 
meeting for some of our citizens to come down and speak with 
them about our concerns on this ongoing investigation. 
Administrator Whitman was supposed to be present at that 
particular meeting. In the process of setting up the meeting, 
we had specified that we would like Mr. Martin and Mr. Kaufman 
present at the meeting so that we could discuss specifically 
our investigation. As late as the afternoon before our trip 
down with all of our plans made and with all of our information 
gathered and together, the meeting was canceled. I feel 
strongly the meeting was canceled because or our insistence of 
wanting the Ombudsman there. That was not her plan for that 
meeting.
    Then later on through a lot of letters from the Congressman 
and the Senators on the ongoing investigation and what we felt 
was hindrance and interference, we were given assurances by EPA 
that they were going to be fully supportive, and were going to 
give him an office there, and then they brought that to Mr. 
Martin's attention. They kind of kept pushing that issue, and 
then ultimately they pulled back and said that, well, they were 
offering help to Mr. Martin and he was refusing the help. They 
did not acknowledge the reason for that refusal.
    So I feel as long as the Ombudsman is under the EPA, it is 
going to be difficult because you are in fact investigating the 
very people that write your approvals and give you your money 
and do your performance appraisals et cetera. I think it is an 
absolute conflict of interest. So I would like to see it 
outside.
    Senator Crapo. Thank you. You have raised an issue, Ms. 
Shortz, that each of the others have also testified to to some 
extent, but I want to go back through it briefly. That is, if I 
can re-state what I understood you to be saying, and ask that 
you concur with it. In your opinion, as you have observed the 
operations of the EPA and the operations of the Ombudsman in 
your particular case in Pennsylvania, am I correct in assuming 
that it is your opinion that there have been efforts by the EPA 
to interfere with the Ombudsman's operations.
    Ms. Shortz. I feel absolutely in our case there has been, 
and from what I have read and communicated with other sites, I 
have no doubt that that is occurring. I find on our site, EPA 
has definitely been more pro the polluter than it has been the 
citizens and the environment that they are actually supposed to 
be protecting. We find it very disappointing, right from hiding 
information from you, making it difficult to retrieve 
information. They consistently, well even as late as now in 
April, we had a second Ombudsman hearing. EPA did not even 
attend the hearing. They refused to come because their mind was 
made up.
    When our decision was put on hold after the Ombudsman got 
involved, they continued to try and set up meetings with the 
polluter to continue working on the work plan for the cleanup. 
So this interference goes on and on and on. As I said, even the 
Inspector General's Office in our particular site was involved, 
which is where he now is supposed to be housed. They also were 
interfering. They were also working against us in getting a 
complete investigation, and to get information out that we are 
entitled to. We are the ones that are living there, not the 
people in the EPA.
    Senator Crapo. Thank you.
    Ms. Zanetti, do you have a similar observation or any 
observation on the issue of from what you have seen in Idaho 
with regard to whether you perceive that there is a conflict or 
an effort by the EPA to interfere with the Ombudsman's 
operations?
    Ms. Zanetti. Yes, Mr. Chairman, I believe there has 
definitely been a conflict of interest with the EPA trying to 
interfere with the Ombudsman investigation. We have tried many 
times over in Region 10 to work with the EPA. Time and time 
again, they have just simply not listened to us. It was not 
until the Ombudsman came to our community that he saw through 
the pages of documentation that I believe I am on the opposite 
end of the spectrum here. These people are crying for EPA 
intervention, and we are crying for them to wrap up the 21-
square-mile box and remove themselves from our area. That is 
something that the Ombudsman actually saw through. He looked 
through the reams and reams and rooms full of documentation to 
the people in the community. He got to know us, our concerns 
and our overall genuine good health, of not only generations 
past, but the generations that were coming up. He saw through 
that. He saw to us, and he in fact was beginning those reports 
to EPA and he has been fraught with nothing but backlashes ever 
since.
    Senator Crapo. Thank you.
    I think that is an indication of a good Ombudsman, namely 
one who you cannot predict whether they are going to come down 
on this philosophical point of view or that philosophical point 
of view, but instead someone who is going to look at the facts 
and find out whether there is a basis there.
    Ms. Brian?
    Ms. Brian. Yes, Senator, and I wanted to agree with what 
Ms. Zanetti was saying. I think one of the centrally important 
parts of the credibility of his Office has been that the Office 
is not an environmental office. Their goal is not to be an 
environmentalist, to have a particular agenda. They come, they 
get all the facts out in the public and they come to the 
appropriate resolution. That is how, I think, you end up having 
communities and PRPs and the government all sort of coming 
together for the first time.
    A specific example, as you are asking after our initial 
involvement, which I thought was fairly direct intervention 
where the EPA just said no, he cannot take the case----
    Senator Crapo. That would be intervention, I would say.
    Ms. Brian [continuing]. Was later in November 1998. I wrote 
to the EPA Administrator at the time asking for a public 
process and working group to be initiated to develop 
recommendations for improving the independence of the Office. 
My suggestion was that that effort include representatives of 
the U.S. Ombudsman Association, the environmental community, 
labor, industry, good government, public interest groups, the 
EPA, the Ombudsman's Office, members of affected communities--
anyone who was a stakeholder in the issue. The response from 
the Administrator's Office was they believed, well, she said, 
``I do not find that such a review as depicted in your letter 
is necessary.''
    Shortly after that, however, while they believed that a 
public review was not necessary, they created a covert review 
internal to the EPA which was promptly convened. They actually 
said that the purpose was to review the Ombudsman problem. Who 
was it a problem for, other than EPA management?
    Senator Crapo. Good point.
    I think we have covered the question of whether the members 
of the panel agree that we should have independence and what 
your opinions are with regard to moving the Office of the 
Ombudsman outside the EPA entirely. Ms. Zanetti in one of her 
answers raised the question of Regional Ombudsmen, and I 
believe what she indicated was they had not heard from the 
Regional Ombudsman until the National Ombudsman got involved. I 
would like to know from Ms. Brian and Ms. Shortz what your 
experience with Regional Ombudsmen has been, and if you want to 
toss in anything else, Ms. Zanetti, you are welcome.
    Ms. Brian?
    Ms. Brian. I think that is a tremendous misnomer because 
the Regional Ombudsman, although because of certain 
circumstances I understand they are trying to change that, for 
the most part they have been part-time ombudsmen. So part of 
the time they are supposed to be independent and reviewing all 
the evidence and coming to independent conclusions. The rest of 
the time, they go back to their jobs working for the people 
whose decisions they are evaluating. That is so clearly not in 
keeping with what an ombudsman can be. Why would a community in 
any way, or a PRP for that matter, trust this person's being 
independent?
    Senator Crapo. Good point. Did you have any involvement of 
the Regional Ombudsman in your region?
    Ms. Brian. In the Region, no. I am actually not from a 
community. We are from a public interest group in Washington.
    Senator Crapo. That is true.
    Ms. Brian. In the communities that we have reviewed, the 
Regional Ombudsmen have never had any significant involvement 
at all.
    Senator Crapo. Ms. Shortz?
    Ms. Shortz. That is a similar experience to ours. Actually, 
how we found out about the National Ombudsman was a former 
councilmember of my community had retired in Florida, and he 
still gets the local papers and follows what our process has 
been all these years. He had sent me a newspaper article about 
Mr. Martin's involvement in the Tarpon Springs site in Florida. 
He said, ``Gee, this guy looks like maybe he can help you.''
    So through our Senators and our Congressmen, we found out 
how to contact him. Senator Specter sent a letter requesting 
him to review our case, and he came on board. Up until that 
time, I did not even know there was this function. When Mr. 
Martin came into our community for the first hearing, EPA 
brought with them our Regional Ombudsman, and that was the 
first time I ever knew he existed or met him. He simply sat at 
the table between the EPA officials, never opened his mouth, 
never said a word, and I have never seen or heard from him 
since.
    So I really do not even know what his function is in our 
Region. He has not given any input for or against. He has not 
communicated with us at all. It is only Mr. Martin that has 
tirelessly continued to try and help us through this.
    Senator Crapo. Thank you.
    Any more that you want to say on that, Ms. Zanetti?
    Ms. Zanetti. I think it is obvious, Senator, that because 
they sit within the Regional Office, there are undue influences 
put on their position and their abilities, and how can they be 
of help to communities, again, if they do not get involved, as 
we all agree?
    In truth, I was unaware that there was a Regional 
Ombudsman. In all the times that we have had the interactions 
with the Agency, most of them controversial to say the least, 
their own public survey will let you know that in our area they 
are not very well approved, let's say. Until the National 
Ombudsman came, we had no recourse. There was no one that truly 
listened to our side of the story, so to speak.
    Senator Crapo. Thank you.
    One proposal that has been made, and in fact our 
legislation does make a stab at this by trying to bring the 
Regional Ombudsman under the National Ombudsman, and we did 
that in the context of it all being still within the Agency, 
although we are now evaluating this question of whether the 
Ombudsman should be moved entirely outside the Agency. I am 
interested if any of you have any opinion as to whether we 
should have a National Ombudsman system, rather than just one 
Ombudsman, but one under which we have the 10 Regional 
Ombudsmen functioning and responsible solely to the National 
Ombudsman.
    Ms. Brian. That would be a dramatic change in the current 
system, and I think that would be a very wise one. As we know, 
there are too many issues for the tiny Ombudsman Office to 
handle by itself. I think if they had people in the region who 
were reporting to them and assisting them, that would be a 
great improvement.
    Senator Crapo. Ms. Zanetti?
    Ms. Zanetti. I agree that if the Regional Ombudsman were 
under the authority of the National Ombudsman and only his 
authority and would have no prejudice from any other agencies, 
that they could probably be of great assistance to him as well.
    Senator Crapo. Ms. Shortz?
    Ms. Shortz. I agree with Ms. Zanetti and Ms. Brian. In our 
current site, the people that we are primarily involved with 
are Mr. Martin, Mr. Kaufman and Mr. Bell. We were only one of 
numerous sites all over the United States that they are 
involved in. It certainly is a mind-boggling task to try and 
bring in this information, filter through it, and act on it, 
and have hearings et cetera. So I definitely think they need 
more help, and the Regional Ombudsman is I think a good method 
in which to do that. Again, they need to be totally answerable 
to the Ombudsman. I would think the current system of being 
part-time EPA workers and part-time Ombudsmen would have to be 
negated.
    Senator Crapo. I definitely agree.
    All right. I was just checking to be sure there were not 
any more issues that we wanted to cover thoroughly at this 
time. Again, I apologize to everybody for the lateness of the 
hearing. We have had a lot of interruptions today. It has been 
a long hearing, but it has been also a very interesting and I 
think productive hearing.
    I want to again thank this panel, as well as the other 
panelists for the time and effort that they have put into 
making themselves available to us. We are going to leave the 
record open for additional testimony and followup questions 
until July 15. Not only may panelists, but others who would 
like to submit information for the record are welcome to do so. 
We appreciate your prompt response.
    If the members of the committee have any additional 
questions, we are going to send them to you as well, so you are 
not totally off the hook until July 15. If you do receive 
additional questions from us, we would appreciate your prompt 
attention to and response to those questions.
    Again, this is a very critical issue and I think the 
testimony today has shown that it is not necessarily a 
philosophical issue. You see Senators here from all sides of 
the political aisle, the political spectrum. You see witnesses 
here from all sides of the issue spectrum. The issue here as I 
see it is truly one that is not partisan and not issue-oriented 
in terms of environmental policy one way or the other. It is a 
question of how we should manage our Ombudsman's functions in 
this Nation.
    We appreciate the strong interest that has been shown in 
this, and I am very hopeful that this strong interest and the 
testimony that has been provided today is going to give us the 
momentum to move forward to a markup. I think we have some good 
ideas to improve the legislation, and hopefully we will be able 
to see some prompt action here in Congress.
    I also hope that we are going to see some prompt action 
between the parties at the EPA and with Mr. Martin and the 
Ombudsman's Office so that we can hopefully resolve some of the 
other issues beyond just the global policy of how we should 
structure the Ombudsman's Office, but deal with the question of 
how we are going to resolve investigations that were already 
underway when this took place.
    So again with that, let me thank everybody for your 
attendance, and this committee is adjourned.
    [Whereupon at 12:08 p.m., the committee was adjourned, to 
reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]
Statement of Hon. Wayne Allard, U.S. Senator from the State of Colorado
    Mr. Chairman, thank you for holding this hearing and for offering 
me the opportunity to testify on behalf of S. 606. As you know, this 
legislation would reauthorize the Office of the Ombudsman of the 
Environmental Protection Agency.
    I'd like to keep my remarks brief, but I want to share with the 
Committee my reasoning on, and interest in, this issue. I introduced 
this legislation in the 105th Congress because of an ongoing battle 
between the citizens of a Denver neighborhood and the EPA concerning 
the Shattuck Superfund site. The Ombudsman's office was instrumental in 
bringing the truth of what was happening in this case to light. The 
legislation was reintroduced, by Senator Crapo, at the beginning of the 
current Congress because the issue of the Office of the EPA Ombudsman 
is still an important one.
    I would like to share with you, quickly, the story surrounding the 
Shattuck site in the Overland Park neighborhood in southwest Denver and 
what the EPA did there. These events have had a lasting impact, not 
only on the residents of the Overland Park neighborhood, but on each of 
us who looks to the EPA to be the guardian of our nation's 
environmental health and safety. In 1997, after several years of EPA 
stonewalling, the residents of Overland Park in Denver brought their 
concerns about a Superfund site in their neighborhood and their 
frustrations with the EPA to my attention. I learned that the 
neighborhood had run into a wall of bureaucracy that was unresponsive 
to the very public it is charged with protecting and I requested the 
Ombudsman's intervention. In early 1999, the Ombudsman's office began 
an investigation and quickly determined that the claims made by 
residents were not only meritorious, but that EPA officials had engaged 
in an effort to keep documents hidden from the public, thereby placing 
their health in danger.
    Without the Ombudsman's investigation on Shattuck, the residents of 
Overland Park would have never learned the truth. The Ombudsman's 
investigation brought integrity back into the process. Without the 
Ombudsman's work, a trusted Federal agency would have been able to 
successfully hide the truth from the very people it is charged to 
protect. The Shattuck issue is a decade long example of why citizens' 
trust in their government has waned. This bill will preserve an 
important mechanism within the EPA that the public can trust to protect 
their health and safety.
    The Shattuck story was a frustrating and often disheartening 
experience for all involved. It is an example of what can happen when a 
government entity goes unchecked. For the residents of Denver, the 
Office of Ombudsman offered the opportunity to get to the truth and 
made the health and safety of the public top priority.
    Let me make it clear that the main priority in my continued support 
of this bill, is to keep the Office of the EPA Ombudsman open for 
business and capable of conducting it. In the future, they may find 
themselves in a situation similar to the one that residents of Denver 
experienced. I want to know that they will have every assurance that 
the public's safety will be protected, that its voice will be heard, 
that its questions will be answered and that its concerns addressed.
    This office should not have its investigative ability restricted, 
and its independence should not be compromised. The EPA's actions and 
decisions in future cases like Shattuck, should not go unchecked and 
citizens in other States should have a public avenue to address 
concerns and get answers from the EPA. I know that I am not alone in my 
concerns and, unfortunately, that the Shattuck case is not unique. Many 
of my fellow Senators and Representatives have experienced similar 
concerns over sites in their States. That is why this legislation 
remains so important.
    I appreciate the efforts that have been made by the current 
administration in an attempt to solve some of the problems that the 
Office of the Ombudsman has experienced. I know that Administrator 
Whitman shares my desire to see this issue to a conclusion that will be 
beneficial to all and I appreciate her willingness to work with my 
office. Again, Mr. Chairman, thank you for holding this hearing and 
your willingness to look further into this matter.
    Thank you, Mr. Chairman.

                               __________
    Statement of Hon. Jerrold Nadler, U.S. Representative from the 
                           State of New York

    Thank you, Chairman Jeffords. I would like to thank you and the 
rest of the committee for holding this hearing today, and for inviting 
me to testify, regarding the EPA Hazardous Waste Ombudsman, and in 
particular, the role of the Ombudsman in investigating the response of 
the EPA to the September 11th terrorist attack in New York. My 
colleague, Senator Clinton, has been an outspoken advocate and knows 
all too well the problems citizens in New York have been encountering 
over the past 9 months. Thank you, Senator Clinton for arranging for 
the Field Hearing in New York back in February, and thank you Chairman 
Jeffords, for the committee's continued oversight of EPA by examining 
this issue today.
    As the Congressman representing Ground Zero, I thank you for the 
opportunity to share the very positive experience of my constituents 
with the EPA Hazardous Waste Ombudsman during the cleanup of the World 
Trade Center. Fortunately, for the majority of us in Congress, we have 
not needed to know about the EPA Ombudsman. Those of us who have had 
the need have similar stories to share; on the one hand, an agency that 
seems to ignore the community's concerns and on the other an Ombudsman 
willing to listen and investigate complaints about agency neglect. 
Ultimately, in a vast majority of the EPA Ombudsman cases, the 
transparent Ombudsman process has helped the Administrator, or regional 
officials, take proper action to resolve the disputes, resulting in 
greater protection from radioactive and other hazardous waste threats. 
Both Democrats and Republicans alike have utilized the EPA Ombudsman to 
help restore trust in government where it had previously been shaken.
    In 1972, Justice Douglas identified the problem that so often 
plagues much of the Federal Government:

          ``The Federal agencies of which I speak are not venal or 
        corrupt. But they are notoriously under the control of powerful 
        interests who manipulate them through advisory committees, or 
        friendly working relations, or who have that natural affinity 
        with the agency which in time develops between the regulator 
        and the regulated.''

    (Sierra Club v. Morton, 92 U.S. 1361, 1371 (1972)).
    This quote by Justice Douglas is as relevant today as it was thirty 
years ago. Indeed, this is why the EPA Ombudsman was created by 
Congress in 1984 when then-Congresswoman Barbara Mikulski faced an 
unresponsive Environmental Protection Agency. As the numerous cases 
that were in progress by Ombudsman Martin indicate, the need for an 
independent EPA Ombudsman is just as critical today as when the office 
was first created.
    Today, I am here to share first-hand knowledge of events that 
transpired in New York following September 11th. The World Trade Center 
case highlights how imperative it is that there be an independent and 
effective Ombudsman at EPA.
    Immediately following September 11th, I formed the Ground Zero 
Elected Officials Task Force, of which Senator Clinton is a member, to 
coordinate the efforts of all the government representatives from the 
area. The main goal of the Task Force is to assess the needs of the 
community in Lower Manhattan, and to ensure that those needs are 
addressed by the appropriate government agencies. One area that clearly 
was not addressed was the presence of hazardous waste in people's 
homes, schools and businesses. In the days following the attack, the 
Task Force heard countless complaints from citizens who suffered from 
adverse health effects, and/or lacked the resources necessary to test 
and clean their apartments and buildings properly. When EPA was 
presented with such information, the agency either maintained that 
everything was safe, or claimed that the city of New York was in charge 
of indoor environments and that EPA had no authority for indoor 
environments. The agency maintained this position even after being 
presented with independent test results, conducted by long-time EPA 
contractors, which showed elevated levels of hazardous materials inside 
downtown apartments.
    This situation made it very difficult to quickly and effectively 
address the mounting casework from constituents who literally had 
nowhere to go to get hazardous waste out of their homes. Citizens were 
left to fend for themselves, often ended up in court proceedings 
against their landlords and building owners, and expended vast 
resources on a cleanup downtown that was not conducted adequately or 
systematically, but rather on an ad-hoc basis.
    After 4 months of this untenable situation, I asked the EPA 
National Hazardous Waste Ombudsman, Robert Martin, and his Chief 
Investigator, Hugh Kaufman, to investigate. Their involvement produced 
a sea change in the relationship of my office, as well as of local 
residents, with EPA. My position has always been that EPA should use 
its existing authority to take any and all actions necessary to find 
out where hazardous materials went following the collapse of the World 
Trade Center, and to remediate contaminated spaces, and that New York 
should not be treated differently than other parts of the country where 
the EPA has engaged in response activities. Ombudsman Martin and Mr. 
Kaufman were able to tell us what the EPA should have done, could have 
done, and has done at other hazardous waste sites around the country. 
But most importantly, the Ombudsman process provided a forum to 
communicate with my constituents, listen to their complaints and 
concerns, issue requests for the production of documents and 
interrogatories, hold public hearings, bring in experts from around the 
country to help the citizens understand the full magnitude of the 
issues, make recommendations for corrective action, and truly get to 
the bottom of what EPA did and did not do.
    The key to all of this is that it was a public and transparent 
process. We held two eleven-hour hearings that were open to the public, 
documented with a court reporter, the transcripts of which are 
available to anyone. We heard from residents, workers, business owners, 
city and State elected officials, firefighters, police officers, 
parents, and the NYC Board of Education. We would have liked to hear 
from the government agencies, in particular EPA, but they declined our 
invitation to participate.
    Except for the Ombudsman, the EPA has yet to engage in a public and 
transparent process regarding the cleanup of the World Trade Center. If 
anything, it has done just the opposite. Questions have gone 
unanswered, information was obtained only through FOIA, if at all, and 
trying to get the agency to act has been a lengthy, arduous, and often 
unsuccessful process. The Ombudsman process was essential to address 
citizen complaints, and focus public pressure on the agency to resolve 
those complaints.
    In the 4 months from September 11th to January, the EPA maintained 
that everything was safe, directed people to the city government for 
relief (a government which offered no relief to people other than to 
tell them to clean up asbestos-laden dust with a wet mop and wet rag), 
and ultimately remained unresponsive to citizens. In the 4-months from 
January to May, the time of the Ombudsman process, EPA reversed its 
policy and agreed to initiate remediation inside people's homes. Of 
course, there were many factors that contributed to this policy shift, 
but I do not believe it would have happened, or happened so quickly, 
without the Ombudsman process, and the expertise and hard work of Mr. 
Martin, his Chief Investigator Hugh Kaufman, and the people who worked 
with them to use the Ombudsman process so effectively.
    The EPA is finally beginning a cleanup plan, largely because of 
pressure generated by the Ombudsman. Unfortunately, there is now no 
real Ombudsman to keep a watchful eye on the agency. This is 
disconcerting because the EPA cleanup plan is woefully inadequate. For 
example, the EPA plans to clean apartments only on request. This 
ignores the threat of cross-and recontamination from uncleaned 
apartments and from building HVAC systems. The EPA plan provides for 
testing only for asbestos in the air and does not plan to assess dust 
or hard surfaces that are also pathways of exposure. Nor will the 
agency test for any of the other contaminants that were present in 
World Trade Center debris such as lead, mercury, dioxin and fine 
particulate matter. The cleanup plan is available only south of an 
arbitrary boundary at Canal Street, cutting off other areas covered by 
the debris cloud, including parts of Brooklyn, Chinatown and the Lower 
East Side. Besides not dealing with many potentially contaminated 
areas, this presents an environmental justice problem. The workers will 
not be wearing protective gear, which would seem to be a clear 
violation of OSHA regulations. The EPA has developed this plan without 
public comment, and has not established a Citizens Advisory Group or 
held public meetings. It has not even established an Administrative 
Record accessible to the public.
    Quite frankly, the EPA has provided no evidence that the cleanup 
plan for World Trade Center debris complies with applicable laws and 
regulations, such as the National Contingency Plan and OSHA 
regulations, and there is no guarantee that EPA will act in accordance 
with existing laws, policies and procedures. The agency must be forced 
into a public and transparent process. The people of New York deserve 
and need an experienced, strong and independent Hazardous Waste 
Ombudsman at EPA now more than ever.
    Unfortunately, what has happened to the Ombudsman is just the 
opposite. By placing the Ombudsman in the Office of Inspector General, 
the position has been stripped of its independence, transparency and 
effectiveness. In July 2001, the House Commerce Committee requested 
that the GAO investigate EPA management's efforts to interfere with the 
EPA Ombudsman's ability to perform his job. Two critical 
recommendations were made by the GAO. First, the GAO recommended that 
EPA should provide the Ombudsman with a separate budget and, subject to 
applicable Civil Service Requirements, the authority to hire, fire and 
supervise his own staff. Second, the GAO recommended that the EPA 
Ombudsman be given more structural independence. By moving the 
Ombudsman to the Office of Inspector General, and stripping away his 
position description, the EPA has done exactly the opposite. The 
necessary procedures that legally must be followed in operating an 
Inspector General's office are inconsistent with the procedures 
necessary for an independent, transparent Ombudsman function. For 
example, employee protection provisions and openness of operation must 
be very different in an Inspector General's office because it is part 
of a law enforcement function, whereas an Ombudsman must be more open 
to the public and, at times, must be a public advocate.
    The EPA Ombudsman is crippled as long as it remains under the 
control of the Inspector General. Without independence to control his 
casework or his resources, an Ombudsman is one in name only. The 
situation became so untenable for Robert Martin that he resigned in 
protest when the Agency opted to house the Ombudsman under the 
Inspector General's office, change the locks on his doors and remove 
all his files without his approval while he was away on EPA-related 
travel.
    Recent events require that we institute an independent, fully 
funded EPA Ombudsman Office to receive, investigate and resolve 
complaints. Perhaps the best way is to make the Ombudsman an arm of 
Congress, but wherever an Ombudsman is placed, the office must have 
control of its resources, staff and cases. The Ombudsman must be able 
to communicate with the public and must be able to act free from 
interference by outside parties or from within the agency itself. 
Wherever an Ombudsman is ultimately placed, it is clear that the Office 
of Inspector General is not appropriate.
    I sit here next to my Republican colleague from Colorado, having 
experienced many of the same problems with the EPA: unresponsiveness, 
neglect and lack of substantive public involvement. The WTC is a unique 
case in the order of its magnitude and precedent, but not with respect 
to the growing need for a mechanism to hold agencies accountable and 
ultimately resolve citizens' complaints. And dare I say, the World 
Trade Center may not be the only case of its kind should future 
terrorist attacks occur.
    An independent EPA Ombudsman with the necessary resources and staff 
can provide an antidote to the malaise that we all know sometimes 
befalls Administrative Agencies. This is nothing new to the United 
States or to democracies in general. In fact, establishing independent 
ombudsmen is good government. The Federal Government has decades of 
experience in establishing strong and independent Ombudsmen. The IRS 
and HHS have Ombudsmen to address citizen complaints regarding taxes 
and long-term care respectively. Victims of a terrorist attack, and 
those living with the threat of hazardous waste, deserve at least the 
same protection.

                               __________
 Statement of Nikki L. Tinsley, Inspector General, U.S. Environmental 
                           Protection Agency

    Good Morning Chairman Jeffords and Members of the Committee. My 
name is Nikki Tinsley and I am the Inspector General of the 
Environmental Protection Agency (EPA). I am pleased to speak to the 
Committee today about the Office of the Inspector General's 
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, I believe our office was well 
suited to assume the investigatory functions of the Ombudsman's office. 
In April of this year, the Ombudsman's Office was transferred to the 
OIG.
    Congress established the Inspectors General through the Inspector 
General Act of 1978 (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 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 OIG's in order to insure 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 ensures 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 OIG's 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.
    Since the early 1980's, 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. 
Oftentimes a complaint does not warrant an investigation but rather, 
resolution of an issue. If the first responsibility for handling the 
issue rests elsewhere in the Agency, we will make a referral. In many 
cases, elevation of an issue by the OIG is sufficient to get Agency 
action. This is our current operating procedure for all complaints. In 
some cases, 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 their 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, we have expanded the services of the 
Ombudsman to include all EPA administered programs, rather than 
limiting it 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 10 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. This involved the inventory and 
organizing of 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. To 
date, we have had eight OIG staff members assigned 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 prior 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 10 cases range in age from more than 20 months to 5 years and 
appear to be unresolved. These cases include Marjol Battery, Shattuck 
Chemical, Bunker Hill/Coeur d'Alene. Further, we are determining the 
status of seven additional cases where we have found documents or read 
media accounts of the existence of cases. This includes 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 
conclude these as quickly as possible. We have also begun outreach 
efforts in order to both explain how we plan to perform the Ombudsman 
function and to collect additional information. We have met with 
individual Members of Congress and congressional Committee staff. We 
have made contact with citizen groups in several of the communities 
where there are open cases, and we have scheduled site visits and 
public meetings for Couer d'Alene, Idaho and Tarpon Springs, Florida in 
July.
    Our primary focus at this point is to work to resolve the already 
existing cases. To do this, 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 
future incoming cases. This includes case selection criteria. We have 
also met with the Regional Ombudsmen and are working with them to 
develop a coordinated approach for addressing the incoming issues at 
all levels in a timely and appropriate manner.
    I believe the public reporting of the caseload, activities, and 
accomplishments of the Ombudsman is a vital and important 
responsibility. As an Inspector General I firmly believe that 
professional standards of conduct, a transparent review process, and 
public accountability strengthens the credibility of the reviewer's 
findings. In order to provide accountability and communication with the 
public, and Congress, the work of our Ombudsman will meet the same high 
standards we have for all our other products. We will publish at least 
annually a report summarizing the work of the Ombudsman, including a 
status report on the cases opened by the National Ombudsman and 
recommendations or findings made to the Agency. We already provide 
similar reports semiannually for all our work, and annually for 
Superfund program work.
    Members of the Committee, I am 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 my commitment to be responsive to any 
questions or comments you may have as we move forward with this 
important work. I welcome your assistance in providing any information 
or suggestions as we move forward with our new responsibilities. That 
said, I hope that you withhold judgment 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 respond 
to any questions the Committee may have at this time.

                                 ______
                                 
 U.S. District Court for the Middle District of Florida, Tampa Division
                     Civil No. 8:01CV-2407-T-17MAP
                             April 8, 2002

  Mary Mosley, Plaintiff, v. Christine Todd Whitman, in her official 
capacity as Administrator of the U.S. Environmental Protection Agency, 
                               Defendant

                        DEFENDANT'S REPLY BRIEF

    Defendant hereby files this reply in support of her motions to 
dismiss and for summary judgment in order to respond to issues raised 
by plaintiff for the first time in her response brief.

I. The Decision to Relocate the Ombudsman Functions Does not Violate 
        the Inspector General Act.
    In opposing defendant's motions to dismiss and for summary 
judgment, plaintiff contends the proposed relocation of the ombudsman 
functions within EPA is a violation of the Inspector General Act of 
1978, 5 U.S.C. app.3 Sec. 9 (hereinafter, the ``IG Act.'') Plaintiff's 
Memorandum in Opposition to Defendant's Motions to Dismiss and for 
Summary Judgment, (hereinafter, ``Pl. Opp. Br.'') at 14. Plaintiffs 
complaint fails to raise this as a count, however, and plaintiff's 
attempt to expand her case beyond the counts in her complaint and add a 
new claim in her response brief should not be allowed.
    Moreover, the proposed transfer is not a violation of the IG 
Act.\1\ The Office of Inspector General (OIG) at the Environmental 
Protection Agency was established in accordance with the IG Act, for 
the express purpose of, inter alia, conducting and supervising audits 
and investigations relating to EPA's programs and operations, 5 U.S.C. 
app. 3, Sec. 2(a)(1), and to provide leadership and coordination and 
recommend policies for activities designed to promote economy, 
efficiency, and effectiveness in the administration of such programs. 
Id. at Sec. 2(2). Pursuant to the act, the Inspector General can 
``conduct, supervise, and coordinate audits and investigations relating 
to the programs and operations of such establishment.'' 5 U.S.C. app. 
3, Sec. 4(a)(1). To carry out these broad responsibilities, the 
Inspector General has extensive authority, including authority ``to 
make such investigations . . . relating to the administration of the 
programs and operations of the . . . [EPA] as are, in the judgment of 
the Inspector General, necessary or desirable.'' Id. at Sec. 6(a)(2).
---------------------------------------------------------------------------
    \1\ While issues raised for the first time in a reply brief are not 
typically considered, see e.g., United States v. Kimmons, 1 F.3d 1144, 
1145 (11th Cir. 1993), defendant provides this argument solely because 
plaintiff has raised the issue for the first time in her response 
brief. This argument is in addition to the arguments defendant raised 
in her motions to dismiss and for summary judgment.
---------------------------------------------------------------------------
    The Inspector General may also demand access to agency records and 
reports; request information or assistance from Federal, state, or 
local government agencies or units; issue subpoenas to entities other 
than Federal agencies; administer or take oaths; and ``select, appoint 
and employ such officers and employees as may be necessary'' to carry 
out its responsibilities. Id at Sec. 6(a). Finally, the Act allows 
defendant to transfer offices or agencies, or functions, powers, or 
duties thereof, as she may determine are properly related to the 
functions of the OIG, and would, if so transferred, further the 
purposes of the IG Act, except that she cannot transfer program 
operating responsibilities under this provision. Id. at Sec. 9(a)(2).
    Plaintiff contends the IG Act has been violated because the act 
does not specifically name the same ombudsman responsibilities listed 
in the long-expired statutory provision establishing the EPA's Office 
of the. Ombudsman, and because, according to plaintiff, the ombudsman's 
functions are program operating responsibilities. Pl. Opp. Br. at 13-
14. Both of these arguments fail.
    The IG Act clearly states that the Inspector General can ``conduct, 
supervise, and coordinate audits and investigations relating to the 
programs and operations of such establishment.'' 5 U.S.C. app. 3, 
Sec. 4(a)(1). One of the three basic areas of inquiry for such audits 
is to review program results to determine whether programs or 
activities meet the objectives established by Congress or the agency. 
S. Rep. No. 95-1071 at *29, reprinted in 1978 U.S.C.C.A.N. 2676, 2703-
2704 (1978). As such, the terms of the statute authorize the Inspector 
General to conduct the same function of receiving and investigating 
complaints that the long-expired statute creating the Ombudsman office 
set forth. Id. Sec. 6917(a)(d).\2\ The November 27, 2001 memorandum 
transferring the ombudsman functions notes that defendant and the 
Inspector General expect the newly relocated ombudsman function will 
address public concerns across the spectrum of EPA programs. Exh. B to 
TRO Opp. at 2. Likewise, EPA's OIG maintains a hotline for the public 
to use. See Exhs. 1 & 2 attached hereto.
---------------------------------------------------------------------------
    \2\ The ombudsman functions have been retained at EPA as a matter 
of policy. Exh. B to Defs. TRO Opp. at 1-2.
---------------------------------------------------------------------------
    Moreover, the very elements of the ombudsman's functions that 
plaintiff contends must be protected are the elements that the IG Act 
provides the OIG. Plaintiff avers that the relocation of the 
ombudsman's functions will impair the ability of the Ombudsman to 
independently investigate and oversee EPA's handling of the Stauffer 
Chemical Superfund site. Complaint at 7, 14, 18, 30, 41. As explained 
above, OIG has extensive authority to ``conduct, supervise, and 
coordinate audits and investigations relating to the programs and 
operations'' of EPA, 5 U.S.C. app. 3, Sec. 4(a)(1), and OIG has access 
to agency records and reports, and to a wide-range of investigatory 
tools, such as subpoenas, to conduct its investigations and audits. 
OIG's audit, investigatory, and subpoena powers are ``very broad.'' 
Winters Ranch Partnership v. Viadero, 123 F.3d 327, 330 (5th Cir. 
1997).
    Furthermore, OIG has the independence that plaintiff contends is 
imperative. Congress created OIG in order to ensure that the body 
investigating an agency have the requisite level of independence to 
effectively conduct its investigation. S. Rep. 95-1071 at *7, reprinted 
in 1978 U.S.C.C.A.N. 2676, 2682 (1978). See also Winters Ranch 
Partnership, 123 F.3d at 333 (noting that purpose of the IG Act was to 
establish an OIG in each agency ``to effect independent and objective 
audits and investigations of the programs and operations of each 
agency.''). Moreover, defendant's November 27, 2001 memorandum 
transferring the ombudsman's functions noted that the relocation to the 
OIG would give the function the independence and impartiality 
recommended by a number of Members of Congress. Exh. B to Defs. TRO 
Opp. at 1-2. Thus, plaintiff has failed to demonstrate that the OIG 
cannot assume the ombudsman's functions under the IG Act.
    Plaintiff also contends that the ombudsman's functions are 
``central to the operations of the agency'' and therefore, are a 
program operating responsibility that cannot be transferred to the OIG. 
Pl. Opp. Br. at 14. Plaintiff fails to provide any evidence or 
explanation to support her conclusion, and, in any event, her argument 
fails because the ombudsman's functions are not a ``program operating 
responsibility.'' While the IG Act does not define the term, ``program 
operating responsibility,'' courts have equated the term to 
``congressionally delegated'' responsibilities, Winters Ranch 
Partnership, 123 F.3d at 334; to ``long-term'' regulatory 
responsibilities, id. at 334-36; to ``those activities which are 
central to an agency's statutory mission,'' United States v. Hunton & 
Williams, 952 F. Supp. 843, 850 (D.D.C. 1997); and to ``day-to-day,'' 
``hands on'' responsibilities for the overall administration of an 
agency's programs. Greene v., Sullivan, 731 F.Supp. 835, 836 (E.D. 
Tenn. 1990). The United States Court of Appeals for the Eleventh 
Circuit found an investigation was not a program operating 
responsibility because it was initiated by the Inspector General in 
response to an allegation of fraud and abuse, and not as part of a 
regulatory compliance audit that would be within the authority of 
another office to conduct. Inspector General of the United States 
Department of Agriculture v. Glenn, 122 F.3d 1007, 1010 (11th, Cir. 
1997).
    The ombudsman's functions at EPA are no longer governed by statute, 
42 U.S.C. Sec. 6917(d), and have been retained by EPA as a matter of 
policy. Exh. B to Defs. TRO Opp. at 1-2. Plaintiff has provided no 
evidence suggesting that the ombudsman's functions are routine, long-
term responsibilities statutorily provided to a particular office 
within EPA, and central to EPA's mission. Moreover, the rationale 
behind prohibiting the transfer of program operating responsibilities 
is to preserve the function of the OIG as an independent and objective 
inspector of the agency's operations. Winters Ranch Partnership, 123 
F.3d at 334. As explained above, defendant has decided to move the 
ombudsman's functions to allow for, among other things, the necessary 
independence of the ombudsman functions. Nov. 27, 2001 Memo, Defs. Exh. 
B to TRO Opp. at 1-2.\3\
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    \3\ The legislative history to the IG Act provides an example of an 
EPA investigation that would clearly fall within the IG's authority. 
Senate Report No. 95-1071 notes that while the OIG would not likely 
review an allegation that a specific sewage treatment plant was not 
operating according to technical specifications, the OIG would properly 
review an allegation that EPA had approved plans for a faulty sewage 
treatment system because an agency official was improperly influenced 
in his decision. S. Rep. No. 95-1071 at *28, reprinted in 1978 
U.S.C.C.A.N. 2676, 2703 (1978).
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    Finally, the fact that the ombudsman's function was previously 
located within a program office, the Office of Solid Waste and 
Emergency Response, does not mean that it is a ``program operating 
responsibility.'' The IG Act allows defendant to transfer ``offices or 
agencies, or functions, powers, or duties thereof, ``as she may 
determine are properly related to the functions of the OIG, and, if so 
transferred, would further the purposes of the OIG Act. 5 U.S.C. app., 
Sec. 9(a)(2). To conclude that a function is a ``program operating 
responsibility'' simply because it is found within a program office 
within an agency would nullify the provision allowing defendant to, in 
her discretion, transfer offices or agencies, or functions thereof, to 
the OIG. 5 U.S.C. App. 3, Sec. 9(a)(2).
    Plaintiff cites Truckers United For Safety v. Mead, 251 F.3d 183, 
186 (D.C. Cir. 2001), which is distinguishable here. In Mead, the court 
found that the OIG had improperly ``lent'' its search and seizure 
powers to a routine agency investigation that, by statute, was charged 
to another office to conduct. 251 F.3d at 186-87, 189. The Mead court 
noted that OIG's investigation was not an audit of agency enforcement 
procedures or policies, or an investigation relating to abuse or 
mismanagement at the agency. Id. at 189. Here, in contrast, the 
Inspector General is not lending her authority to an investigation 
which is under the statutory authority of another office, or which is 
being conducted by another office within EPA, such as by OSWER. 
Moreover, EPA has maintained an ombudsman function not pursuant to 
statute or as required by Congress, but only as a matter of agency 
policy. Ex. B to Defs. TRO Opp. at 1-2. Defendant has decided to move 
the ombudsman's functions to OIG, pursuant to her authority under 5 
U.S.C. app. 3, Sec. 9(a)(2). The proposed relocation is not a violation 
of Sec. 9(a)(2) of the IG Act.\4\
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    \4\ Plaintiff states that the proposed relocation will eliminate 
the Office of the Ombudsman. Pl. Opp. Br. at 14, n.6. While the office 
itself will not be in existence, the November 27, 2001 Memorandum makes 
clear that the ombudsman's functions are being transferred to OIG. 
Defs. Exh. B to Defs. TRO Opp. Thus, as this Court recognized in 
denying plaintiff's motions for a TRO and preliminary injunction, Dec. 
28, 2001 Order at 7, the ombudsman's functions will continue at EPA.
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Plaintiffs in Two Other Cases Raising Identical Causes of Action Have 
        Not Filed Motions to Consolidate
    Plaintiff also raises, for the first time, the issue of ``a 
transfer and consolidation pursuant to 28 U.S.C. Sec. 1407.'' Pl. Opp. 
Br. at 3. Defendant will respond to any motions to transfer, 
consolidate, or any other motion, when plaintiff files and serves said 
motion. Defendant notes, however, that she has verbally advised 
plaintiff that she is opposed to a voluntary dismissal, without 
prejudice, by plaintiff of the action in this Court.
    Moreover, plaintiff offers no evidence in support of her assertion 
that plaintiffs in several other districts in which the Ombudsman is 
involved on behalf of the community are intervening in [Martin v. 
Whitman, No. 1:02CV00055 (RWR) (D.D.C.)] rather than continuing with 
their suits where they were originally filed suit.'' Pl. Opp. Br. at 3. 
On the contrary, there are currently two other cases pending in Federal 
district court which raise counts virtually identical to this action. 
Throop Borough v. Whitman, No. 3:CV01-2461 (James M. Munley) (M.D. 
Pa.); city of Smelterville v. Whitman, Cv. No. 020005-N-EJL (D. Idaho). 
Defendant has moved to dismiss the Throop Borough case. Exh. 2 hereto. 
Defendant's response to the amended complaint in city of Smelterville 
is due April 16, 2002. Order attached hereto as Exh. 3.\5\
---------------------------------------------------------------------------
    \5\ Plaintiff makes several references to allegations allegedly 
raised in connection with the Martin case. Pl. Opp. Br. at 3, n. 1. As 
noted in defendant's brief in support of her motions to dismiss and for 
summary judgment, the Martin case involves a claim that the relocation 
violates the Ombudsman's First Amendment rights. Defs. Memo. at 5-6 and 
Exh. 3 thereto. Except for the allegation regarding the removal of Hugh 
Kaufman from Ombudsman functions, plaintiff has not raised the 
allegations in footnote 1 of her response brief in her complaint, and 
she does not appear to rely on them in support of her case.
---------------------------------------------------------------------------
III. Plaintiff Has Not Asserted A Claim For Retaliatory Discharge
    Finally, plaintiff raises for the first time a contention that 
there is a material issue of fact as to whether the proposed relocation 
of the Ombudsman functions is a ``retaliatory discharge of the National 
Ombudsman.'' Pl. Opp. Br. at 2. While defendant disagrees that there 
are any material issues of fact here, this particular statement is 
objectionable because, as with the claim that the IG Act has been 
violated, plaintiff has not brought a claim here that the proposed 
relocation is a ``retaliatory discharge.'' Again, plaintiff is using 
her opposition brief to add new claims to her case, without moving for 
leave to amend her complaint.\6\
---------------------------------------------------------------------------
    \6\ It is doubtful that plaintiff would have standing to bring a 
claim for retaliatory discharge, as she is not an EPA employee affected 
by the proposed transfer of the Ombudsman functions.
---------------------------------------------------------------------------

                               CONCLUSION

    For the reasons expressed above, as well as in defendant's 
memorandum supporting her motions to dismiss and for summary judgment, 
defendant's motions to dismiss and for summary judgment should be 
granted.
            Respectfully submitted,
                                                Mac Cauley,
                                                     U.S. Attorney.
                                 ______
                                 
    Responses by Nikki Tinsley to Additional Questions from Senator 
                                Jeffords

    Question 1. Ms. Tinsley, please address the concerns voiced by Mr. 
Wood about the ombudsman's ability to function in a manner consistent 
with relevant professional standards for ombudsmen.
    Response. As Mr. Wood noted in his testimony, there are no Federal 
standards specific to the operation of the ombudsmen offices, however 
several professional organizations provide standards relevant to 
ombudsmen. He stated that the standards incorporate core principles of: 
independence, impartiality and confidentiality. We believe those 
standards are met with the Ombudsman operating within the Office of the 
Inspector General (OIG).
    The OIG, through the Inspector General Act (IG Act), has specific 
authorities designed to insure 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. We 
do not have program responsibilities, therefore our review of EPA's 
program management and delivery can be conducted with impartiality. 
Finally, we adhere to appropriate professional standards when we 
conduct our audits, investigations and evaluations. This includes 
standards of conduct, freedom from personal impairments, and internal 
controls, all of which support the principles of independence, 
impartiality and confidentiality.

    Question 2. When do you anticipate publicly posting the position of 
the ombudsman?
    Response. We have not established a specific timeframe for hiring a 
permanent ombudsman. Our immediate focus has been, and will continue to 
be, moving forward on the existing caseload. We expect Ms. Boyer to 
continue in her capacity as Acting Ombudsman until a permanent 
ombudsman is hired.

    Question 3. How will the reorganization of the ombudsman function 
and the location of the ombudsman within the OIG-change what the OIG 
does?
    Response. The transfer of the ombudsman function to the OIG does 
not fundamentally change what we do. We will continue to conduct 
audits, investigations and evaluations of EPA's programs, and 
performance, and EPA contractors. We will still operate under the 
authorities provided under the IG Act. The only change within our 
organization has been the consolidation of our congressional and public 
affairs activities into a new Office of Congressional and Public 
Liaison which includes the ombudsman.

    Question 4. Ms. Tinsley, as the Inspector General, do you review 
all written reports prepared by the Office of Inspector General? Do you 
plan to review written reports prepared by the ombudsman? If so, does 
that not present a possible conflict if the ombudsman's report could be 
construed to reflect unfavorably on prior work performed by the OIG?
    Response. Yes, I review written reports issued by our office. This 
is typically done after a report has been issued. I plan on engaging in 
a similar process with the reports of the ombudsman. By law, the OIG 
does not have any program management or program delivery 
responsibilities, so there is no possibility of a conflict of interest 
with a report of the ombudsman. The function of the EPA Ombudsman is to 
investigate citizen complaints about EPA's performance, not the work of 
the OIG.

    Question 5. Ms. Tinsley, how would you handle a situation in which 
the ombudsman is asked to investigate a matter on which the OIG had 
previously reported? Would you recuse yourself from reviewing the 
ombudsman's report on this matter?
    Response. Any decisions on recusal would be made on a case by case 
basis.

    Question 6. According to the GAO testimony, having the ombudsman 
located within the Office of Inspector General could augment the level 
of resources devoted to the ombudsman function, since the ombudsman 
would be able to draw on staff from other areas of the OIG. However, 
couldn't this also work in reverse? What guarantee do we have that the 
ombudsman staff will not be diverted to work on regular OIG audits and 
investigations, particularly during periods when workload levels are 
high?
    Response. The OIG work planning process is designed to ensure that 
we staff the highest priority assignments, whether they are audits, 
investigations, or evaluations. As a practical matter, our auditors, 
evaluators, investigators, engineers, attorneys, and scientists are 
assigned to projects and cases, not offices. This provides the added 
flexibility to devote the necessary resources to the priority 
assignments. With more than 350 OIG employees, we fully expect to be 
able to staff high priority ombudsman cases.
    Question 7. In its July 2001 report, GAO concluded that the other 
duties assigned to the regional ombudsmen hampered their independence. 
Has OIG defined the role of the regional ombudsmen to avoid potential 
conflicts of interest?
    Response. The Regional Superfund Ombudsmen function was not 
transferred to the OIG. At this time, they will continue to operate 
under the Regional offices. However, we have met with the regional 
ombudsmen, established lines of communication for appropriate 
coordination with them. With the Agency, we have jointly issued 
preliminary guidance on the process for handling information requests, 
and complaints that are made directly to the regional ombudsmen 
offices. Complaints of inappropriate action by Agency officials or 
other related parties (e.g. state and PRP leads) will be elevated to 
the OIG ombudsman for an independent and impartial review.
    Overall, we have found that the regional ombudsmen provide a 
valuable service by facilitating critical exchanges concerning process 
and site specific information which diffuses confrontational situations 
and precludes more serious and elevated problems. The OIG ombudsman 
will participate with the regional ombudsmen in monthly meetings and 
continue coordination efforts to ensure appropriate level of review and 
information exchange.
    Question 8. OIG has announced plans to expand the scope of the 
ombudsman's function to cover all agency programs. Will this expand the 
budgetary needs of the office?
    Response. We expect ombudsman function will necessitate an increase 
in the overall budget for the Office of the Inspector General.

    Question 9. Please update the Committee on the progress you have 
made on the cases that Mr. Martin's office was working on prior to its 
transfer to the IG's office.
    Response. We have inventoried and organized of 130 boxes of 
documents that were transferred from the National Ombudsman's office. 
This was a rather challenging undertaking due to the lack of any 
organized system of records or case file index. We have been assessing 
approximately 20 open cases. Ten of the 20 cases initially appear to be 
completed or closed, and we are working to confirm this. The remaining 
10 cases range in age from more than 20 months to 5 years and appear to 
be unresolved. Further, we are determining the status of seven 
additional cases where we have found documents or read media accounts 
of the existence of cases.
    We have developed a priority list of cases and assigned team leads 
for the cases. We have also begun outreach efforts in order to both 
explain how we plan to perform the ombudsman function and to collect 
additional information. We have made contact with citizen groups in 
several of the communities where there are open cases, and we have 
conducted site visits and participated in public meetings in Spokane, 
Washington, and Northern Idaho, and Tarpon Springs, Florida.

                                 ______
                                 
 Responses by Nikki Tinsley to Additional Questions from Senator Crapo

    Question 1. Could you specify the time line or date at which the 
Office of the Inspector General intends to officially publish or 
announce the final management and operational responsibilities for the 
National Ombudsman function?
    Response. We are in the process of finalizing the function 
statement, position description and case selection criteria for the 
ombudsman. We expect to have the publicly available in September.

    Question 2a. For what reason does Ms. Boyer remain only in an 
``Acting'' capacity as the National Ombudsman?
    Response. Until a permanent ombudsman is competitively selected 
under the Office of Personnel Management procedures for filling a 
vacancy under civil service procedures, an individual serving as the 
OIG ombudsman must do so in an acting capacity.

    Question 2b. When and how do you intend to establish a permanent 
National Ombudsman?
    Response. We have not established a timeframe for permanently 
hiring an ombudsman. When we fill the vacancy on a permanent basis, we 
do so in accordance with established requirements for hiring in the 
Federal Government.

                               __________
Statement of David G. Wood, Director, Natural Resources and Environment

    Mr. Chairman and members of the committee, 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, GAO-01-813 
(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:
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    \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, GAO-01-466 (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.
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     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).
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    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, 
GAO-01-794 (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 Committee 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 Committee may have at 
this time.

                               __________
      Statement of Robert J. Martin, Former EPA National Ombudsman

    Thank you Mr. Chairman and distinguished members of the committee 
for the opportunity to appear and testify before you in connection with 
S. 606, the pending Ombudsman reauthorization Act of 2002. I understand 
the focus of the hearing is to make inquiry regarding the actions of 
the Environmental Protection Agency and the EPA Office of the Inspector 
General impacting the Ombudsman and to offer suggestions relating to 
the establishment of a permanent Ombudsman institution for the 
environment. As the former National Ombudsman for Hazardous and Solid 
Waste at the EPA for nearly 10 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 
decisionmaking 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 
decisionmaking 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 followup 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 U.S. 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, U.S. 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, 18 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, U.S. 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 U.S. 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, U.S. 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 U.S. 
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 
decisionmaking 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 U.S. 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, 6 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 2 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.

                               __________
      Statement of Danielle Brian, Executive Director, Project on 
                          Government Oversight

    I want to thank you for asking me to testify today on the EPA 
National Ombudsman's Office, and the brazen attempts spanning two 
Administrations of EPA management to weaken, and ultimately destroy, 
that office. The Project On Government Oversight (POGO) investigates, 
exposes, and seeks to remedy systemic abuses of power, mismanagement, 
and subservience by the Federal Government to powerful special 
interests. Founded in 1981, POGO is a politically independent, 
nonprofit watchdog that strives to promote a government that is 
accountable to the citizenry.
    POGO first became aware of a problem when citizens from Lake 
Township, Ohio, brought the Industrial Excess Landfill (IEL) Superfund 
site to our attention more than 5 years ago. From the beginning, 
citizens, public officials, and independent scientists have raised 
legitimate questions about conflicts of interest, inappropriate testing 
methods, quality of site characterization, and adequacy of the methods 
of remediation selected by the EPA for the site clean-up. Because of 
these issues, citizens from the community had attempted to gain a 
National Ombudsman review of the IEL. Their request was denied--not by 
the National Ombudsman, but by the Environmental Protection Agency 
(EPA) itself. When we petitioned the EPA National Ombudsman's office to 
review the site, our request was also denied--again by Administrator 
Carol Browner, not by the Ombudsman. It took repeated requests from 
POGO and Representative Tom Sawyer over almost an entire year to get 
top EPA management to overturn their decision to prevent Ombudsman 
Robert Martin from reviewing the site. The mere fact that the Ombudsman 
was not allowed to decide for himself whether or not the case was 
worthy, but instead had to receive approval from both the head of the 
Superfund Office as well as the Administrator, made a mockery of the 
independence of the office.
    We decided to look at other EPA regions around the country to see 
if the problems at IEL were unique. Unfortunately, we found that they 
were not. We learned about the Shattuck site in Denver, Colorado; the 
Brio site in Harris County, Texas; about McFarland, California; Tarpon 
Springs, Florida, and on and on. The communities affected by these 
sites had all come to view the EPA not only as unresponsive to their 
concerns, but as active partners with the polluters. And the only place 
left to consider the concerns of these communities was the National 
Ombudsman's office. Against the odds, in these and other cases the 
Ombudsman was able to make all proceedings public as well as conclude 
or begin the process of resolving longstanding disputes.
    Despite the obstacles, the National Ombudsman's Office has been 
remarkably effective at getting the EPA to review its decisions and 
correct its mistakes. Not only did the Ombudsman offer the communities 
successful resolutions to their particular troubles, he gave them 
reason to believe that sometimes the government can do the right thing. 
Unfortunately, the success of the Ombudsman's work embarrassed the EPA, 
and has ultimately resulted in an effort by the EPA to undermine that 
Office. I find it remarkable that so much effort has gone into 
silencing the Ombudsman's office, when this office can only make 
recommendations--they cannot overturn EPA decisions.
    Our concern over the Ombudsman's lack of independence led us to 
suggest to EPA top management in November 1998 that a public process 
and working group be initiated to develop recommendations for improving 
the independence of the National Ombudsman's Office. We recommended 
that representatives from the U.S. Ombudsman Association, environmental 
community, labor, industry, good government public interest groups, the 
EPA, the National Ombudsman's office, members of affected communities, 
and others be included in this working group. In a response to our 
letter, however, EPA management stated ``I do not find that such a 
review as depicted in your letter is necessary.''
    Apparently, while no public review was necessary, the EPA found 
that a covert one was. EPA Management promptly convened a behind-
closed-doors EPA committee on the National Ombudsman ``problem.'' Why 
was an internal EPA management committee created to change a process 
that is lauded by the public and their elected officials?
    Since that time, interference by the management of EPA into the 
Ombudsman's work has occurred again and again, culminating in the total 
dismantling of the office. At one point, EPA established a network of 
part-time Regional Ombudsmen--approximately 20 percent of the time they 
were supposed to be Ombudsmen while 80 percent of the time they were 
working for the very bureaucracy whose decisions they were supposed to 
be evaluating. This move clearly revealed a lack of understanding by 
EPA management of the purpose of an Ombudsman office.
    It is fairly clear to us why the office of the National Ombudsman 
has come under constant attack by EPA top management. It is because the 
Ombudsman has been effective in doing exactly what an Ombudsman is 
supposed to do--to investigate complaints of inadequacies in the EPA's 
handling of Superfund sites and to suggest remedies to the problems he 
finds.
    It must be noted that hostility to this office began under a 
Democratic Administration, and continued under a Republican one. Good 
Ombudsman work is welcomed by the communities, and even the Potentially 
Responsible Parties (PRPs), but never by the management whose decisions 
he is scrutinizing.
    We are here today because S. 606 has been introduced to provide the 
Ombudsman's Office statutory authority. This step is absolutely 
essential given the EPA's history, and especially given Administrator 
Christine Todd Whitman's decision to raid the office and move the files 
to the Inspector General. The Ombudsman's Office has been closed simply 
because Robert Martin was doing his job despite the liabilities under 
which he was forced to work--a tiny and shrinking staff, repeated 
pressure from management not to take on cases, and constant efforts to 
further limit his authority.
    In addition to this legislation, the Whistleblower Protection Act 
Amendments, S. 995, would give the Ombudsman necessary protections to 
carry out his job responsibilities. Were these amendments in effect 
today, Robert Martin would have had legal protection from the EPA's 
attempts to dismantle his office simply because he did his job. 
Amazingly, being fired for doing ones job is only one of many 
inexcusable loopholes that have made the law irrelevant. I urge all the 
Members of this Committee who have not yet become co-sponsors to 
support this important legislation.
    The Government Accounting Office (GAO) examined four other agencies 
with ombudsman programs for its report on the status of EPA's 
Ombudsman: the Agency for Toxic Substances and Disease Registry, the 
Food and Drug Administration, the Federal Deposit Insurance 
Corporation, and the Internal Revenue Service. All of these ombudsman 
programs have independence from the agency within which they are 
organizationally situated and some have control over budgetary and 
staffing resources. These agencies also all have Inspectors General, 
though none of their ombudsman programs are under the aegis of, or in 
any way affiliated with, the respective Inspectors General.
    We believe in the independence of the Inspectors General as well as 
the Ombudsman's Offices. They each serve important, but different 
functions. According to the legislative history of the creation of the 
Inspectors General,

          Broad as it is, the Inspector and Auditor General's mandate 
        is not unlimited. Issues requiring substantive or technical 
        expertise will often fall outside his proper sphere. For 
        instance, if the Inspector and Auditor General at the 
        Environmental Protection Agency received a report that a new 
        type of sewage treatment system in Milwaukee was not 
        functioning according to specifications, resulting in dangerous 
        levels of pollution, the Inspector and Auditor General could 
        quite properly decide that responsibility for handling the 
        issue rested elsewhere and make the proper referral.

    In fact, the office to which the Inspector General could make that 
``proper referral'' would likely be the National Ombudsman's office. An 
IG does not have the technical expertise to evaluate a proposed 
remediation and determine whether the EPA's decisionmaking is sound. In 
other words, the IG is set up to investigate waste, fraud, and abuse, 
and audit programs. The Ombudsman, on the other hand, is the proper 
office to receive complaints, either from the community or the PRPs, 
that a cleanup plan is somehow inadequate. After an investigation, the 
Ombudsman can evaluate the validity of this plan something the IG would 
not and could not do.
    It is particularly that the EPA have an independent Ombudsman 
Office because of a regulation in the Superfund Act that prevents a 
remedy decision from being challenged until after the remedy has been 
implemented. This rule, CERCLA section 113(h), eliminates the option of 
challenging a remedy through the courts that, for example, the 
community thinks will further endanger its health or safety. While the 
rule was adopted to prevent parties from tying up a good remedy in the 
courts, it also serves, in reality, to allow the EPA to implement a bad 
remedy.
    Although the entities responsible for the pollution, the PRPs, 
cannot challenge a remedy through this route, the EPA allows them to 
conduct the studies and provide the data that influence the design of a 
site remedy. Citizens in Superfund communities have not been allowed 
that same opportunity. The Ombudsman is the only recourse for citizens 
who feel that the EPA has not adequately protected their health or the 
environment.
    These concerns are not new. It was 13 years ago that the Senate 
Subcommittee on Superfund issued a bipartisan report which found that, 
statistically, the involvement of the PRP's led to cheaper remedies 
that did not necessarily protect health and safety. The report stated, 
``This data raises the disturbing possibility that EPA, in an effort to 
achieve settlements or to compel responsible parties to pay for 
cleanups, may be sacrificing health and environmental standards as 
required by law.''
    We are releasing today the results of our investigation into the 
EPA's handling of Superfund sites, using the IEL site in Ohio as a case 
study. It is entitled, ``A Partial Approach to Clean-up: EPA Mishandles 
Superfund Investigations.'' We conclude that because the EPA has come 
to rely so heavily on the PRPs to help develop the cleanup plan for the 
sites, the system is skewed to favor the cheapest, but not necessarily 
best, remedy. At the same time, the communities are essentially 
powerless to protect their interests. As a result, the National 
Ombudsman's office is the last recourse for communities to ensure that 
a thorough and adequate investigation of the site has taken place and 
the best interests of the community have been considered.
    Legislation such as S. 606 is essential for the independence of 
this critical function. However, we have come to believe that although 
the Ombudsman's Offices reviewed by the GAO did report to Senior 
Administrators of their Agencies or Departments, the plan in S. 606 to 
move the EPA's Office of the Ombudsman to the Administrator's Office 
will not work. From our work investigating the oversight offices at 
other agencies, including the Department of Energy and the Nuclear 
Regulatory Commission, POGO has determined that genuine independent 
oversight cannot proceed from within the bureaucracy it evaluates. In 
this case, we would encourage the Committee to consider placing a 
National Ombudsman's Office in either a White House office or as part 
of the legislative branch, perhaps attached to the General Accounting 
Office. We also believe that the legislation should include 
whistleblower protections for those who come to the Ombudsman with 
information.
    We would be happy to work with you on this issue, and to answer any 
questions you may have.

                               __________
  Statement of Katherine Zanetti, Shoshone Natural Resources Coalition

                              INTRODUCTION

    Mr. Chairman, my name is Kathy J. Zanetti. I am a 49-year-old 
grandmother of four and a proud member of a fifth generation family 
from the Historic Silver Valley of North Idaho.
    I would like to thank you and Senator Crapo for the opportunity to 
speak before this committee today on a topic that has dominated the 
attention of my community for the last 2 years.
    I am honored to represent the Citizens of Silver Valley and testify 
in support of Senate Bill 606. As Senator Crapo stated, I am the 
chairman of Shoshone Natural Resources Coalition, a non-profit group of 
volunteer citizens, who work and live in the Coeur d' Alene basin and 
are concerned about Human Health, Environmental and Economic Issues.
    We are a grassroots organization made up of a very diverse group of 
individuals. SNRC represents business owners, district school 
officials, community leaders, local elected officials and generations 
of Silver Valley Families. Many of our members have been involved in 
EPA issues in the Upper CDA Basin for 20 plus years.
    And although our approach and opinions about cleanup in the Silver 
Valley may be different, we are united in the common need for a truly 
independent Ombudsman.
    We are a community filled with an intense pride, for our heritage, 
our families and most of all our way of life. A way of life now held 
precariously in peril by the decisions of various Federal agencies.
    The Environmental Protection Agency came to the Silver Valley in 
the early 1980's shortly after CERCLA [Superfund] became law, to 
address specific cleanup at the Bunker Hill Smelter and they have been 
there ever since.
    Although, there may have been a human health risk that warranted 
their presence at the time, there is no medical or undisputed 
scientific evidence that one exits today.
    In the last 20 some years, the EPA has spent over $400million 
dollars in the Silver Valley and has not even completed the original 
scope of cleanup. EPA Region 10 deceived the public by first promising 
that the superfund site in Kellogg would not extend beyond its initial 
21-square mile box.
    Yet, they have unilaterally expanded the range of remediation by 
1500 square miles, crossing state lines, adding to the cost another 
$360millon dollars (possibly as much as $1.3billion) and creating the 
Nation's Largest Superfund Site. With little or no regard to the 
citizens or communities who must endure these ever changing boundaries.
    Whereupon today, after all the money and billion-dollar expansion 
plans, EPA's own Central Impoundment Area at the Bunker Hill Superfund 
Site, remains the largest point source contributor of metals into our 
watershed.
    It is our sincere wish to take care of any necessary cleanup that 
remains to be done in the Upper Basin, to get out from under the Stigma 
of ``Superfund'', and to rebuilding our lives, as well as, the economic 
stability of our community.
    Superfund actions around the Nation have taken on a life of their 
own, which hold communities such as mine in a never-ending state of 
limbo. It appears that Region 10 EPA in their dealings with the Coeur 
d' Alene River Basin of North Idaho has become a Bureaucratic machine, 
driven by personal agendas.
    After years of attending meetings, drafting comments and writing 
hundreds of letters, we realize that our voices have fallen on deaf 
ears. When in reality, we were merely being counted as part of the 
agencies numbers game. They hold hearings and workshops but do not seem 
to listen to the concerns of the communities involved.
    We have truly had nowhere else to turn, until the Ombudsman stepped 
forward.
  epa's office of hazardous waste and the office of inspector general
    The Office of the Ombudsman has answered our call to the Silver 
Valley.
    First, under the Office of Solid Waste and Emergency Response, 
where it's authority was maintained by the very entity it was 
investigating, budgets and personnel were used to control ombudsman 
activities and who's mail was often intercepted by EPA congressional 
Affairs. All of which resulted in a total lack of independence. Where 
the United States Department of Justice even attempted to kill the 
investigation to protect its Natural Resource Damage lawsuit.
    Second, at present, under the Office of Inspector General, the 
Ombudsman is to assume duties other than those designated under 
Superfund, take on an increased workload and basically ceases to exist 
as an office because, it is now a part of yet, another bureaucracy 
within a larger bureaucracy.
    While we welcome the attempt to work with the IG's office and will 
welcome them with open but cautious arms to the Silver Valley, we feel 
that in the long term this situation cannot work. There must be a 
dedicated, independent Ombudsman.
    The National Ombudsman serves as the only intermediary between EPA 
and citizens when things have gone terribly awry. This office is the 
last resort and sometimes the only resort for the common citizen and 
common sense. The Office of the Ombudsman, above all else, requires 
independence, so that it may work effectively with both sides to find 
reasonable and successful solutions that are environmentally sound and 
meeting the needs of communities everywhere.
    The ombudsman position is the people's court of last resort. 
Communities like the Silver Valley need an Ombudsman who not only can, 
but also who must, intervene on environmental health and safety issues 
on our behalf. Without having their hands tied, actions influenced and 
censored by the controls of other agencies.
    Only the Ombudsman can answer our call to do the right thing!

           SENATE BILL 606, THE OMBUDSMAN REATHORIZATION ACT

    To be effective and of true service to the public, an Ombudsman 
must be independent, accountable and unbiased. I believe Senate Bill 
606 achieves these objectives. Without S606 communities like mine have 
nowhere to turn when they have exhausted all hope of working 
constructively with the EPA. And I for one; refuse to continue to allow 
the Environmental Protection Agency to use my own tax dollars unchecked 
against either me, or my family.
    Finally, in this Great Nation, our structure of government is set 
up with many forms of checks and balances, so that citizens have a 
channel to express concerns against abuse or cupreous acts of public 
officials.
    The National Ombudsman Office is that channel, and therefore, 
should be able to work unimpeded to help achieve fair, as well as 
reasonable, checks and balances of the EPA.
    In conclusion, I would like to also submit this written testimony.
    Thank you for the opportunity to testify before this committee 
today and I urge you to please support Senate Bill 606.

                               __________
   Statement of Susan Shortz, Citizen of Throop, PA, President, Halt 
    Environmental Lead Pollution (HELP) and Member, Citizen Review 
                     Committee for the Marjol Site

    The Borough of Throop is a small residential community with a 
population of about 4,100. The Marjol Site is a former lead-acid 
battery recycling facility located in the Borough. The 43.9-acre Site 
is owned by Gould Electronics, Inc. There are approximately 65 
residential homes within 500 feet of the Site boundary and 25 of those 
homes are within 50 feet of the Site. The Lackawanna River borders the 
Site to the West. Over 500,000 cubic yards of battery casings are 
stockpiled and buried on this site. There are PCB's, PAH's, antimony, 
arsenic, cadmium and other carcinogens buried on this site. Lead has 
been measured at levels as high as 250,000 parts per million in the 
soil. In addition, a large volume of soil offsite became contaminated 
with lead from Site operations, fugitive dust emissions, and stormwater 
runoff. This area is undermined from previous anthracite deep coal 
mining. Our county is the site of numerous mine fires and mine 
subsidence occurrences over the years and some are still ongoing. In 
reality it is an illegal, toxic, hazardous waste dump, in the middle of 
small town, without benefit of permits or regulatory controls such as 
liner, or leachate collection systems.
    Several State and Federal site assessments were initiated between 
1967 and 1987 because of elevated airborne emissions and high soil lead 
concentrations in the neighborhood. In 1987 USEPA's Technical 
Assistance Team collected soil samples from onsite and offsite areas. 
In response to elevated lead concentrations onsite and offsite in 
residential areas, the USEPA issued the CERCLA Order on April 6, 1988. 
Although the EPA assured us there were only a few homes contaminated, 
and they would be out of our lives in 2 years, this order resulted in 
the residential cleanup of 111 homes. The families and community 
endured soil excavation, tree and shrub removal, and interior cleaning 
and carpet removal. Although we later found out, through the 
Ombudsman's investigation, that on environmental threat alone we 
qualified for Superfund cleanup on the NPL listing, EPA did not list 
the site on the National Priority List. On June 11, 1990 a RCRA 
Administrative Order of Consent was signed between Gould and the EPA. 
For the next 10 years, we attended meetings, watched timelines come and 
go. And over and over the EPA continued to say that our site would be 
cleaned up in 2 years. Then finally in 2000 we got a glimpse of EPA's 
statement of basis (cleanup order). We were very disappointed that only 
a portion of the hazardous waste would be removed, and most of the 
hazardous waste would remain onsite, covered only by a thin cap. The 
citizens of our small community had been fighting to get our site fully 
cleaned up in a manner that would protect the health and welfare of our 
people imputably. Gould, the owner of the site, has stated since the 
80's that they will only agree to cap the hazardous waste--not to clean 
it up. Although the Borough of Throop had spent almost $1.5 million to 
prove to EPA that a ``cap'' is not appropriate, EPA has refused to 
listen. EPA has repeatedly bowed to Gould's ``demands'', has 
deliberately withheld or covered up information agreed to with Gould, 
and mislead us. When we heard about the National Ombudsman, Robert J. 
Martin's involvement in the Tarpon Springs, Florida Site, we went to 
Senators Arlen Specter and Rick Santorum and asked for their assistance 
to get National Ombudsman Martin to review our case. Mr. Martin's 
presence in Throop, along with Chief Investigator Hugh Kaufman marked 
the first time our concerns were listened to and acted upon.
    The first Ombudsman hearing took place in August 2000. Following 
that hearing, interrogatories were sent. The results were amazing. We 
found out there were over 240 potentially responsible parties, 
including the Federal Government, who had financial liability for 
cleaning up the site besides Gould. We further learned that Gould 
received millions of dollars from the Government and other private 
parties, as well as numerous liability policies. We also found out the 
specifics of a secret amendment to the Consent Order, which changed the 
requirement of temporary storage of contaminated soil onsite to 
permanent entombment. Through the National Ombudsman's geologist, 
Douglas Bell's discussions with our engineering consultants, Gannett-
Fleming, we finally found someone to give credence to our concerns 
about mine subsidence and the impact of a potential mine fire on the 
site. As the investigation continued we were called to Philadelphia to 
meet with EPA Region III Administrator, Bradley Campbell. He listened 
to our concerns and told us he would wait for the recommendations from 
the Ombudsman before making a final decision. Then suddenly in December 
2000 a final decision was handed down on the Marjol Site. It no longer 
called for any guaranteed removal, only what would not fit under the 
cap. It also no longer called for solidification of the remaining 
contaminants under the cap. It also came out before the Ombudsman had 
an opportunity to complete his work and make his recommendation to EPA. 
Recommendations EPA had promised to listen to. Needless to say we were 
shocked. Then on January 5, 2001, this case, and every other National 
Ombudsman case, was suspended, until ``clear and consistent direction'' 
was received from EPA Management. EPA Management initiated blatant 
interference with the National Ombudsman cases, including Marjol. Among 
other things EPA prohibited the National Ombudsman's Chief 
Investigator, Hugh Kaufman, from helping the Ombudsman and attempted to 
have an Inspector General official, with a conflict of interest, review 
the case. All of this was done throughout 2001 over the strong 
objection of Senators Specter and Santorum. We hit another stone wall.
    The Pennsylvania delegation communicated with EPA Administrator 
Christine Todd Whitman, asking EPA to allow Ombudsman Martin to 
complete his work on the Marjol Site without further hindrance. The 
delegation met with Administrator Whitman on March 8, 2001 and received 
assurances that Ombudsman Martin would receive staffing and other 
resources immediately to proceed with his work. The EPA decision for 
the Marjol Site was on hold. Despite promises not to hinder the 
Ombudsman, EPA Management and the EPA Inspector General proceeded to 
unilaterally detail an investigator from the EPA Office of Inspector 
General to perform the National Ombudsman Marjol Investigation. This 
was done without notice, consultation, or approval of the National 
Ombudsman, even though the individual had a known potential conflict of 
interest. The Pennsylvania delegation has continued to try to intervene 
to get EPA to keep its promises to them and our community to no avail. 
As recently as February 2002, National Ombudsman Martin and his Chief 
Investigator Hugh Kaufman held the second round of hearings on the 
Marjol Case. This time EPA failed to participate in the Ombudsman 
process. One of the many new revelations that came out of that hearing 
was the fact that EPA has continued to lie to the community of Throop 
and active officials by falsely stating that the Site could not be 
cleaned up under the Superfund program. And on goes the saga.
    The Independent National Ombudsman's office within the EPA plays an 
important role. It serves as a watchdog for the citizens and as 
backstop to ensure that the best decisions are being made for their 
community. Trust in the process is heightened when people know they 
have an ``independent Ombudsman'' to closely examine the agency 
decisions. My concern is to ensure that the National Ombudsman's office 
be resurrected to allow it to continue to operate in a transparent way 
and provide meaningful assistance to local communities, like Throop, 
when EPA falters as it has in our case. EPA officials have publicly 
assured us of their full support for the National Ombudsman's efforts. 
Their actions suggest otherwise. No government official who supposedly 
works for us and is paid by us should be afraid to have their decisions 
subjected to public and substantive Ombudsman scrutiny.
    The National Ombudsman Martin's work on the Marjol Site was 
essential in exposing the following problems. The Ombudsman's 
investigation found withheld documents; secret agreements between Gould 
and EPA; they questioned the EPA's choice of Resource Conservation 
Recovery Act (RCRA) as a remediation process; they questioned the EPA's 
use of authority to allow regulations and permitting processes to be 
avoided. I would also like to mention the questioning of the EPA's 
``sound science'', that allows a remediation of a hazardous waste site, 
that has lead levels at 250,000 PPM as well as Polychlorinated-
Biphenyl's (PCB's) and Poly aromatic Hydrocarbons (PAH's),to be 
abandoned in the middle of a residential community; that is adjacent to 
the Lackawanna River, and on a site that has continuing mine subsidence 
and the potential for mine fires, with EPA's official recommendation of 
only a thin cap.
    The General Accounting Office (GAO) issued a report in April and 
July 2001 concerning the EPA's handling of the Ombudsman office. They 
concluded that EPA did not provide the Ombudsman with sufficient 
independence and that the EPA treated their Ombudsman much less 
independently than did other Federal agencies. They felt he should be 
allowed to choose his own staff, supervise them and manage his own 
budget. The GAO also said he should report to the Administrator and 
Congress like all other Federal Ombudsman. Senators and Congressman 
have expressed their support. Citizens and communities all over the 
United States have agreed. Thousands of signatures have been collected, 
and Federal Register comments were provided in 2001. Yet to no avail. 
As a matter of fact, all of their recommendations are covered in Senate 
Bill 606. Christine Todd Whitman refused to listen. She 
mischaracterized the GAO report and used that mischaracterization to 
fold the National Ombudsman under the Inspector General. She has 
ignored the pleas of the people. She has ignored the GAO 
recommendations. She has ignored the Senators and Congressman. She has 
boycotted meetings and ratified Region III's boycotting of our recent 
National Ombudsman hearing. Please stop this injustice and help us to 
regain our faith in the government in a time when it is most needed. 
Truth and honesty must prevail.
    The National Ombudsman Office is where we can have our complaints 
and concerns heard. He is a public advocate. Mr. Martin and his staff, 
Mr. Kaufman and Mr. Bell, did their best for many communities even 
though their hands were tied. I ask that you meet with Administrator 
Whitman and ask her to reconstitute the National Ombudsman Office under 
Robert Martin and pass S. 606 so that no EPA Administrator in the 
future can harm American communities as Christine Whitman has done. You 
are our last hope.
                               __________
                                  American Bar Association,
                                     Washington, DC., July 2, 2002.
Hon. James M. Jeffords,
Chairman, Committtee on Environment and Public Works,
U.S. Senate,
Washington, DC.
    Dear Mr. Chairman: On behalf of the American Bar Association 
(``ABA'') and its more than 400,000 members throughout the country, I 
write to express our support for the greater use of ombuds\1\ to 
receive, review, and resolve complaints involving public and private 
entities and of your committee's efforts to clarify the role of the EPA 
Ombudsman. Accordingly, we are pleased to submit these comments 
regarding S. 606, the ``Ombudsman Reauthorization Act of 2002,'' and we 
ask that this letter and attachment be included in the record of the 
June 25, 2002, hearing regarding this legislation.
---------------------------------------------------------------------------
    \1\ The term ombuds in this letter is intended to encompass all 
other forms of the word such as ombudsperson, ombuds officers, and 
ombudsman.
---------------------------------------------------------------------------
    S. 606 instructs the EPA Administrator to establish the Office of 
the Ombudsman of the Environmental Protection Agency (EPA) and then 
defines the duties, powers, and responsibilities of the ombudsman. As 
the ABA examined the establishment of ombuds in Federal, State, and 
local governments, academic institutions, and private organizations, it 
found that the role of the ombuds in these entities, how they function, 
and the issues they address vary widely and significantly. Individuals 
who come to ombuds for help cannot know what to expect, and the offices 
may be established in ways that compromise their effectiveness. In 
August 2001, the ABA House of Delegates adopted a formal policy 
endorsing Standards for the Establishment and Operation of Ombuds 
Offices (ABA Standards). Attached for your consideration is a copy of 
the ABA's resolution and report. The resolution expresses the ABA's 
official policy; the accompanying report is included for informational 
purposes only.
    The ABA adopted this policy to provide advice and guidance on the 
structure and operation of ombuds offices so that ombuds may better 
fulfill their functions and so that individuals who avail themselves of 
their aid may do so with greater confidence in the integrity of the 
process. All ombuds must operate with certain basic authorities and 
essential characteristics. The Standards clarify that independence, 
impartiality in conducting inquiries and investigations, and 
confidentiality are essential characteristics of all ombuds.

                       THE ROLE OF THE OMBUDSMAN

    An ombuds is a person who is authorized to receive complaints or 
questions confidentially about alleged acts, omissions, improprieties, 
and broader, systemic problems within the ombuds' defined jurisdiction 
and to address, investigate or otherwise examine these issues 
independently and impartially. The ABA believes that in order to 
properly fulfill its important functions, the ombuds must be given the 
appropriate power and authority.
    S. 606 contains a number of useful provisions designed to create a 
strong and effective EPA Ombudsman office. In particular, the ABA 
supports the provisions of S. 606 authorizing the ombudsman to examine 
records and documents (Sec. 2008(d)(2) and (3)) and requiring the 
ombudsman to publish periodic reports on the status of complaints filed 
with the ombudsman (Sec. 2008(e)(4)). The ABA also supports the 
provision granting the ombudsman the discretion to initiate action 
without receiving a complaint or question (Sec. 2008(d)(1)). While 
these provisions are useful as far as they go, the ABA believes that S. 
606 should be amended to grant the ombudsman greater discretion in 
determining whether to accept or act on a particular complaint or 
question, because the ombudsman is in the best position to determine 
whether a complaint has any merit. The ABA also suggests that the 
committee amend S. 606 to expressly authorize the ombudsman to initiate 
litigation when necessary to enforce a subpoena or to otherwise enforce 
or protect the responsibilities of the office.
    The ABA Standards state that an ombuds office should be established 
by a legislative enactment or publicly available written document 
``which clearly sets forth the role and jurisdiction of the ombuds'' 
and which authorizes the ombuds to engage in a variety of enumerated 
activities. To clearly set forth the role of the ombudsman, the ABA 
also recommends that S. 606 state whether the EPA Ombudsman is a 
``classical'' or ``advocate'' ombuds. A classical ombuds operates in 
the public sector addressing issues raised by the general public or 
internally, usually concerning the actions or policies of government 
entities or individuals. An advocate ombuds, like a classical, 
evaluates claims objectively but is authorized or required to advocate 
on behalf of individuals or groups found to be aggrieved and may issue 
reports to the legislature or a specific agency. In addition to stating 
whether the EPA Ombudsman is a classical or advocate ombuds, S. 606 
should also more clearly enumerate the activities that the ombudsman is 
expected to perform.
    Although an ombuds should be granted clear and appropriate powers, 
the ABA also believes that in order to ensure the ombuds' independence, 
impartiality, and confidentiality, it is necessary to establish certain 
limitations on the ombuds' authority. An ombuds works outside of line 
management structures and has no direct power to compel any decision. 
An ombuds should not, nor should an entity expect or authorize an 
ombuds to make, change, or set aside a law, policy, or administrative/
managerial decision nor to directly compel an entity or any person to 
make those changes. While an ombuds may expedite and facilitate the 
resolution of a complaint and recommend individual and systemic 
changes, an ombuds cannot compel an entity to implement the 
recommendations.
    The ABA also believes that when defining the powers of an ombuds, 
care must be taken to protect the rights of those who may be affected 
by the actions of the ombuds. Furthermore, since due process rights 
could well be implicated, it would not be appropriate for the ombuds' 
review to serve as the final determination for any disciplinary 
activity or civil action, nor as a determination of a violation of law 
or policy. An ombuds' inquiry or investigation is not a substitute for 
an administrative or judicial proceeding, and in such proceedings, the 
deciding official should not consider the ombuds' review or 
recommendations to be controlling. Instead, the deciding official must 
conduct a de novo examination of the matter.
    The ABA supports those provisions in S. 606 that seek to protect 
the existing due process rights of claimants, including the provisions 
stating that the legislation shall not limit any remedy or right of 
appeal (Sec. 2008(g)(1)) and the provision stating that the 
establishment of the EPA Office of Ombudsman shall not affect any 
procedure concerning grievances, appeals, or administrative matters 
under the legislation or any other law, including regulations (Sec. 
2008(g)(2)). In order to further protect the due process rights of the 
parties, however, the ABA recommends that S. 606 be amended to 
expressly state that the ombuds' review shall not make, change, or set 
aside a law, policy or administrative decision, make binding decisions 
or determine rights, or directly compel an entity or any person to 
implement the ombuds' recommendations. In addition, S. 606 should 
expressly state that the ombuds should not accept jurisdiction over an 
issue that is currently pending in a legal forum unless all parties and 
the presiding officer in that action explicitly consent, and it should 
state that an ombuds' inquiry or investigation does not substitute for 
an administrative or judicial proceeding.

                       ESSENTIAL CHARACTERISTICS

    The ABA believes that in order to permit an ombuds to properly 
discharge his or her duties, an ombuds program must promote the core 
qualities of independence, impartiality, and confidentiality. Although 
various provisions of S. 606 seek to address these issues regarding the 
EPA Office of Ombudsman, the ABA encourages the committee to amend the 
bill to reflect these characteristics more fully. Great care has to be 
exercised in establishing the structure of the ombuds to ensure that 
the independence, impartiality, and confidentiality essential to the 
ombuds are, in fact, achieved.

Independence
    To be credible and effective, the office of the ombuds must be 
independent in its structure, function, and appearance. Independence 
means that the ombuds must be free from interference in the legitimate 
performance of duties. In assessing whether an ombuds is independent, 
one key factor to consider is whether anyone subject to the ombuds' 
jurisdiction or anyone directly responsible for a person under the 
ombuds' jurisdiction can control or limit the ombuds' performance of 
duties. In addition, other key factors are whether such a person can, 
for retaliatory purposes, (1) eliminate the office, (2) remove the 
ombuds, or (3) reduce the office's budget or resources.
    As currently written, S. 606 includes a number of provisions aimed 
at promoting the independence of the EPA Ombudsman. In particular, S. 
606 grants the EPA Ombudsman the power to investigate any action of the 
EPA's Assistant Administrator for Solid Waste and Emergency Response on 
receipt of a complaint or in the ombudsman's discretion (Sec. 2008 
(d)(1)) and the power to examine any documents of the EPA and enter and 
inspect, without notice, any property under the EPA's administrative 
jurisdiction (Sec. 2008(d)(2)). In addition, S. 606 grants the EPA 
Ombudsman authority to request that the EPA Inspector General subpoena 
material documents or testimony (Sec. 2008(d)(3)), as well as the 
authority to administer a budget (Sec. 2008(d)(6)), appoint Associate 
Ombudsmen and evaluate and carry out personnel actions (Sec. 
2008(e)(1)), and maintain contact information different from other EPA 
offices (Sec. 2008(e)(2)), among other things.
    While these provisions will help promote the independence of the 
EPA Ombudsman, the ABA is concerned that they do not go far enough to 
guarantee the independence of the ombudsman. For example, the ABA is 
concerned that in order to subpoena persons or records, the ombudsman 
must request the assistance of the EPA Inspector General (Sec. 
2008(d)(3)). Because we believe that this is inconsistent with the 
ombudsman's independence, we encourage the committee to amend S. 606 to 
provide the ombudsman with independent subpoena authority. In addition, 
the ABA encourages the committee to consider other amendments that 
would contribute to the ombudsman's independence including new 
provisions that would create a set term of office, access to and 
resources for independent legal advice and counsel, prohibition of 
disciplinary actions against the ombudsman for performing the duties of 
the office, and removal only for cause.

Impartiality
    The ABA also believes that in order to be effective, an ombuds must 
be impartial. The ombuds' structural independence is the foundation 
upon which the ombuds' impartiality is built. If the ombuds is 
independent from line management and does not have administrative or 
other obligations or functions, the ombuds can act in an impartial 
manner. Acting in an impartial manner, as a threshold matter, means 
that the ombuds is free from initial bias and conflicts of interest in 
conducting inquiries and investigations. Impartiality does not, 
however, preclude the ombuds from developing an interest in securing 
the changes that are deemed necessary where the process demonstrates a 
need for change or from otherwise being an advocate on behalf of a 
designated constituency when the ombuds position is created as an 
``advocate'' ombuds. The ombuds, therefore, has the authority to become 
an advocate for change where the results of the inquiry or 
investigation demonstrate the need for such change.
    While S. 606 provides some structural independence, as noted above, 
the bill is silent with regard to the type of ombuds being created. The 
ABA encourages the clarification of the intended ombuds role by 
specifying whether the EPA Ombudsman is to be a classical or an 
advocate ombuds, and hence, whether the EPA Ombudsman is to be totally 
impartial or is to serve as an advocate for the designated 
constituency.

(3) Confidentiality
    The American Bar Association also believes that confidentiality is 
an essential characteristic of ombuds that permits the process to work 
effectively. Confidentiality promotes disclosure from reluctant 
complainants, elicits candid discussions by all parties, and provides 
an increased level of protection against retaliation to or by any 
party.
    Confidentiality must extend to all communications with the ombuds 
and all notes and records maintained by the ombuds in the performance 
of assigned duties. It begins when a communication is initiated with 
the ombuds to schedule an appointment or make a complaint or inquiry. 
Confidentiality may apply to the source of the communications and to 
the content of the communications. Individuals may not want the ombuds 
to disclose their identity but may want the ombuds to act on the 
information presented. An ombuds should discuss confidentiality and any 
exceptions with individuals who communicate with the office.
    S. 606 contains a sweeping confidentiality provision that states 
that the EPA Ombudsman ``shall maintain as confidential and privileged 
any and all communications concerning any matter pending, and the 
identities of any parties or witnesses appearing before the 
Ombudsman.'' (Sec. 2008(d)(5)). Unfortunately, this provision may be 
overly broad and appears to conflict with the Administrative Dispute 
Resolution Act (ADRA).\2\
---------------------------------------------------------------------------
    \2\ 5 U.S.C. Sec. 574
---------------------------------------------------------------------------
    In creating a confidentiality section in ADRA that is the most 
detailed of any Federal or State ADR statute, Congress explicitly 
stated its intent to give parties in federally related ADR proceedings 
assurance that their dispute resolution communications would generally 
be immune from discovery. Congress went on to define these protections 
in detail. ADRA forbids neutrals from disclosing such communications, 
and also states that the neutrals shall not ``be compelled to 
disclose'' the communications. The existing statute also guarantees 
certain due process protections, including prior notice to parties in 
any case where protected data are sought, an opportunity for the 
parties to contest disclosure before a Federal court, and a decision by 
the court reached under a balancing test based on specific statutory 
criteria. The ADRA goes on to say that a dispute resolution 
communication which is between a neutral and a party and which may not 
be disclosed under the confidentiality provisions of the ADRA shall 
also be exempt from disclosure under the Freedom of Information Act.
    While the ABA supports the general confidentiality principle 
outlined in S. 606, we believe that Section 2008(d)(5) should be 
amended to comport with the confidentiality provisions of the ADRA. 
ADRA represents a careful balance between open government, oversight, 
and confidentiality, in which Congress makes clear the standards and 
procedures that should govern whenever disputed issues of 
confidentiality arise in agency-related ADR, which includes the 
activities of an agency ombuds. The ADRA's stated intent is clear: to 
assure parties to ADR proceedings involving Federal programs that 
communications they make in those proceedings will not later be used 
against them. Its language precluding voluntary and compulsory 
disclosure is explicit, its coverage broad, its exceptions narrowly 
drawn, and its procedures spelled out in detail.
    Congress established the EPA Ombudsman to provide help to the 
public in resolving issues and concerns about EPA's solid and hazardous 
waste programs. Because an ombuds works for the resolution of an 
individual issue and, where necessary, makes recommendations for the 
improvement of the general administration of the entity, establishing 
an ombuds is appropriate. In order to be credible and effective, the 
ABA believes that the EPA Office of the Ombudsman must be truly 
independent in structure, form, and appearance; must be impartial; and 
must promote and protect confidentiality consistent with the ADRA. In 
order to ensure the effectiveness of the EPA Ombudsman, we urge you to 
adopt the amendments outlined above.
    Thank you for considering the views of the ABA on these important 
matters. If you would like more information regarding the ABA's 
positions on these issues, please contact our legislative counsel for 
administrative law issues, Larson Frisby, at (202) 662-1098.
            Sincerely,
                                                   Robert D. Evans.
                                 ______
                                 
Approved by the ABA House of Delegates
107D
August 7, 2001
American Bar Association, Section of Administrative Law and Regulatory 
   Practice, Section of Dispute Resolution, Section of Business Law, 
Section of State and Local Government Law, Government and Public Sector 
  Lawyers Division, Senior Lawyers Division, Commission on the Legal 
  Problems of the Elderly, National Conference of Administrative Law 
            Judges, Standing Committee on Environmental Law

                            RECOMMENDATION*

---------------------------------------------------------------------------
    *The ``Recommendation'' and the ``Standards,'' but not the attached 
``Report,'' constitute official ABA policy.
---------------------------------------------------------------------------
    RESOLVED, that the American Bar Association supports the greater 
use of ``ombuds'' to receive, review, and resolve complaints involving 
public and private entities.
    FURTHER RESOLVED, that the American Bar Association endorses the 
Standards for the Establishment and Operation of Ombuds Offices dated 
August 2001.
    STANDARDS\1\ FOR THE ESTABLISHMENT AND OPERATION OF OMBUDS OFFICES
---------------------------------------------------------------------------
    \1\ These standards expand on a 1969 ABA resolution to address 
independence, impartiality, and confidentiality as essential 
characteristics of ombuds who serve internal constituents, ombuds in 
the private sector, and ombuds who also serve as advocates for 
designated populations.
---------------------------------------------------------------------------
    PREAMBLE
    Ombuds\2\ receive complaints and questions from individuals 
concerning people within an entity or the functioning of an entity. 
They work for the resolution of particular issues and, where 
appropriate, make recommendations for the improvement of the general 
administration of the entities they serve. Ombuds protect: the 
legitimate interests and rights of individuals with respect to each 
other; individual rights against the excesses of public and private 
bureaucracies; and those who are affected by and those who work within 
these organizations.
---------------------------------------------------------------------------
    \2\ The term ombuds in this report is intended to encompass all 
other forms of the word, such as ombudsperson, ombuds officer, and 
ombudsman, a Swedish word meaning agent or representative. The use of 
ombuds here is not intended to discourage others from using other 
terms.
---------------------------------------------------------------------------
    Federal, State and local governments, academic institutions, for 
profit businesses, non-profit organizations, and sub-units of these 
entities have established ombuds offices, but with enormous variation 
in their duties and structures. Ombuds offices so established may be 
placed in several categories: A Classical Ombuds operates in the public 
sector addressing issues raised by the general public or internally, 
usually concerning the actions or policies of government entities or 
individuals. An Organizational Ombuds may be located in either the 
public or private sector and ordinarily addresses problems presented by 
members, employees, or contractors of an entity concerning its actions 
or policies. Both types may conduct inquiries or investigations and 
suggest modifications in policies or procedures. An Advocate Ombuds may 
be located in either the public or private sector and like the others 
evaluates claims objectively but is authorized or required to advocate 
on behalf of individuals or groups found to be aggrieved.
    As a result of the various types of offices and the proliferation 
of different processes by which the offices operate, individuals who 
come to the ombuds office for assistance may not know what to expect, 
and the offices may be established in ways that compromise their 
effectiveness. These standards were developed to provide advice and 
guidance on the structure and operation of ombuds offices so that 
ombuds may better fulfill their functions and so that individuals who 
avail themselves of their aid may do so with greater confidence in the 
integrity of the process. Practical and political considerations may 
require variations from these Standards, but it is urged that such 
variations be eliminated over time.
    The essential characteristics of an ombuds are:
     idependence
     impartiality in conducting inquiries and investigations, 
and
     confidentiality.

                      ESTABLISHMENT AND OPERATIONS

    A. An entity undertaking to establish an ombuds should do so 
pursuant to a legislative enactment or a publicly available written 
policy (the ``charter'') which clearly sets forth the role and 
jurisdiction of the ombuds and which authorizes the ombuds to:
    (1) receive complaints and questions about alleged acts, omissions, 
improprieties, and systemic problems within the ombuds's jurisdiction 
as defined in the charter establishing the office
    (2) exercise discretion to accept or decline to act on a complaint 
or question
    (3) act on the ombuds's own initiative to address issues within the 
ombuds's prescribed jurisdiction
    (4) operate by fair and timely procedures to aid in the just 
resolution of a complaint or problem
    (5) gather relevant information
    (6) resolve issues at the most appropriate level of the entity
    (7) function by such means as:

          (a) conducting an inquiry
          (b) investigating and reporting findings
          (c) developing, evaluating, and discussing options available 
        to affected individuals
          (d) facilitating, negotiating, and mediating
          (e) making recommendations for the resolution of an 
        individual complaint or a systemic problem to those persons who 
        have the authority to act upon them
          (f) identifying complaint patterns and trends
          (g) educating
          (h) issuing periodic reports, and
          (i) advocating on behalf of affected individuals or groups 
        when specifically authorized by the charter

    (8) initiate litigation to enforce or protect the authority of the 
office as defined by the charter, as otherwise provided by these 
standards, or as required by law.

                             QUALIFICATIONS

    B. An ombuds should be a person of recognized knowledge, judgment, 
objectivity, and integrity. The establishing entity should provide the 
ombuds with relevant education and the periodic updating of the 
ombuds's qualifications.

            INDEPENDENCE, IMPARTIALITY, AND CONFIDENTIALITY

    C. To ensure the effective operation of an ombuds, an entity should 
authorize the ombuds to operate consistently with the following 
essential characteristics. Entities that have established ombuds 
offices that lack appropriate safeguards to maintain these 
characteristics should take prompt steps to remedy any such deficiency.
    (1) Independence. The ombuds is and appears to be free from 
interference in the legitimate performance of duties and independent 
from control, limitation, or a penalty imposed for retaliatory purposes 
by an official of the appointing entity or by a person who may be the 
subject of a complaint or inquiry.
    In assessing whether an ombuds is independent in structure, 
function, and appearance, the following factors are important: whether 
anyone subject to the ombuds's jurisdiction or anyone directly 
responsible for a person under the ombuds's jurisdiction (a) can 
control or limit the ombuds's performance of assigned duties or (b) 
can, for retaliatory purposes, (1) eliminate the office, (2) remove the 
ombuds, or (3) reduce the budget or resources of the office.
    (2) Impartiality in Conducting Inquiries and Investigations. The 
ombuds conducts inquiries and investigations in an impartial manner, 
free from initial bias and conflicts of interest. Impartiality does not 
preclude the ombuds from developing an interest in securing changes 
that are deemed necessary as a result of the process, nor from 
otherwise being an advocate on behalf of a designated constituency. The 
ombuds may become an advocate within the entity for change where the 
process demonstrates a need for it.
    (3) Confidentiality. An ombuds does not disclose and is not 
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 are confidential and not subject 
to disclosure outside the ombuds's office. An ombuds does not reveal 
the identity of a complainant without that person's express consent. An 
ombuds may, however, at the ombuds's discretion disclose non-
confidential information and may disclose confidential information so 
long as doing so does not reveal its source. An ombuds should discuss 
any exceptions to the ombuds's maintaining confidentiality with the 
source of the information.\3\
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    \3\ A classical ombuds should not be required to discuss 
confidentiality with government officials and employees when applying 
this paragraph to the extent that an applicable statute makes clear 
that such an individual may not withhold information from the ombuds 
and that such a person has no reasonable expectation of confidentiality 
with respect to anything that person provides to the ombuds.
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                  LIMITATIONS ON THE OMBUDS' AUTHORITY

    D. An ombuds should not, nor should an entity expect or authorize 
an ombuds to:
    (1) make, change or set aside a law, policy, or administrative 
decision
    (2) make binding decisions or determine rights
    (3) directly compel an entity or any person to implement the 
ombuds's recommendations
    (4) conduct an investigation that substitutes for administrative or 
judicial proceedings
    (5) accept jurisdiction over an issue that is currently pending in 
a legal forum unless all parties and the presiding officer in that 
action explicitly consent
    (6) address any issue arising under a collective bargaining 
agreement or which falls within the purview of any existing Federal, 
State, or local labor or employment law, rule, or regulation, unless 
the ombuds is authorized to do so by the collective bargaining 
agreement or unless the collective bargaining representative and the 
employing entity jointly agree to allow the ombuds to do so, or if 
there is no collective bargaining representative, the employer 
specifically authorizes the ombuds to do so, or
    (7) act in a manner inconsistent with the grant of and limitations 
on the jurisdiction of the office when discharging the duties of the 
office of ombuds.

                          REMOVAL FROM OFFICE

    E. The charter that establishes the office of the ombuds should 
also provide for the discipline or removal of the ombuds from office 
for good cause by means of a fair procedure.

                                 NOTICE

    F. These standards do not address the issue whether a communication 
to the ombuds will be deemed notice to anyone else including any entity 
in or for which the ombuds acts. Important legal rights and liabilities 
may be affected by the notice issue.

                            CLASSICAL OMBUDS

    G. A classical ombuds is a public sector ombuds who receives 
complaints from the general public or internally and addresses actions 
and failures to act of a government agency, official, or public 
employee. In addition to and in clarification of the standards 
contained in Paragraphs A-F, a classical ombuds:
    (1) should be authorized to conduct independent and impartial 
investigations into matters within the prescribed jurisdiction of the 
office
    (2) should have the power to issue subpoenas for testimony and 
evidence with respect to investigating allegations within the 
jurisdiction of the office
    (3) should be authorized to issue public reports
    (4) should be authorized to advocate for change both within the 
entity and publicly
    (5) should, if the ombuds has general jurisdiction over two or more 
agencies, be established by legislation\4\ and be viewed as a part of 
and report to the legislative branch of government.
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    \4\ The 1969 ABA Resolution, which remains ABA policy, provided 
that a classical ombuds should be ``appoint[ed] by the legislative body 
or . . . by the executive with confirmation by the designated 
proportion of the legislative body, preferably more than a majority, 
such as two thirds.''
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                         ORGANIZATIONAL OMBUDS

    H. An organizational ombuds facilitates fair and equitable 
resolutions of concerns that arise within the entity. In addition to 
and in clarification of the standards contained in Paragraphs A-F, an 
organizational ombuds should:
    (1) be authorized to undertake inquiries and function by informal 
processes as specified by the charter
    (2) be authorized to conduct independent and impartial inquiries 
into matters within the prescribed jurisdiction of the office
    (3) be authorized to issue reports
    (4) be authorized to advocate for change within the entity.

                            ADVOCATE OMBUDS

    I. An advocate ombuds serves as an advocate on behalf of a 
population that is designated in the charter. In addition to and in 
clarification of the standards described in Paragraphs A-F, an advocate 
ombuds should:
    (1) have a basic understanding of the nature and role of advocacy
    (2) provide information, advice, and assistance to members of the 
constituency
    (3) evaluate the complainant's claim objectively and advocate for 
change relief when the facts support the claim
    (4) be authorized to represent the interests of the designated 
population with respect to policies implemented or adopted by the 
establishing entity, government agencies, or other organizations as 
defined by the charter, and
    (5) be authorized to initiate action in an administrative, 
judicial, or legislative forum when the facts warrant.

                                 ______
                                 
                                 Report
    The American Bar Association (ABA) adopted a resolution in 1969 
recommending that State and local governments consider establishing 
ombuds who would be authorized to inquire into administrative action 
and to make public criticism. That policy also recommended that the 
statute or ordinance creating the ombuds contain 12 essential points. 
The ABA then adopted a resolution in 1971 recommending that the Federal 
Government experiment with the establishment of ombudsmen for certain 
geographical areas, specific agencies, or for limited phases of Federal 
activities.
    Over the past three decades, and particularly recently, an 
extraordinary growth in the number and type of ombuds\5\ has taken 
place. Congress has established several ombuds in various programs. In 
addition to specific legislation concerning ombuds, the Administrative 
Dispute Resolution Act authorizes Federal agencies to use ``ombuds.''
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    \5\ The term ombuds in this report is intended to encompass all 
other forms of the word such as ombudsperson, ombuds officers, and 
ombudsman, a Swedish word meaning agent or representative. The use of 
ombuds here is not intended to discourage others from using other 
terms.
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    Federal, State and local governments, academic institutions, for 
profit businesses, non-profit organizations, and sub-units of these 
entities have established ombuds offices, but with enormous variation 
in their duties and structures. Ombuds offices so established may be 
placed in several categories. A Classical Ombuds operates in the public 
sector addressing issues raised by the general public or internally, 
usually concerning the actions or policies of government entities or 
individuals. An Organizational Ombuds may be located in either the 
public or private sector and ordinarily addresses problems presented by 
members, employees, or contractors of an entity concerning its actions 
or policies. Both types may conduct inquiries or investigations and 
suggest modifications in policies or procedures. An Advocate Ombuds may 
be located in either the public or private sector, and like the others 
evaluates claims objectively but is authorized or required to advocate 
on behalf of individuals or groups found to be aggrieved.
    As a result of the various types of offices and the proliferation 
of different processes by which the offices operate, individuals who 
come to the ombuds's office for assistance may not know what to expect, 
and the offices may be established in ways that compromise their 
effectiveness. These standards were developed to provide advice and 
guidance on the structure and operation of ombuds offices to the end 
that ombuds may better fulfill their functions and so that individuals 
who avail themselves of their aid may do so with greater confidence in 
the integrity of the process.
    The ABA's Board of Governors establishes legislative and 
governmental priorities annually. Based on its importance to society, 
to the practice of law, and in the administration of justice, one of 
the year 2001 priorities is alternative dispute resolution. The ABA 
supports the greater use of alternative dispute resolution by private 
parties, government agencies, and the courts ``as a necessary and 
welcome component of America's civil justice system, so long as all 
parties' legal rights and remedies are protected.'' As a protector of 
individual rights against the excesses of public and private 
bureaucracies, an ombuds receives complaints and questions from 
individuals concerning the functioning of an entity, works for the 
resolution of particular issues, and where necessary, makes 
recommendations for the improvement of the general administration of 
the entity. As an independent, impartial, and confidential complaint 
handler, an ombuds serves as an alternative means of dispute resolution 
a means by which issues may be raised, considered, and resolved.
    Consistent with ABA priorities, the Sections of Administrative Law 
and Regulatory Practice and of Dispute Resolution have worked together 
and appointed a steering committee consisting of representatives from 
the Coalition of Federal Ombudsmen, the National Association of State 
Ombudsman Programs, the International Ombudsman Institute (IOI 
subsequently withdrew), The Ombudsman Association, the United States 
Ombudsman Association, and the University and College Ombuds 
Association, as well as other experts in the field. The committee 
consulted with numerous ombuds from Federal, State, and local agencies, 
academic institutions, companies, and non-profit organizations. 
Further, it solicited, received, and considered comments from the 
international community of ombuds. Based on the steering committee's 
work and following extensive consultation with the Commission on Legal 
Problems of the Elderly, the Section of Business Law, and the Section 
of Labor and Employment Law, the Sections of Administrative Law and 
Regulatory Practice and Dispute Resolution have developed a resolution 
encouraging the use of ombuds in the public and private sectors that 
adhere to the Standards for the Establishment and Operation of the 
Ombudsman Offices (Standards).
    The Resolution and Standards broaden the ABA's existing policy to 
address ombuds who are appointed within government, academia, and the 
private sector, and who respond to complaints from individuals from 
within and outside the entity. Further, they clarify the means by which 
various types of ombuds operate.
    For Federal, State, and local governments that want to create a 
Classical ombuds who would be authorized to address, investigate or 
inquire into administrative action and to criticize agencies, 
officials, and public employees, the ABA's 1969 policy continue to 
serve as a model.\6\ This Resolution and the Standards clarify that 
independence, impartiality in conducting inquiries and investigations, 
and confidentiality are essential characteristics of all ombuds. Ombuds 
must operate consistently with these essential characteristics to 
discharge the duties of the office effectively. Practical and political 
considerations may require variations from these Standards, but it is 
urged that such variations be eliminated over time.
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    \6\ The 12 essential characteristics that were identified in the 
original ABA resolution continue to have vitality and remain ABA 
policy. They are: (1) authority of the ombudsman to criticize all 
agencies, officials, and public employees except courts and their 
personnel, legislative bodies and their personnel, and the chief 
executive and his personal staff; (2) independence of the ombudsman 
from control by any other officer, except for his responsibility to the 
legislative body; (3) appointment by the legislative body or 
appointment by the executive with confirmation by the designated 
proportion of the legislative body, preferably more than a majority of 
the legislative body, such as two thirds; (4) independence of the 
ombudsman through a long term, not less than 5 years, with freedom from 
removal except for cause, determined by more than a majority of the 
legislative body; (5) a high salary equivalent to that of a designated 
top officer; (6) freedom of the ombudsman to employ his own assistants 
and to delegate to them, without restrictions of civil service and 
classifications acts; (7) freedom of the ombudsman to investigate any 
act or failure to act by any agency, official, or public employee; (8) 
access of the ombudsman to all public records he finds relevant to an 
investigation; (9) authority to inquire into fairness, correctness of 
findings, motivation, adequacy of reasons, efficiency, and procedural 
propriety of any action or inaction by any agency, official, or public 
employee; (10) discretionary power to determine what complaints to 
investigate and to determine what criticisms to make or to publicize; 
(11) opportunity for any agency, official, or public employee 
criticized by the ombudsman to have advance notice of the criticism and 
to publish with the criticism an answering statement; and, (12) 
immunity of the ombudsman and his staff from civil liability on account 
of official action.
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                             THE RESOLUTION

    The resolution recognizes the value of the ombuds in the public and 
private sectors. For example, the Organizational Ombuds in one 
prominent company resolves several hundred workplace matters every 
year; that experience is echoed by other companies and increasingly by 
government agencies and academic institutions. Classical Ombuds have 
investigated and issued reports on important issues that need to be 
addressed by the body politic; a recent prominent example concerned 
prison conditions. Advocate Ombuds have been successful in protecting 
vulnerable populations, such as children and residents of nursing 
homes. As a result, the Resolution recognizes the contribution these 
offices make in providing a means by which complaints are received, the 
underlying facts developed through an informal inquiry or a more formal 
investigation, and those complaints found to have merit are suitably 
addressed in a means that fits the situation. The Resolution, 
therefore, supports the greater use of ombuds.
    The Resolution also recognizes that entities that create ombuds 
offices should adhere to the Standards for the establishment and 
operations of the ombuds offices. The fundamental underlying premise of 
this resolution is that all ombuds must operate with certain basic 
authorities and essential characteristics. The effort here is to 
provide practical advice and guidance on the structure and operation of 
ombuds offices so that ombuds may better fulfill their functions and so 
that individuals who avail themselves of their aid may do so with 
greater confidence in the integrity of the process.

                               STANDARDS

Section A. Establishment and Operations
    An ombuds is a person who is authorized to receive complaints or 
questions confidentially about alleged acts, omissions, improprieties, 
and broader, systemic problems within the ombuds's defined jurisdiction 
and to address, investigate, or otherwise examine these issues 
independently and impartially.
    Importantly, the ombuds's jurisdiction who complains and who or 
what are complained about needs to be defined in advance, setting out 
the scope of the duties and authority. The ombuds's jurisdiction must 
be defined in an official act that establishes the office, which is 
appropriately called the ``charter'' in the standards. The charter may 
be a legislative enactment\7\ or a publicly available written policy. 
The jurisdiction may be limited to a defined constituency or 
population. For example, a State ombuds may receive complaints or 
questions from any person, while a university student ombuds may 
receive complaints or questions only from students at that university, 
and a long-term care ombuds has jurisdiction only to resolve complaints 
initiated by or on behalf of residents receiving long-term care.
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    \7\ The ``legislative enactment'' might be in a constitution, 
statute, local government charter, or local ordinance depending on the 
establishing jurisdiction.
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    The ombuds determines whether to accept or to act on a particular 
complaint or question. The ombuds also has the discretion to initiate 
action without receiving a complaint or question. An ombuds may 
determine that the complaint is without merit. Or, an ombuds may 
receive a complaint or question on a specific topic and conduct an 
inquiry on a broader or different scope.
    Appropriate subjects for an ombuds to review include allegations of 
unfairness, maladministration, abuse of power, abuse of discretion, 
discourteous behavior or incivility, inappropriate application of law 
or policy, inefficiency, decision unsupported by fact, and illegal or 
inappropriate behavior. It is essential that the ombuds operate by fair 
procedures to aid in the just resolution of the matter. Ombuds need 
access to all information relevant to a complaint or a question so that 
the review is fair and credible, and the charter should authorize 
access to all relevant information. The entity must be responsible for 
protecting those seeking assistance from or providing information to 
the ombuds from personal, professional, or economic retaliation, loss 
of privacy, or loss of relationships.
    An ombuds may make a formal or informal report of results and 
recommendations stemming from a review or investigation. If such a 
report is issued, the ombuds should generally consult with an 
individual or group prior to issuing a report critical of that 
individual or group, and include their comments with the report. 
Moreover, the ombuds should communicate the outcome, conclusion or 
resolution of a complaint or an inquiry to the complainant and may also 
communicate with other concerned entities or individuals.
    In addition, to ensure the office's accountability, an ombuds 
should issue and publish periodic reports summarizing the ombuds's 
findings and activities. This may include statistical information about 
the number of contacts with the ombuds, subjects that the ombuds 
addressed, evaluation by complainants, etc. These reports may be done 
annually, biannually, or more frequently.
    In receiving complaints or questions and examining problems, the 
ombuds may use a variety of dispute resolution and other techniques. 
These processes include: conducting an inquiry; investigating and 
reporting findings; developing, evaluating, and discussing the options 
which may be available for remedies or redress; facilitating, 
negotiating, and mediating; making recommendations for the resolution 
of an individual complaint or a systemic problem to those persons who 
have authority to act on them; identifying complaint patterns and 
trends; and educating.
    As necessary, the ombuds may advocate on behalf of affected 
individuals or groups when authorized by the charter and the situation 
warrants that action. An ombuds may initiate litigation to enforce or 
protect the authority of the office. For example, if an ombuds issues a 
subpoena and the subpoena is ignored, the ombuds should be able to 
initiate litigation to compel a response. In addition, an ombuds may 
initiate litigation as otherwise provided by these standards or as 
required by law. For example, an advocate ombuds should be authorized 
to initiate action in an administrative, judicial, or legislative forum 
when the facts warrant.
    An ombuds uses the powers of reason and persuasion to help resolve 
matters. The goal of the ombuds's efforts is to provide a path to 
fairness and justice. Therefore, the ombuds's quest is to seek the fair 
and just resolution of the matter.

                       SECTION B. QUALIFICATIONS

    An ombuds should be a person of recognized knowledge, judgment, 
objectivity, and integrity. The establishing entity should provide the 
ombuds with relevant education and the periodic updating of the 
ombuds's qualifications.

                SECTION C. THE ESSENTIAL CHARACTERISTICS

    The original 1969 resolution contained 12 essentials for the ombuds 
described in it. These have been distilled and expanded in the 
Standards. The core qualities are independence, impartiality in 
conducting inquiries and investigations, and confidentiality. Without 
them, an ombuds cannot discharge the duties of the office effectively. 
The Standards therefore provide that an entity should authorize an 
ombuds it establishes to operate consistently with these essential 
characteristics to ensure the effective operation of the duties of the 
office. The Standards also recognize, however, that some entities may 
have already established offices that lack appropriate safeguards to 
comply fully with the characteristics. The Standards then provide that 
such entities should take prompt steps to remedy any such deficiency.
1. Independence in structure, function, and appearance
    To be credible and effective, the office of the ombuds is 
independent in its structure, function, and appearance. Independence 
means that the ombuds is free from interference in the legitimate 
performance of duties and independent from control, limitation, or a 
penalty imposed for retaliatory purposes by an official of the 
appointing entity or by a person who may be the subject of a complaint 
or inquiry. In assessing whether an ombuds is independent, the 
following factors are important: whether anyone subject to the ombuds's 
jurisdiction or anyone directly responsible for a person under the 
ombuds's jurisdiction (a) can control or limit the ombuds's performance 
of duties, or (b) can, for retaliatory purposes, (1) eliminate the 
office, (2) remove the ombuds, or (3) reduce the office's budget or 
resources.
    Historically, ombuds were created in parliamentary systems and were 
established in the constitution or by statute, appointed by the 
legislative body, and had a guarantee of independence from the control 
of any other officer, except for responsibility to the legislative 
body. This structure remains a model for ensuring independence, and a 
number of States have followed it. In more recent times, however, 
ombuds have been created by public officials without legislation, by 
regulation or decree, and by private entities. Ensuring the 
independence of the ombuds is equally important in these instances, but 
will require other measures.\8\
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    \8\ In the United States since the late 1960's, a number of other 
ways have been developed to ensure independence. Examples of approaches 
that contribute to an ombuds's independence include: establishment of 
the office through a formal act of a legislature or official governing 
body of an organization; establishment outside the entity over which 
the ombuds has jurisdiction; a direct reporting relationship to a 
legislative body, the official governing body of an organization or the 
chief executive; designation as a neutral who is unaligned and 
objective; a broadly defined jurisdiction not limited to one part of 
the entity or one subject matter; appointment or removal of the ombuds 
free of influence from potential subjects of a complaint or inquiry; a 
set term of office; no reporting relationship to someone with assigned 
duties that conflict with the ombuds's role; no assignment of duties 
other than that of the ombuds function; specifically allocated budget 
and sufficient resources to perform the function; freedom to appoint, 
direct, and remove staff; sufficient stature in the organization to be 
taken seriously by senior officials; placement in an organization at 
the highest possible level and at least above the heads of units likely 
to generate the most complaints; discretion to initiate and pursue 
complaints and inquiries; access to and resources for independent legal 
advice and counsel; prohibition of disciplinary actions against the 
ombuds for performing the duties of the office; removal only for cause; 
provision of an employment contract that the ombuds will receive a 
significant severance provision if terminated without good cause.
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    Great care has to be exercised in establishing the ombuds structure 
to ensure that the independence described in the resolution is, in 
fact, achieved. Choosing which of these approaches are appropriate will 
depend on the environment. The instrument used to establish 
independence should be the strongest available and should guarantee the 
independence of the ombuds from control by any other person.
    The 12 essential characteristics of the 1969 ABA Resolution 
continue to serve as the model for an ombuds reporting to the 
legislative branch of government who is authorized to investigate 
administrative action, help provide legislative oversight, and offer 
criticism of agencies from an external perspective. While there are a 
number of potential avenues of achieving independence, experience on 
the State and local level has demonstrated rather consistently that 
unless there is a structural independence for these ombuds akin to the 
1969 ABA Resolution that independence will not be accomplished and the 
office will not be able to function as envisioned in this resolution 
and the accompanying standards.
    Structuring independence for ombuds who serve inside organizations 
and classical ombuds who address issues within a single program or 
agency require similar care. These elements should be in the charter. 
The ombuds position should be explicitly defined and established as a 
matter of organizational policy, authorized at the highest levels of 
the organization; the ombuds should have access to the chief executive 
officer, senior officers and the oversight body or board of directors 
of the organization; the ombuds should also have access to all 
information within the organization, except as restricted by law; and 
the ombuds should have access to resources for independent legal advice 
and counsel.
    The Standards recognize that at this time there are ombuds who have 
not achieved this goal. The Standards urge and anticipate that these 
variations will be eliminated over time.
2. Impartiality in conducting inquiries and investigations
    The ombuds's structural independence is the foundation upon which 
the ombuds's impartiality is built. If the ombuds is independent from 
line management and does not have administrative or other obligations 
or functions, the ombuds can act in an impartial manner.
    Acting in an impartial manner, as a threshold matter, means that 
the ombuds is free from initial bias and conflicts of interest in 
conducting inquiries and investigations. Acting in an impartial manner 
also requires that the ombuds be authorized to gather facts from 
relevant sources and apply relevant policies, guidelines, and laws, 
considering the rights and interests of all affected parties within the 
jurisdiction, to identify appropriate actions to address or resolve the 
issue.
    The ombuds conducts inquiries and investigations in an impartial 
manner. An ombuds may determine that a complaint is without merit and 
close the inquiry or investigation without further action. If the 
ombuds finds that the complaint has merit, the ombuds makes 
recommendations to the entity and/or seeks resolution for a fair 
outcome. Impartiality does not, however, preclude the ombuds from 
developing an interest in securing the changes that are deemed 
necessary where the process demonstrates a need for change nor from 
otherwise being an advocate on behalf of a designated constituency. The 
ombuds therefore has the authority to become an advocate for change 
where the results of the inquiry or investigation demonstrate the need 
for such change. For example, when an ombuds identifies a systemic 
problem, it would be appropriate for the ombuds to advocate for changes 
to correct the problem. An advocate ombuds may initiate action and 
therefore serve as an advocate on behalf of a designated population 
with respect to a broad range of issues and on specific matters when 
the individual or group is found to be aggrieved. But, when determining 
the facts, the ombuds must act impartially.
3. Confidentiality
    Confidentiality is an essential characteristic of ombuds that 
permits the process to work effectively. Confidentiality promotes 
disclosure from reluctant complainants, elicits candid discussions by 
all parties, and provides an increased level of protection against 
retaliation to or by any party. Confidentiality is a further factor 
that distinguishes ombuds from others who receive and consider 
complaints such as elected officials, human resource personnel, 
government officials, and ethics officers.
    Confidentiality extends to all communications with the ombuds\9\ 
and to all notes and records maintained by the ombuds in the 
performance of assigned duties. It begins when a communication is 
initiated with the ombuds to schedule an appointment or make a 
complaint or inquiry. Confidentiality may apply to the source of the 
communications and to the content of the communications. Individuals 
may not want the ombuds to disclose their identity but may want the 
ombuds to act on the information presented. Therefore, an ombuds does 
not reveal the identity of a complainant without that person's consent. 
The ombuds may, however, disclose confidential information so long as 
doing so does not compromise the identity of the person who supplied 
it. It should be emphasized that the decision whether or not to 
disclose this information belongs to the ombuds, and it would not be 
appropriate for anyone to demand that the ombuds disclose such 
information, except as required by statute. To the extent that an 
ombuds may not maintain confidentiality, the ombuds should discuss 
those exceptions with individuals who communicate with the office.
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    \9\ For example, the Model Ombudsman Statute for State Governments 
that was developed by the Ombudsman Committee of the Section of 
Administrative Law and Regulatory Practice in 1974 directs the 
ombudsman to ``maintain secrecy in respect to all matters and the 
identities of the complainants or witnesses coming before him.'' See, 
Bernard Frank, State Ombudsman Legislation in the United States, 29 U. 
Miami L.R. 379 (1975).
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    The authorizing entity should allow the ombuds to provide 
confidentiality of the identity of persons who communicate with the 
ombuds and of information provided in confidence. The authorizing 
entity should not seek information relating to the identity of 
complainants nor seek access to the ombuds's notes and records.
    Providing for confidentiality and protection from subpoena in a 
statute is particularly important because, where statutes have not 
provided confidentiality, State courts have not consistently recognized 
an ombuds privilege nor granted protective orders to preserve the 
confidentiality of communication made to ombuds. One Federal district 
court, Shabazz v. Scurr, 662 F. Supp. 90 (S.D. Iowa 1987), recognized a 
limited privilege under Federal law for an ombuds with a State 
statutory privilege. The only Federal circuit court to have addressed 
the issue, Carman v. McDonnell Douglas Corp., 114 F. 3d 790 (8th Cir. 
1997), failed to recognize an ombuds privilege.
    Short of explicit statutory authority, ombuds offices should adopt 
written policies that provide the fullest confidentiality within the 
law. These policies should be publicly available, broadly disseminated, 
and widely publicized. Several existing model ombuds acts and policies 
of ombuds organizations address confidentiality.
    An ombuds will rarely, if ever, be privy to something that no one 
else knows. Therefore, providing confidentiality protection to the 
ombuds allows the ombuds to perform assigned duties while at the same 
time, society continues to have access to the underlying facts. As 
evidenced by the statutes and policies that have been developed, there 
may be instances in which other, competing societal interests dictate 
that the ombuds must disclose some information. If an individual speaks 
about intending harm to himself or herself or others, an entity may 
require an ombuds to disclose this information. Moreover, an ombuds may 
be compelled by protective service laws or professional reporting 
requirements to report suspected abuse.
Section D. Limitations on the Ombuds' authority
    An ombuds works outside of line management structures and has no 
direct power to compel any decision. The office is established by the 
charter with the stature to engender trust and to help resolve 
complaints at the most appropriate level of the entity. To ensure the 
ombuds' independence, impartiality, and confidentiality, it is 
necessary to establish certain limitations on the ombuds' authority.
    An ombuds should not, nor should an entity expect or authorize an 
ombuds to make, change, or set aside a law, policy or administrative/
managerial decision, nor to directly compel an entity or any person to 
make those changes. While an ombuds may expedite and facilitate the 
resolution of a complaint and recommend individual and systemic 
changes, an ombuds cannot compel an entity to implement the 
recommendations.
    It is essential that an ombuds operate by fair procedures which 
means that the actions taken will likely vary with the nature of the 
concern, and that care must be taken to protect the rights of those who 
may be affected by the actions of an ombuds. Furthermore, since due 
process rights could well be implicated, it would not be appropriate 
for the ombuds's review to serve as the final determination for any 
disciplinary activity or civil action, nor as a determination of a 
violation of law or policy. An ombuds's inquiry or investigation does 
not substitute for an administrative or judicial proceeding. In an 
administrative or judicial proceeding, the deciding official should not 
consider the ombuds's review or recommendations to be controlling. 
Rather, the deciding official must conduct a de novo examination of the 
matter.
    Moreover, it would not be appropriate for the ombuds to act as an 
appellate forum when a complainant is dissatisfied with the results in 
a formal adjudicatory or administrative proceeding. Thus, an ombuds 
should not take up a specific issue that is pending in a legal forum 
without the concurrence of the parties and the presiding officer. It 
may, however, be fully appropriate for an ombuds to inquire into 
matters that are related to a controversy that is in litigation so long 
as they are not the subject of the suit.
    Further, an ombuds should not address, nor should an entity expect 
or authorize an ombuds to address, any issue that is the subject of a 
collective bargaining agreement. There are two potential exceptions to 
this general prohibition: An ombuds may address issues concerning 
employees who have a lawfully designated collective bargaining 
agreement if: (1) the ombuds is authorized to do so by the collective 
bargaining agreement covering the employees or (2) the collective 
bargaining representative and the employing entity jointly agree to 
allow the ombuds to do so.
    Even where there is no collective bargaining agreement, the 
involvement of an ombuds in matters that fall within the purview of 
labor or employment laws raises sensitive issues that may implicate the 
rights and liabilities of the parties under those laws, such as the 
issue of notice mentioned in Section F of the Standards. Accordingly, 
the Standards contemplate that an employer, in establishing an ombuds 
office, should consider its overall policies for maintaining compliance 
with those laws, and determine in that light whether to authorize the 
ombuds to address those matters. That recommendation is in no way 
intended to suggest, however, that a policy of authorizing an ombuds to 
address labor- or employment-related matters should be a suspect or 
disfavored practice. On the contrary, involvement in such matters is a 
role typically performed by Organizational Ombuds, and the growing 
reliance on ombuds at institutions across the country is largely 
attributable to the broad satisfaction with ombuds' fulfillment of that 
role on the part of both management and the affected employees. Thus, 
the language in the Standards indicating that an employer should 
specifically authorize an ombuds to address labor- or employment-
related matters does not require any detailed or ponderous recitals. 
Rather, it should be read as simply a particularized application of the 
generalized expectation in Section A of the Standards that the 
jurisdiction of an ombuds office should be identified in its charter.
    Finally, an ombuds should not act in a manner inconsistent with the 
grant and limitations on the jurisdiction of the office when 
discharging the duties of the office of ombuds.
Section E. Removal from office
    Entities which establish ombuds offices need to ensure their 
accountability. Therefore, the charter that establishes the office of 
ombuds should also provide for the discipline or removal of the ombuds 
for good cause by means of a fair procedure.
Section F. Notice
    When meeting with an ombuds, people discuss allegations of 
unfairness, maladministration, abuse of power, and other sensitive 
subjects. They may fear personal, professional, or economic 
retaliation, loss of privacy, and loss of relationships. Faced with 
sexual or racial harassment, for example, many people will quit, get 
sick, or suffer in silence. People often need help in developing ways 
to report or act so that these matters will be considered and resolved.
    Communications must be protected if people are to be willing to 
visit and speak candidly with the ombuds. As noted above, some ombuds 
have confidentiality protected by law. Under these Standards, entities 
that establish an ombuds should authorize the ombuds to operate with 
confidentiality and independence. If an ombuds functions in accordance 
with these Standards by operating with confidentiality and 
independence, it can be strongly argued that management lacks the 
control over day to day operations that is essential for someone to be 
deemed an agent. Likewise, there would be a strong argument that any 
communication to the ombuds should not be imputed to any other person, 
including the entity. Rather, the ombuds would be deemed independent of 
the entity itself for these purposes. Thus, it would not be appropriate 
for the ombuds to accept notice on the entity's behalf with respect to 
any alleged grievance.
    However, some ombuds offices that have been instituted outside the 
framework of these Standards do not operate with confidentiality or 
independence. In some cases, management's control over the ombuds may 
be so extensive as to weaken substantially the argument that the office 
cannot be deemed to be an agent of management. This circumstance would, 
in turn, give force to the argument that a communication to the ombuds 
should be imputed to management.
    Because the law in this area is continuing to evolve, it is unclear 
what a court might decide with regard to notice in the wide range of 
circumstances that may arise. These Standards, therefore, do not 
address the issue of whether a communication to the ombuds will be 
deemed notice to anyone, including any entity in or for which the 
ombuds acts. Important legal rights and liabilities may, however, be 
affected by the resolution of that issue. Accordingly, an ombuds 
should, in appropriate circumstances, advise an individual that, unless 
the individual authorizes the ombuds to inform the management of an 
entity about a matter, the entity may not be deemed to have notice of 
the matter and such failure to give notice to the entity about the 
matter might impair the individual's legal rights.
Section G. Classical Ombuds
    A Classical Ombuds operates in the public sector addressing issues 
raised by the general public or internally, usually concerning the 
actions or policies of government entities or individuals. A Classical 
Ombuds may conduct inquiries or investigations and suggest 
modifications in policies or procedures. To ensure access to all 
pertinent facts, a Classical Ombuds should be granted subpoena power 
for testimony and evidence relevant to an investigation. In addition, a 
Classical Ombuds should be authorized to issues public reports and to 
advocate for change both within the entity and publicly. To ensure the 
essential independence, the standards provide that whenever a classical 
ombuds has general jurisdiction over two or more agencies, that 
position should be established by legislative action and the ombuds 
should be regarded as part of the legislative branch of government. 
Thus, for example, it would be appropriate for an agency to establish 
an ombuds who has jurisdiction over a single program, but the agency 
should provide the essential independence in the charter establishing 
the program. To the extent that an agency has established ombuds 
offices with jurisdiction over a single agency or program but that do 
not comply with the essential characteristics as described in Paragraph 
C of the Standards, it should take prompt steps to remedy any 
deficiency and to provide the requisite independence. If, however, the 
ombuds has jurisdiction over multiple agencies, experience has shown 
that it is extraordinarily difficult to provide independence if the 
ombuds reports to someone in the executive branch.
Section H. Organizational Ombuds
    An Organizational Ombuds ordinarily addresses problems presented by 
members, employees or contractors of an entity concerning its actions 
or policies. An Organizational Ombuds may undertake inquiries and 
advocate for modifications in policies or procedures.
Section I. Advocate Ombuds
    The Advocate Ombuds may be located in either the public or private 
sectors, and like the Classical and Organizational Ombuds, also 
evaluates claims objectively. However, unlike other ombuds, the 
Advocate Ombuds is authorized or required to advocate on behalf of 
individuals or groups found to be aggrieved. Because of the unique 
role, the Advocate Ombuds must have a basic understanding of the nature 
and role of advocacy. In addition, the Advocate Ombuds should provide 
information, advice, and assistance to members of the population 
identified in the law or publicly available written policy. Further, 
the Advocate Ombuds represents the interests of a designated population 
with respect to policies implemented or adopted by the establishing 
entity and government agencies.

                               CONCLUSION

    Government, academia, and the private sector are answering demands 
for fairness and responsiveness by establishing ombuds. Ombuds receive 
complaints and questions concerning the administration of the 
establishing entity. However, the basic authorities of these persons 
called ombuds and the independence, impartiality, and confidentiality 
with which they operate vary markedly. An ombuds works for the 
resolution of a particular issue, and where necessary, makes 
recommendations for the improvement of the general administration of 
the entity. To be credible and effective, the office of the ombuds must 
be independent in structure, form, and appearance. The ombuds's 
structural independence is the foundation upon which the ombuds's 
impartiality is built. The ombuds must conduct investigations and 
inquiries in an impartial manner, free from initial bias and conflicts 
of interest. Confidentiality is a widely accepted characteristic of 
ombuds, which helps ombuds perform the functions of the office. Without 
these Standards, individuals may be reluctant to seek the ombuds's 
assistance because of fear of personal, professional, or economic 
retaliation, loss of privacy, and loss of relationships. This 
Resolution and the Standards for the Establishment and Operation of 
Ombuds Offices are appropriate now to ensure that ombuds can protect 
individual rights against the excesses of public and private 
bureaucracies.
            Respectfully submitted,
                                   Ronald M. Levin, Chair,
             Section of Administrative Law and Regulatory Practice.

                                   Benjamin F. Overton, Chair,
                                     Section of Dispute Resolution.
                                            Pi-Pa-TAG, Inc.
                                                     June 21, 2002.
Hon. James M. Jeffords,
Chair, U.S. Senate Environment and Public Works Committee,
Washington, DC.
    Dear Senator Jeffords: 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.
    As secretary for Pi-Pa-TAG, Inc., a community group holding an EPA 
Technical Assistance Grant for the Stauffer Chemical Superfund Site, I 
would like to tell you our story, as it applies to the EPA National 
Ombudsman Office.
                    stauffer chemical superfund site
    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 
lies the Aquifer System which serves 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, the site sits on the bank of a small waterway, the Anclote 
River, just before it empties into the Gulf of Mexico. This phosphate 
ore processing plant closed down in 1981, but left behind huge amounts 
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.
    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 is known to break down upon exposure 
to salt water, and which was intended to be mixed with the contaminated 
soil below the water table, 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 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.

                        OMBUDSMAN INVESTIGATION

    Three months later, in December 1999, 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 U.S. 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.
    First, the Ombudsman Office's Request for Funding Approval, in 
order to continue with the ongoing investigation, was denied. It was 
only reinstated due to the intercession of Congressman Bilirakis and 
elected officials from other affected sites.
    Second, agency personnel refused to cooperate with the ombudsman 
investigation. In June 2000, EPA Region 4 staff walked out of a public 
meeting, refusing to answer any further questions.
    Third, the agency denied the Ombudsman the right to maintain his 
own staff. In December 2000, the Chief Investigator in 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. 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.
    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 through 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 in this agency.
    The Independence of the EPA National Ombudsman Office has been a 
fantasy.

                               GAO REPORT

    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''.
    EPA Administrator Christie Whitman's decision to transfer the EPA 
National Ombudsman Office to a position within the EPA Inspector 
General's Office is not a step in the right 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.
    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.

                                 B 606

    To these ends, we respectfully request that you give your full 
support to the Ombudsman Reauthorization Act (SB 606).
    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.
            Respectfully,
                                        Heather Malinowski,
                                         Secretary, Pi-Pa-TAG, Inc.
                               __________
                                U.S. Ombudsman Association,
                                      Nashville, TN, June 19, 2002.
Hon. James M. Jeffords,
Chairperson, Environment and Public Works Committee,
U.S. Senate,
Washington, DC.

Re: Written Testimony for Hearing of Committee on Environment and 
Public Works June 25, 2002

    Dear Senator Jeffords: As President of the United States Ombudsman 
Association (USOA), I am submitting this written testimony in regard to 
S. 606, the bill which proposes the reauthorization of the Office of 
the Ombudsman of the Environmental Protection Agency. As our Nation's 
oldest and largest organization of ombudsmen working in government to 
address citizen complaints, the membership of the USOA includes 
practicing ombudsmen at all levels of government, some of whom have 
general jurisdiction, and others who have jurisdiction over a specified 
subject matter or agency. (Detailed information regarding the USOA can 
be found at the Association's website: http://www.usombudsman.org/.) As 
a matter of good public policy, the USOA supports the establishment of 
independent ombudsman's offices for the investigation and resolution of 
complaints involving administrative agencies in government at all 
levels. An ombudsman can serve as an independent office not only to 
address individual concerns, but also to identify systemic problems and 
recommend improvements in policies, practices, and procedures. An 
ombudsman can also help in the important effort to provide public and, 
indeed, legislative oversight of administrative agencies in government.
    In view of recent developments regarding the operation of the EPA's 
Ombudsman's Office, the USOA believes that it is critical that Congress 
act now to reauthorize and strengthen that office. To the extent that 
S. 606 would accomplish this end, the USOA supports that bill, in 
principle. However, the USOA also believes that S. 606 will have to be 
substantially changed from its present form, if the bill is to meet the 
need for a truly independent and effective ombudsman in the EPA. Based 
upon our collective years of experience as practicing ombudsmen in 
government, we are writing today to offer our suggestions for 
improvements to that bill.
    Our Association believes that the most important element in the 
design an effective ombudsman's office in government is structural 
independence, that is, structurally separating the ombudsman from the 
agency under the ombudsman's jurisdiction. Under S. 606 in its current 
form, however, the EPA Ombudsman would continue be structurally 
situated within the EPA. The EPA Ombudsman would report directly to the 
EPA Administrator and would presumably be subject to being hired and 
fired by that official. In addition, the Administrator would have 
oversight authority to direct the work of the Ombudsman, including 
activities and decisions related to investigations and reports. This 
structure makes it extremely difficult for the Ombudsman to feel free 
to criticize, when appropriate, the actions of the Administrator or 
other officials under the Administrator's supervision. In light of 
these features, the USOA is concerned that S. 606 in its current form 
would not provide the EPA Ombudsman with the independence necessary for 
that office to function effectively.
    It is widely understood by students and practitioners of the 
ombudsman institution in government that structural independence is a 
critical element in the design of any effective ombudsman's office. Our 
experience has shown that it is crucial that the ombudsman be protected 
from the potential of interference by officials who might be 
inconvenienced or embarrassed by the ombudsman's investigations and 
criticisms. Indeed, we believe that the recent events involving the 
previous EPA Ombudsman offer a textbook example of how administrators 
will interfere with the operation of internal agency ombudsmen. Thus, 
the USOA believes that, to the greatest extent possible, an ombudsman 
in government should be structurally separated from the entities that 
are subject to the ombudsman's review or investigations. This 
independence allows the ombudsman to act, and to be viewed by the 
public as acting, as an impartial official who reports findings and 
recommendations based on an objective review of the facts and the 
applicable law.
    The USOA believes that the best way to make an ombudsman truly 
independent is by situating the ombudsman's office in the legislative 
branch of government. Indeed, the model for an ombudsman's office in 
government that is internationally recognized as the preferred model is 
one that situates the ombudsman in the legislative branch, as opposed 
to making the ombudsman a part of the administrative agency itself. 
This model has worked remarkably well, not only in scores of countries 
around the world, but also in our country in the States of Alaska, 
Arizona, Hawaii, Iowa and Nebraska. In light of this, the USOA would 
recommend that Congress explore the possibility of changing S. 606 to 
create a truly independent legislative ombudsman for the EPA, perhaps 
by situating the office in the GAO.
    If an arrangement situating the ombudsman in the legislative branch 
is not viewed to be feasible, then our Association would recommend that 
everything reasonably possible should be done to maximize an 
ombudsman's independence within the agency where the office is 
situated. To that end, the USOA would recommend that S. 606 be amended 
by making the following changes:
    Appointment of the Ombudsman.--We would suggest that the Ombudsman 
should not be appointed by anyone within the EPA, the EPA Administrator 
included. With that in mind, our Association would recommend that the 
bill be amended to provide that, similarly to Inspectors General, the 
EPA Ombudsman ``shall be appointed by the President, by and with the 
advice and consent of the Senate.'' We would also suggest that S. 606 
be amended to specify that the EPA Ombudsman shall be appointed for a 
specific term of years, as is typically done with ombudsmen in 
government.
    Removal of the Ombudsman.--We would also suggest that S. 606 be 
amended to make it clear that neither the EPA Administrator, nor any 
other officer in the EPA, for that matter, shall have the authority to 
remove the Ombudsman from office. Specifically, we would recommend that 
S. 606 be amended to provide that the Ombudsman ``may be removed from 
office only by the President,'' and that the ``President shall 
communicate the reasons for any such removal to both Houses of 
Congress.''
    Interference with the Ombudsman.--While S. 606 does require 
``cooperation'' with the EPA Ombudsman, the USOA believes that, 
consistent with provisions of Federal law relating to Inspectors 
General, there also needs to be a specific clause in the bill 
forbidding interference with the Ombudsman. In that regard, we would 
recommend the addition of a provision stipulating that ``neither the 
Administrator nor any other officer or employee of the Environmental 
Protection Agency shall prevent or prohibit the Ombudsman from 
initiating, carrying out, or completing any investigation, or from 
issuing any report, or from issuing any subpoena during the course of 
any investigation.''
    Again, our Association would stress that we believe that the best 
approach to protecting the independence of the Ombudsman is through 
situating the office in the legislative branch of government. The 
recommendations outlined above are offered only as an alternative, if 
it is determined that a true legislative ombudsman for the EPA is not 
feasible.
    In addition to these recommendations on the subject of ombudsman 
independence, the USOA has a few additional suggestions for changes 
that we feel would improve S. 606. Specifically, the USOA would further 
recommend that S. 606 be amended by making the following changes:
    Access to the Administrator.--The USOA believes that an agency 
ombudsman, like an agency inspector general, should be guaranteed quick 
and easy access to the chief executive of the agency. With that in 
mind, our Association would suggest that a provision be added to S. 606 
to specify ``the Ombudsman shall have direct and prompt access to the 
Administrator, when necessary for any purpose pertaining to the 
performance of functions and responsibilities under this Act.''
    Subpoena Power.--As drafted, S. 606 requires the EPA Ombudsman to 
ask the EPA Inspector General for the issuance of a subpoena needed in 
connection with an Ombudsman's investigation. Typically, ombudsmen in 
government have unilateral subpoena power. Our Association believes 
that requiring the EPA Ombudsman to go through the Inspector General to 
obtain a subpoena would invite the IG's office to second guess and, 
perhaps, to interfere with Ombudsman investigations. As an alternative, 
the USOA would suggest that Section 2008(d)(3) of S. 606 be amended to 
state that ``in a case in which the Ombudsman experiences difficulty in 
gathering information pertaining to an investigation conducted by the 
Ombudsman, the Ombudsman may require by subpoena the production of all 
information, documents, reports, answers, records, papers, and other 
data and documentary evidence necessary in the performance of the 
functions assigned to the Ombudsman by this Act, which subpoena, in the 
case of contumacy or refusal to obey, shall be enforced by order of any 
appropriate United States district court.''
    Special Reports.--Section 2008(e)(4) of S. 606 requires the EPA 
Ombudsman ``at least annually'' to publish a report ``on the status of 
health and environmental concerns addressed in complaints and cases 
brought before the Ombudsman.'' Typically, ombudsman legislation also 
makes it clear that the ombudsman is empowered to publish special or 
``critical'' reports, when the ombudsman deems it necessary to do so to 
bring an issue to the attention of the public and the policymakers. 
With that in mind, the USOA would suggest that Section 2008(e)(4) of S. 
606 be amended to specify that ``the Ombudsman shall also be authorized 
to publish such special reports as are, in the judgment of the 
Ombudsman, necessary or desirable.''
    In summary, the USOA enthusiastically supports action by Congress 
to reauthorize and strengthen the EPA Ombudsman. In addition, the USOA 
urges that, as S. 606 is being considered, Congress give particular 
attention to changing the bill in ways that would maximize the 
independence of the ombudsman to the extent feasible. Our Association 
would suggest that this focus upon independence, together with the 
other changes that we have outlined in this letter, would give the EPA 
Ombudsman the best chance to function effectively.
    If the USOA can provide any information or assistance as your 
Committee considers and evaluates S. 606, then please contact either 
Mr. Marshall Lux or me. The United States Ombudsman Association 
appreciates and thanks you for the time and resources you are devoting 
to this important issue.
            Sincerely,
                                Robin K. Matsunaga,
                                                 President,
                                        U.S. Ombudsman Association.
                               __________
       Statement of L. Rogers and Antonia M. Hardy, Harrison, ID

    Senate Environment and Public Works Committee. It is imperative 
that the National EPA Ombudsman Office remain independent and free from 
the bureaucracy and internal politics within any agency that can 
hamper, manipulate, stall, or circumvent vital investigations. The 
Independent National Ombudsman functions to insure protection of our 
shared environment, of ecological and human health. Ombudsman 
independence is a basic component of the checks and balances that 
validate our democratic system, and continued independence certainly is 
basic for insurance that public voice and options will be heard and 
considered. We know from direct experience (with Region 10 EPA in the 
Coeur d'Alene Basin Superfund) that continued Ombudsman independence is 
absolutely essential. In addition, we assert that Robert Martin, in 
particular, must be allowed to finish the open investigations. Without 
his support and help, our grass-roots citizen group's voices within the 
Basin Superfund would likely never even have begun to be heard.
    Our particular issues center around a small but very integral 
sliver of land within the Coeur d'Alene Basin, the now-abandoned 72-
mile Union Pacific Railroad spur line between Mullan and Plummer. This 
abandoned line, which runs through the entire guts of the 1500 square 
mile Basin, was just beginning to be investigated by Ombudsman Martin 
when the changes within EPA happened. We believe that Martin's work 
with our group must continue, especially since the 72-mile right-of-
way, highly contaminated by mine and railroad waste, is being converted 
into a PRECEDENT SETTING CERCLA/SUPERFUND RESPONSE recreational trail 
that will contain over 900 warning signs. Our group has submitted 
scientific data to Ombudsman Martin, and we compiled 27 pages of 
interrogatories which we submitted to him for investigation into Region 
10 and the Bunker Hill Superfund. We believe that our rights as 
citizen/stakeholders were circumvented, ignored, abused, and our faith 
in EPA as the agency mandated to protect our human and environmental 
health and welfare has been seriously compromised. We believe that only 
with Ombudsman Independence can our truth be told.
    We hold very dear our rights to have voice within our government. 
We take very seriously our duties as citizens to exercise our voices. 
We have spent years documenting what we believe are serious problems 
within the Coeur d'Alene Basin Superfund: inadequate testing, 
inaccurate descriptions within EPA documents, double-speak, even fatal-
flaw information that, we believe, should be considered seriously 
before any EPA ROD (Record of Decision) is released this July. Yet, our 
voices continue to be ignored. In fact, the EPA-appointed contact 
person, assigned to answer citizen questions and concerns, has not 
answered our urgent and legitimate citizen/stakeholder questions in 
over 3 months. In fact, since the inception of this precedent trail 
plan which, we assert, hides tons of improperly characterized 
contamination, our voices have been systematically ignored and excluded 
from processes affecting directly our lives, our environment, our land. 
Without an Independent Ombudsman, we do not see how EPA can be held 
accountable to adhere to its own CERCLA/SARA mandated Public Policy 
dictates.
    We support the Idaho Delegation's legislation to keep the Ombudsman 
independent. At the same time, we would urge that Ombudsman Martin be 
the one to continue his open investigations, including Union Pacific 
Railroad. To do otherwise would, we believe, be a misuse of the 
millions of tax dollars as well as the millions of hours of work ours 
included already invested into the Basin Superfund. Martin knows the 
problems, and he must be allowed to finish what he has begun.
    In closing, during these times of change, when more and more 
immoral and questionably legal actions and schemes come to light, we 
think it is imperative to insure public voice, public scrutiny, public 
accountability. And we do not mean a semblance of public inclusion, but 
we mean genuine voice. After all, it is WE, The People, who, 
ultimately, are the ones affected directly by those decisions made in 
Washington D.C., and whose lives and well-being are entrusted to EPA. 
And so, as representatives of ``The People'', we urge you to reinstate 
immediately the Independent Ombudsman, and give Robert Martin the 
authority to complete his investigations.
    Thank you for the opportunity to address your committee.

                               __________
 Statement of Barbara Miller, Silver Valley People's Action Coalition, 
                               Kellog, ID

    Senate Environment and Public Works Committee. God created a 
natural order when he made the earth. The air we breathe and the soil 
that we walk upon was not intended to do us harm. When that order is 
disrupted and as severely as it has been in the area of Shoshone 
County, otherwise known as the Silver Valley Bunker Hill Superfund 
site, chaos, confusion, and adversity of health reign, even one hundred 
years after the first reporting of the lead and heavy metal pollution.
    Silver Valley People's Action Coalition is a sixteen-year-old non-
profit organization established in Shoshone County and whose main 
mission has been to resolve the issues of environmental injustice 
resulting in a century of renegade mining operations.
    It was SV PAC who first requested the investigation of Bob Martin 
EPA National Ombudsman when technical advisors for the nations second 
largest Superfund site found that after 10 years of remediation that 
Region Ten EPA had failed to remove lead and other heavy metal 
pollutants such as cadmium, arsenic, zinc, mercury and give the 5000 
citizens living in four towns of the 21 sq. mile site a quality 
cleanup. It was determined in 1998 that even though EPA had the 
technology to do so, ``the cleanup at Bunker Hill is inadequate and 
residents are still at risk'', Dr. Joel Hirschhorn, Technical Advisor 
for the Bunker Hill Superfund site, Kellogg, Id. In his report 
reviewing the studies done at Bunker Hill, in 1986 when SV PAC first 
became involved it was reported that the Federal Government had spent 
somewhere in the area of $25,000,000 on studies of the site and not one 
shovel full of dirt had been removed! The report goes on to state that 
the lesser quality cleanup had been negotiated by EPA with the mining 
companies years before.
    As a result of the site not being adequately remediated, today more 
than 300,000 citizens in a 1500 sq. mile area beginning at the Montana 
border and extending into Washington State are awaiting a Record of 
Decision for alternatives to cleaning up lead and mine waste that has 
traveled downstream. One of every four children tested outside the 21 
sq. mile ``box'' is found to have an elevated lead and are now lead 
poisoned. Numerous children in the Bunker Hill site are also still 
being tested a routine began in about 1974 and are found with elevated 
lead levels. Tragically nothing is done to properly diagnose or treat 
these children and the figures are being used by health officials to 
say that the site is cleaned up. When in fact the Record of Decision 
for the Bunker Hill site calls for the total removal of lead from the 
interior of homes and schools. Homes where in a 1992 pilot study found 
to have 2 to 50 times more lead in them than the yards that have been 
replaced. To this day nothing has been done to remove the lead from the 
interior of homes and unacceptable protocols to do testing in schools 
has been only partially carried out.
    In September 1998 SV PAC took these concerns to Region Ten who 
agreed that 12 specific areas identified by the Technical Advisors 
needed to be addressed for additional cleanup. At the same time it was 
recommended to call upon Idaho's political delegation to assist with an 
investigation to assure that the these areas targeted for cleanup were 
indeed addressed by EPA. This is when then Cong. Crapo first cooperated 
with our organization and the need for an Ombudsman investigation.
    We are concerned at this time of Idaho's political leaders 
involvement in this process after selecting a member of the special 
interest mining group who has only been established in the area for 
less than 2 years to speak on behalf of SB 606. The group she 
represents is not only small in number but also has the backing of the 
local newspaper owned by one of the PRP's of the Superfund site that 
has no limits to the slander, lies and personal attacks directed at the 
victims who suffer from lead poisoning, oppression and economic 
depression brought on by the pollution. We live in fear of what is done 
to us on a local front for speaking out and actively working with EPA 
to bring the best possible cleanup and improved quality of life to our 
families and even tourists.
    It is because of conflicts such as this that necessitates the 
importance for an independent National Ombudsman office to be 
established. An Ombudsman office that is free from bureaucratic and 
political pressures too often found in Superfund sites and communities 
with extreme pollution and contamination. The Ombudsman's position 
would maintain a fair, objective and impartial playing field for all of 
the citizenry involved.
    These are only some of the facts and problems arising from the 
largest Superfund site in the Nation. These are reasons why SV PAC who 
has been long invested and worked with EPA, politicians, other agencies 
and most importantly the affected citizens support the permanent 
establishment of the Ombudsman's office. Due to his high level of 
commitment and impartiality in carrying out the work of the EPA 
Ombudsman office, Bob Martin is the person who has the experience and 
ability to fulfill the responsibilities of this office over the long 
haul.
    In closing we thank this committee for holding these hearings and 
respectfully request that Robert J. Martin be reinstated as the 
national ombudsman for the EPA allowing him to bring closure to hours 
of work he has begun. In so doing this committee, present administrator 
and administration will witness a be part of an office it can be truly 
proud of!

                               __________
                 Statement of Ron Scholl, Missoula, MT

    I would like to throw my support strongly behind legislation that 
would guarantee the independence of the office of the National EPA 
Ombudsman office. Although I do not live in a community that is part of 
a past or present Ombudsman case, I live near one (Alberton, Montana), 
and have followed the Ombudsman activities here and elsewhere, such as 
in Denver at the Shattuck site and Tarpon Springs, Florida.
    Outside of the contaminated communities the Ombudsman has 
investigated, very few people nationwide are even aware of the 
existence of the Ombudsman office, much less of the impressive record 
of Robert Martin as Ombudsman. But contaminated communities can occur 
anywhere, and will continue to occur. The public deserves a voice to 
air reasoned complaints about EPA handling of hazardous sites, and a 
listening ear uninfluenced by politics, including bureaucratic 
politics.
    There is only one thing that outrages and alarms me more than some 
of the revelations uncovered in Ombudsman investigations, and that is 
the attempt by the EPA, under both the Clinton and now the Bush 
Administrations, to undermine the effectiveness of this watchdog 
office. Rather than learn from their mistakes, the EPA administration 
has retrenched.
    A truly independent Ombudsman--at least in the United States of 
America--should not be directed what cases to chose or drop, should not 
have his budget or staff depleted at whim, should not be told he can't 
speak to lawmakers or the public, and should not have his files 
illegally seized. Please protect the health of the people and our 
environment by supporting legislation that would keep intact and 
strengthen the purpose of the EPA Ombudsman: to investigate citizen 
complaints about EPA activity at hazardous waste sites in an objective 
manner and in an atmosphere of openness and full disclosure.

                               __________
Statement of Lucinda Hodges, Director, Alberton Community Coalition for 
               Environmental Health (ACCEH), Missoula, MT

    Senate Environment and Public Works Committee. The Alberton 
Community Coalition for Environmental Health is a non-profit chemical 
injury advocacy group dedicated to improving the quality of life for 
victims of the April 11th, 1996, Montana Rail Link train derailment and 
chemical spill: the largest mixed chemical spill in railroad history. 
Members of ACCEH have worked with the Ombudsman since 1998 and the 
Alberton, MT, site is one of many open investigations that has been 
left pending. It is our highest hope that you will stand behind both 
the man and the office and vote in favor of Senate Bill 606.
    The following testimony is offered to illustrate the effects of 
living in a contaminated community and the reason why this Nation needs 
an Independent EPA National Ombudsman who performs the job with both 
courage and integrity.
    April 11th, 1996, the numbers:
     133 tons--71 tons of spent oil refinery waste spilled and 
combined with 62 tons of chlorine creating a toxic plume that closed I-
90 for 17 days.
     An initial ``hot zone'' of 72 square miles resulted in 
over 1,200 people evacuating from their homes, 352 people were treated 
at local hospitals, and one man died from exposure to toxic fumes.
     25,000 hazardous waste filled railcars annually pass 
through Montana--The Last Best Place--with an average of 5.3 accidents 
each month. In 1995 & 1996, Montana Rail Link was ranked by the FRA as 
having the 2d highest accident record for its class of railroad.
     Recent soil sampling revealed dioxins remain in the soil 
on the derailment site.
    The story behind the numbers:
    Despite all assurances from the EPA that the ``hot zone'' was safe 
for returning evacuees' many residents and workers experienced a wide 
range of debilitating health problems upon entering the former ``hot 
zone''. Reported acute symptoms ranged from shortness of breath, 
headaches, migraines, blurred and double vision, nausea, dizziness, 
loss of concentration, muscle twitching, fatigue, skin rashes, joint 
pain to chronic conditions that developed over time such as seizures, 
balance disorders, lupus, asthma, fibromyalgia, chronic fatigue, 
cancer, and toxic encephalopathy. Thus began what is still an 
unresolved and tragic controversy that revolves around this simple 
question--Is it really safe to live in Alberton, MT?
    By 1998, after YEARS of phone calls, letters, costly trips to EPA 
Region 8 Headquarters in Denver, Colorado, Washington, DC, the 
production of a documentary film, ``A Toxic Train Ran Through It,'' and 
several well researched masters thesis's delving into the consequences 
of exposure to 133 tons of toxic waste--were ignored by EPA officials--
ACCEH petitioned the office of the National Ombudsman of the EPA to 
intervene. Shortly thereafter Robert Martin visited the community, met 
with individuals, reviewed public documents, and determined an 
investigation was warranted.
    In November of 2000 more than 5 years after the derailment the 
first public and only hearing was held by EPA National Ombudsman, 
Robert Martin, in Missoula, MT. newspaper editor, Ken Picard, reported 
at the time, ``For 10 grueling hours they brought forth medical 
records, news articles, videotapes, and photographs of defoliated trees 
and chemically injured animals. Some displayed large plastic bags and 
tackle boxes full of the prescription drugs they now rely on to 
survive. Mothers spoke of previously healthy children who can no longer 
play sports and whose medical bills total in the tens of thousands of 
dollars. Others asked why schools and playgrounds were never 
remediated, what became of the toxic soil hauled through Missoula, and 
why residents weren't put through the same rigorous decontamination 
measures as rescuers. Grown men who recounted their experiences were 
reduced to tears and could not continue with their testimony. Their 
hopes are pinned on Robert Martin, national ombudsman for the 
environmental Protection Agency (EPA) who was asked to hold these 
hearings by Sen. Max Baucus (D-Mont.).''
    The ombudsman promised to conduct a second hearing and provide 
Senator Baucus with a full assessment of the Alberton community and the 
derailment site. Mr. Martin concluded the hearing with these words; 
``You're very brave. And for the record, you're not alone.'' 
Unfortunately, we are once again alone. Ombudsman Robert Martin, has 
not been able to keep his promise to the people of Alberton, MT due to 
direct and purposeful interference from the agency he is mandated to 
police. Only weeks after the hearing in Missoula, MT, ACCEH received 
this memo from Ombudsman Martin, ``In view of reported recent personnel 
transfers and pending implementation of EPA Ombudsman Guidelines . all 
schedules for all National Ombudsman cases have been put on hold and/or 
delayed until further notice.''
    What we have learned in over 7 years of working with the EPA is 
that there is no such thing for an average American citizen as a 
``working'' relationship with the EPA. There is no legitimate process 
for citizen complaints within the hierchy of the agency. Without 
reauthorization of the Ombudsman legislation this investigation and 
many others will never be completed. Years of work by local volunteers 
will be lost forever, and one more contaminated community will be left 
in an untenable position. A position that is well defined by Professor 
Michael R. Edelstein in his book, Contaminated Communities, ``Most 
toxic victims suffer from citizen's bind. In seeking publicity, they 
enhance their community's stigma. In actively seeking answers, they 
enhance their level of stress. In depending on government for 
assistance, they are likely to be disappointed. And facing a mitagory 
gap, wherein an extended period of time elapses between the definition 
of the exposure and the execution of the steps to correct it, victims 
may find themselves trapped in a situation where they are damned no 
matter what they do.''
    What has prevailed in Alberton, MT, are corporate politics, bad 
science, poor site management, and no accountability for millions of 
superfund dollars. The real-life human consequences of this malfeasance 
have been documented and witnessed everyday over the past 7 years in 
our little town by chronic illness, blighted housing, boarded up 
business's, and dislocated families with the tab mostly being picked-up 
by the American tax payer every time someone's mother, father, or 
child, requires assistance from social services, disability, or full 
time care-taking. The true social and economic costs to our town and 
this Nation for the broken lives of the chemically injured are 
staggering.
    In closing, we thank you for holding this hearing and we 
respectfully request that Robert Martin be reinstated as the EPA's 
National Ombudsman and be allowed to finish the investigations he began 
and continue on under this legislation as a truly independent EPA 
National Ombudsman that the entire Nation can be proud of.
                               __________
                                                Cindy Koke,
                                                        Denver, CO.
Senator Jeffords: I am writing today in reference to bill 606 the 
    Ombudsman Reauthorization Act of 2002. The bill relates to the 
    reauthorization and restructuring of the office of Ombudsman of the 
    Environmental Protection Agency. The Ombudsman's office has been 
    instrumental in investigating and righting wrongs at Superfund 
    sites where mistakes were made. Every agency has entities in place 
    to audit and investigate mistakes or wrong doing. Police 
    Departments have internal affairs divisions. The political arena 
    has sub committees armed with special prosecutors to investigate 
    wrongdoing.
    The environment is such an important issue. It affects the air we 
breathe the water we drink, the food we eat, In other words not only 
our health but also our very existence. It is just common sense, with 
such important issues at stake, that the American people have an 
Ombudsman concerning the environment. It also makes sense that this 
office should be funded independently so that the EPA cannot control or 
hinder investigations. The Ombudsman should be the one to pick which 
cases warrant investigation, not the agency that made the mistake. 
There are many wonderful people working for the EPA but as in all 
organizations people make mistakes. There is no reason to be afraid of 
the truth. We should all have the same interest at heart. Environmental 
protection should mean a remedy protective of health and environment.
    The American people have been very fortunate to have had an 
Ombudsman like Bob Martin and a Special Investigator like Hugh Coffman, 
looking out for their interest. I recently attended a conference with 
citizens who live near Superfund sites all over the country and 
applause followed after any mention of their names. Many citizens felt 
that they would have never been heard had it not been for the 
Ombudsman. I live near the Shattuck chemical site. I feel that the 
Ombudsman's office was instrumental in correcting a mistake that had 
been made.
    I implore you to support the Ombudsman process and to make sure 
that they are allowed to do their job, by letting them choose their 
cases and by funding them independent of the EPA.
    Thank-you.
                                                        Cindy Koke.
                               __________
Statement of William A. Smedley, Executive Director, GreenWatch, Inc.; 
            Board Member, PEN; Chairman Legal Committee, AIR

    Thank you for the opportunity to provide this testimony in 
connection with the June 25th hearing conducted in Washington DC. 
Although I was unable to attend this important hearing, I wish to 
provide the following testimony regarding my experiences with the 
National Ombudsman's office. This testimony is submitted on behalf of 
three non-profit organizations which I hereby represent: GreenWatch, 
The Pennsylvania Environmental Network (PEN) and Arrest the Incinerator 
Remediation (AIR).
    Our grassroots citizens group AIR saw first-hand in Lock Haven 
Pennsylvania, with the Drake Superfund Incinerator, how the EPA is 
unresponsive and evasive to those citizens who are most affected by 
their decisions. We have seen for ourselves how the EPA bureaucracy has 
repeatedly tried to prevent and interfere with the Ombudsman's 
investigation at Drake and other Superfund Sites. I can tell you first 
hand that Mr. Martin is one of the few people in the EPA who has earned 
the respect, trust and admiration of AIR and other groups across 
Pennsylvania. Although we were unable to stop the operation of the 
Drake Incinerator, due to the unconstitutional language of Superfund 
law, Robert Martin helped us tremendously in his capacity as Ombudsman. 
Because of the unconstitutional provisions of Superfund law locking AIR 
out of Federal court (Section 113H), the Ombudsman was the only place 
for citizens to go where someone would independently hear their 
grievances and investigate their allegations. Mr. Robert Martin did an 
excellent job trying to mediate a bad situation only to find himself in 
a face off against Asst. Administrator Tim Fields and hostile, 
unreasonable Region 3 officials, namely one Thomas Voltaggio (promoted 
after Drake to Asst. Regional Administrator). The Ombudsman's 
recommendations and reports in the Drake case were professional, 
reasonable, well thought out and researched and should have resulted 
in, at least, a temporary shut down of operations at Drake until the 
issues were resolved. Officials from our State DEP even had the 
audacity to tell the Ombudsman that his involvement at Drake was 
``untimely''. Untimely indeed, I pulled empty beer cans (in bags with 
Drake instrument calibration documents) out of secure Drake dumpsters 
shortly after the Ombudsman left town. Instead of Region 3 officials 
admitting that their contractors were drinking beer they did damage 
control saying publicly that empty beer cans were not proof that the 
contractors were drinking while operating a hazardous waste incinerator 
on a Superfund Site. The Region 3 Drake operation manager, Gregg 
Crystall later told me that EPA should have just admitted that the 
contractors were drinking but he allowed their public relations machine 
to spin the incident anyway. Drake burned in 1998 and we understand 
that since then EPA Region 3 officials have been trying to burn Mr. 
Martin in retaliation for doing his job as Congress had intended.
    During the Drake fight, in reaction to Mr. Martin's report on 
Drake, we also saw EPA create the ``regional ombudsman'' program that 
we recognized immediately as a sham. The regional folks are nothing but 
seasoned yes men and we and others statewide and nationwide have 
boycotted any involvement with them. There is only one true Ombudsman, 
Mr. Martin. This ploy was nothing but an attempt to take away the power 
vested in Mr. Martin originally by Congress. Since then we have 
reviewed the GAO report on the National Ombudsman. The report verified 
our feelings that Mr. Martin did not have sufficient independence, was 
interfered with by EPA and that the regional ``ombudsman'' are 
compromised with tremendous conflict of interest and are far from 
independent. In my capacity as Executive Director of GreenWatch, a non-
profit organization dedicated to helping citizens with environmental 
problems, I have seen the regional ``ombudsman'' at work. The 
``investigation'' conducted by the Region 3 ``ombudsman'' in the 
Boyertown Bovine Site near Gilbertsville, PA vindicated Region 3 
officials and was insulting to us and our clients. His actions again 
reinforced our belief that the ``regional ombudsman'' program was 
designed to circumvent Mr. Martin's involvement and to do damage 
control for the Region. We still need Mr. Martin's help at this site as 
EPA Region 3 officials actually had the audacity to blame the farmers 
for their own dying dairy herd problems even in light of tremendous 
evidence of fluoride pollution from a local industry doing government 
contracts. While the farmers wait for the Ombudsman's help, and for 
your action on legislation, they slip faster toward bankruptcy.
    On January 29, 2000, I traveled to Denver Colorado to testify at an 
Ombudsman hearing conducted by Senator Wayne Allard. I represented many 
citizens and several organizations in requesting that Senator Allard 
move Ombudsman legislation through the Senate and eventually through 
Congress so that citizens nationwide could have a truly independent, 
well funded National Ombudsman. Too much time has passed since then and 
citizens now find themselves without an Ombudsman due to EPA's attempt 
to transfer the Ombudsman to the Inspector General's office resulting 
in Mr. Martin's resignation. The EPA has demonstrated, on many 
occasions, that they cannot be trusted with allowing the Ombudsman to 
function independently leaving citizens with no Ombudsman to assist 
them. My opinions of EPA's treatment of the National Ombudsman's office 
and with EPA (Regional and National) interferences with the National 
Ombudsman's office have been formed from many interactions with 
citizens working with Mr. Martin and his office nationwide.
    AIR worked closely with the citizens in Times Beach Missouri and 
learned how EPA rams incinerators down citizen's throats before the 
Drake Incinerator came to Lock Haven. On behalf of AIR, I traveled to 
Times Beach to learn from the citizens fighting EPA there and 
personally requested involvement from Mr. Martin at that time. I 
witnessed the EPA regional officials treatment of citizens in Times 
Beach and was horrified at thinking that we were next. Mr. Martin along 
with the professional assistance of his investigator, Hugh Kaufman, did 
their best to reason with Region 3 officials regarding Drake, only to 
be ignored and down played. I have worked with citizens in Denver 
fighting the Shattuck Superfund Site and saw how they were treated by 
their EPA regional officials, same game different city. Again, Mr. 
Martin and Mr. Kaufman did their best to help against the power and 
deception of the region and Mr. Fields. I also assisted the citizens of 
McFarland California with obtaining copies of their documents that were 
eventually turned over to the IG's office. I spent 6 hours copying 
thousands of pages of documents at EPA in order to preserve copies 
before they were confiscated by the IG's office. Citizens feared that 
once the IG's office got hold of their documents that they would be 
gone forever. Having no faith in the IG's office, we believe their 
fears were well founded. Citizens who are members of PEN in Troop PA 
fighting the Marjol Battery site again learned first hand about how 
Region 3 officials (Voltaggio again) treat people who question their 
authority and tactics. The Ombudsman's work is not done in Troop PA and 
citizens desperately need Mr. Martin and Mr. Kaufman back.
    As I said previously, too much time has passed while citizens 
nationwide wait for action on legislation to fund a independent 
National Ombudsman office. Now we find ourselves with no place to turn 
for help with many situations were we desperately need the Ombudsman. I 
am convinced that Mr. Martin and Mr. Kaufman were targeted because of 
their honesty and integrity with their work on behalf of the U.S. 
Congress and the American People. I would be happy to appear before any 
Senate Committee anytime to testify about our experiences with Mr. 
Martin, his office and his integrity and about our negative experiences 
with Mr. Fields and USEPA Region 3 officials. I urge you on behalf of 
GreenWatch, AIR and PEN to do everything in your power to rapidly move 
legislation through Congress to again give the American people an 
independent office of National Ombudsman with Mr. Martin in charge with 
the power to manage his own staff and budget. The loss of the National 
Ombudsman office is a severe blow to our trust in our elected officials 
who ultimately bear the responsibility for the loss of our National 
Ombudsman. Please give us the National Ombudsman that was originally 
intended. While you wait and deliberate citizens suffer from the lies 
and deception of corrupt regional and national EPA officials who enjoy 
impunity from their fowl actions. Time is of the essence; please give 
us back our Ombudsman, Mr. Robert Martin. We have lots of work for him 
to do before it is too late.
    Again, thank you for the opportunity to give testimony on this very 
important issue.
                                             Suzie Canales,
                                     Corpus Christi, June 21, 2002.
Committee of Environment and Public Works
    Dear Committee of EPW, my name is Suzie Canales with Citizens for 
Environmental Justice (CFEJ) based in Corpus Christi, Texas.
    We are a bipartisan watchdog group residing in a county that is 
mostly Hispanic and low-income. We live in an industrial City with 
numerous refineries. Over the last 50 years, Nueces County operated 
over 40 pre-regulation landfills.
    For decades our county has been environmentally over-burdened. We 
have documentation of high cancer rates as well as high birth defects, 
yet Local, State and Federal Agencies have dismissed our environmental 
health concerns conducting studies that were inadequate, misleading and 
arbitrary.
    Government agencies, in this case the EPA, must be held 
accountable. The only way to ensure that grassroots citizens groups get 
a fair and impartial review of our disputes with the EPA is to support 
S. 606. It is imperative that the National Ombudsman has the additional 
authority S. 606 proposes in order to conduct inquiries into disputes 
such as ours. This will ensure that the EPA, the agency charged with 
protecting the environment be held accountable to the people who turn 
to them with environmental concerns. If there is no effective 
accountability system in place, I can assure you it is not the EPA who 
will suffer, it is the people affected.
    It is imperative that Robert Martin be reinstated with all the 
authority proposed in S. 606. In our corner of the world, this would 
insure that our community would at last get a fair investigation that 
we deserve.
    Therefore, we respectfully request that the Committee of 
Environment and Public Works, support S. 606.
            Sincerely Yours,
                                             Suzie Canales,
                         Citizens for Environmental Justice (CFEJ).
                               __________
             Environmental Law Society, Vermont Law School,
                                                     July 13, 2002.
Hon. James M. Jeffords,
Chairman, Senate Environment and Public Works Committee,
U.S. Senate,
Washington, DC.
    Dear Chairman Jeffords: On behalf of Vermont Law School's 
Environmental Law Society, we would like to provide written comments 
for the record following the Senate Committee on Environment & Public 
Works Hearing on EPA's recent decision to move the EPA Ombudsman to the 
Office of Inspector General held on June 25, 2002. We write in strong 
opposition to the decision to locate the EPA Ombudsman in the Office of 
Inspector General and urge the Senate to properly reauthorize this 
critical check and balance, that has been available to communities who 
seek to protect their public health and their environment.
    Throughout, the past year many Vermont Law School (VLS) students 
have followed the exceptional work and the associated controversy of 
the EPA National Ombudsman in his work in New York City, Idaho, 
Florida, Pennsylvania and Colorado. When citizens struggle with the 
intricacies of a hazardous waste cleanup or an EPA bureaucracy 
determined to implement a plan, the EPA Ombudsman provides an open and 
transparent process to help resolve their complaint. For citizens who 
do not have first hand experience with the government, and/or the often 
complicated bureaucracy of the EPA, the Ombudsman process may be 
difficult to imagine. Many do not fully understand what it is like to 
have decisions seemingly arbitrarily made to not cleanup a radioactive 
waste site (Shattuck Superfund site in Denver, CO), or not cleanup a 
lead battery dump (Marjol Battery in Throop, PA) or not have homes 
tested for contaminants in the case of residents surrounding the World 
Trade Center. The EPA Ombudsman provides a mechanism to help citizens 
obtain an independent review of Agency decisions that appear to be 
misguided.
    Today, however, the EPA Ombudsman function no longer exists at EPA. 
Instead of acting on the recommendations of the General Accounting 
Office (GAO) made in July 2001\1\--to give further independence and 
control of resources to the EPA Ombudsman--the move to the OIG has done 
just the opposite. The move has stripped the Ombudsman of any semblance 
of independence and further diminished the Ombudsman's ability to 
perform his job. While the OIG is an independent office with respect to 
the EPA, its guidelines and procedures that require it to speak with 
``one voice'' run counter to the mandate of an ombudsman, which 
requires investigating complaints made about agency decisions, and not 
simply codifying agency decisions.
---------------------------------------------------------------------------
    \1\ See Gen. Acct. Off., Hazardous Waste: EPA's National and 
Regional Ombudsmen Do Not Have Sufficient Independence, GAO-01-813 
(2001).
---------------------------------------------------------------------------
    The OIG is a poor choice for the EPA Ombudsman for several reasons. 
First, the ombudsman doe not have the independence necessary to perform 
the role of an ombudsman within the OIG. It is our understanding that 
the recently appointed IG ``Ombudsman'' does not have authority to 
decide which cases he or she will investigate. Second, the IG Ombudsman 
does not have the freedom to speak with citizens, Congress, or the 
press due to standard OIG procedures. Instead, the IG Ombudsman must 
work through a Community relations person or a Congressional liaison to 
speak with the public, Congress or the press. We know of no legitimate 
mainstream ombudsman who must jump through these hoops to perform their 
job. Third, we are not aware of any Federal Ombudsman that is housed in 
the Inspector General's office. Both the IRS and the FDIC Ombudsman 
report directly to the head of the respective agencies. The IG has an 
important role in government-investigating fraud and abuse--but the 
IG's mandate is much narrower than the charge of an Ombudsman.
    We would like to take this opportunity to ask the Senate to take 
immediate legislative action to restore the independence of the EPA 
Ombudsman. The legislation should provide the EPA Ombudsman with 
functional and structural independence that is consistent with the 
professional standards of the Ombudsman community. The EPA Ombudsman 
must be able to choose his or her own cases, control his or her own 
resources and staff, communicate freely with the public and Congress, 
and maintain confidentiality with complainants.
    We recommend the following changes to S. 606 ``The Ombudsman 
Reauthorization Act of 2001.'' First, we recommend that the EPA 
Ombudsman have independent subpoena power, which is consistent with 
other Federal ombudsman. Second, we commend the EPA OIG for its 
decision to expand the Ombudsman function to apply to all programs that 
are under the jurisdiction of the EPA, and hope that the final 
legislation will incorporate this decision for we believe this change 
would help to better serve the public. We note specifically the need 
for an Ombudsman to receive complaints about EPA decisions that have 
the effect of disproportionately impacting low income communities and 
communities of color who are already over burdened by hazardous waste 
in this country.
    Additionally, programs under other environmental laws such as the 
Clean Air Act might be well served by an independent ombudsman.
    Third, we also recommend that the Regional Ombudsman be appointed 
by and report directly to the EPA National Ombudsman. The regional 
ombudsmen must do fulltime ombudsman related work and not do part time 
work on Superfund or other programs as is the case today. Past direct 
or perceived conflict of interest must be remedied in order for the 
ombudsman program to be effective at EPA. The Regional Ombudsman should 
merely be an extension of the National Office and must assist the 
National Ombudsman in investigating and reviewing complaints and other 
duties.
    Fourth, we recommend that the Ombudsman be granted the specific 
power to petition the Administrator and/or Congress to seek additional 
funds from Congress to perform technical sampling or investigative 
support work.
    Finally, we recommend that the EPA Ombudsman report directly to the 
Administrator of the Environmental Protection Agency. Although there 
has been significant controversy between the Ombudsman and his or her 
staff and the Administrator (in both of the past two Administrations), 
we believe that if legislation secures the EPA Ombudsman sufficient 
independence and control of his or her resources, that this structure 
is the most effective for an executive branch ombudsman. This is the 
structure that ombudsmen at the Federal Deposit Insurance Corporation 
and the Internal Revenue Services follow and we feel this is a good 
model for the EPA Ombudsman. Further protection could be provided to 
the Ombudsman in the legislation by enumerating cause of removal from 
the position. Whistleblower protection must be available to the EPA 
Ombudsman and associated staff. Provided that the EPA Ombudsman 
controls his or her own budget, staff and resources consistent with 
Federal Civil Service rules, we feel this structure is advantageous 
beyond the particular difficulties with either of the past 
Administrations.
    If such a structure is not politically feasible, we recommend that 
the legislation be changed to have the EPA Ombudsman report directly to 
Congress as its own entity. We do not feel that GAO is a suitable 
location for the EPA Ombudsman because GAO does not receive complaints 
from the public.
    Notably, in March of this year, former EPA Administrator Carol 
Browner spoke at Vermont Law School's conference entitled Women 
Rethinking the Environment. During her 8 year tenure, there were 
certainly times when the Agency's bureaucracy tried to prevent the 
Ombudsman from investigating the Industrial Excess Landfill case in 
Uniontown, Ohio. In another case, the Ombudsman was temporarily denied 
authorization to travel to Tarpon Springs, Florida. This latter case, 
spurred Members of the House Energy & Commerce Committee to ask GAO to 
investigate the Agency's actions to hinder the Ombudsman's 
investigations. The GAO Report concluded the Ombudsman does not have 
sufficient independence or control of resources.
    Today, have a Republican administration that has acted on the 
previous administration's desire to silence the people's advocate. As a 
result of the Administrator's decision to move the Ombudsman to the 
OIG, more than two dozen communities who previously relied on the 
Ombudsman process have been left without an independent watchdog to 
help safeguard their public health and their environment. This is 
especially critical given the dwindling level of dollars in the 
Superfund. We urge Congress to take this opportunity to reauthorize 
this critical watchdog position at EPA with the foregoing enhancements.
    As a final note, we also recommend that Mr. Robert J. Martin be 
reinstated to finish his case work that is currently pending and that 
he be considered for any future position as Ombudsman if that may be 
authorized by Congress.
    Thank you for your consideration of these comments on S. 606.
            Sincerely,
                                           Kristen Huysman,
                     Environmental Law Society, Vermont Law School.
                               __________
     Memorandum from Tom Devine, Government Accountability Project
Re: Public policy impact from abolition of independent EPA Ombudsman

    The alleged retaliatory reassignment and forced resignation of EPA 
National Ombudsman Robert Martin is far more than an employment 
dispute. It has serious consequences for communities who believe the 
agency illegally has permitted public health hazards to threaten their 
air and water supplies from hazards such as Superfund and toxic waste 
sites.
    In April when he was forced to resign, Mr. Martin was pursuing and 
seeking resolution of more than two dozen cases at the request of 
citizen organizations and congressional offices. In each case, the 
communities had reached an impasse with normal EPA channels, and the 
Ombudsman was their last resort. During his decade in office, after 
investigations, public hearings sometimes hosted by Members of Congress 
and subsequent mediation efforts, Mr. Martin has broken the deadlocks 
to reach mutually acceptable resolution in some 80 percent of his 
cases.
    Since reassignment of the Ombudsman function to EPA's Office of 
Inspector General (``OIG'') and Mr. Martin's forced resignation, 
however, there has been no further progress on any of the cases. The 
OIG has made no efforts to work with Mr. Martin as a transition to 
renewed efforts. The citizens' accountability lifeline has been cut. 
Mr. Martin's goal in his Whistleblower Protection Act case is to return 
for a fixed time period to complete the work that he started on pending 
cases. The list below is a sampling of cases that have been 
functionally killed.
    Alberton, Montana.--This Montana town suffered a disastrous train 
wreck 5 years ago that caused widespread chlorine contamination. It has 
caused health consequences such as blackouts, sexual dysfunction, 
memory loss and respiratory breakdowns. When he was removed, the 
Ombudsman was using videotape of the train's location to challenge EPA 
assertions that the toxic train could not be found. The search has been 
halted.
    Northern Idaho.-- In this Coeur d'Alene basin, residents protested 
that the agency is not requiring Union Pacific to pay for its share of 
a $\1/2\-4 billion cleanup cost, although it is responsible for lead 
spills thousands of times above safe levels. The lead is contaminating 
rail and bike paths, to the extent motorists are still warned about 
leaving their cars to fix flat tires. At the request of the Idaho 
congressional delegation. Ombudsman Martin was pursuing the case when 
his efforts were halted by his removal. It remains dormant.
    Pensacola, Florida.--Area Congressmen and municipal officials from 
this poor African American community asked for Ombudsman Martin's 
assistance when EPA decided not to remove toxic wastes contaminated 
with dioxin. This case was pending when the Ombudsman was removed.
    Riviera Beach, Florida.-- Four area Congressmen and the mayor of 
this poor African American community near West Palm Beach asked 
Ombudsman Martin to open a case, because the town's drinking water is 
contaminated by industrial solvents such as trichlorine ethylene. The 
residents protested that EPA was requiring the municipality to foot the 
two million dollar annual cleanup cost for Honeywell's pollution. Last 
fall the Ombudsman successfully negotiated a solution to obtain funding 
from within EPA, but progress has now halted without any liability or 
enforcement action to hold Honeywell responsible.
    Shattuck, Colorado.-- This site near Denver stored radioactive 
wastes that could be toxic for 500 years. The storage area was within 
blocks of residential and recreation areas, as well as within range of 
the water supply. In response to requests ranging from Senator Allard 
to community organizations, an Ombudsman investigation found that EPA's 
plan to store the waste would only isolate it from 5-15 years. As a 
result, the agency agreed to require its removal. But costs were not 
negotiated and a settlement signed among the parties until almost a 
year after Ms. Whitman's arrival at EPA. Citizens protested that the 
subsequent proposed settlement only required Citigroup to pay $7 
million for a cleanup that requires from $35-100 million to conduct 
adequately, without considering associated costs to remove radioactive 
contamination from the groundwater and other areas where leaks already 
had exceeded containment or the site boundary. After the U.S. District 
Court in Washington, D.C. issued a Temporary Restraining Order (TRO) 
enjoining abolition of the Ombudsman office, Mr. Martin completed 
compilation of an extensive record of public testimony and prepared a 
report for the Federal District Court judge in Colorado who must 
approve the proposed settlement. Although the settlement is still under 
review, there have been no further contributions to the record since 
Mr. Martin's removal.
    Tarpon Springs, Florida.-- After the EPA had decided to pile up and 
leave asbestos, phosphates and radioactive wastes for storage in the 
community, Ombudsman Martin analyzed the storage site at the request of 
Representative Bilirakis. He found that it was an area prone to 
sinkholes, and on top of an aquifer that provides drinking water for 
two counties. As a result. EPA withdrew its remedy to leave the toxic 
wastes, and withdrew an associated consent decree. Ombudsman Martin was 
actively negotiating a new solution when his office was abolished.
    Throop, Pennsylvania.-- Senators Spector and Santorum, as well as 
Lackawanna County and Throop Borough, asked Ombudsman Martin to review 
EPA's cleanup plan for this site to dispose toxic wastes from a battery 
crushing operation. The controversy centered on whether it should be a 
Superfund site, and whether toxic wastes such as acid, arsenic, dioxin, 
lead and PCB's should be removed or stored in the area. EPA's plan was 
to leave the poisons in the community, just blocks from residential and 
recreation areas and within range of the water supply, covered by 
plastic liner bags. But the Ombudsman investigation found lead in the 
soil at levels up to 250 parts per million, revealed there already were 
weeds growing through the plastic bags, and concluded that the area's 
topography meant it was too geographically unstable to safely store 
toxic waste. After the District Court TRO permitted the investigation 
to resume, the Ombudsman held public hearings and found records 
demonstrating that EPA had concealed readings that the site 
contamination readings exceeded Superfund levels. Since Mr. Martin's 
removal, the case has been dormant.
    Uniontown, Ohio.-- At the request of area Congressman Sawyer, 
Ombudsman Martin opened a case of the IEL site near Canton, Ohio, for 
which tire companies today are primarily responsible. Radiation was 
emanating from the site with inexplicable tritium readings in the 
ground water, and the original owner alerted EPA that he had accepted a 
nuclear device from the army while operating the site as a landfill. 
The Ombudsman was investigating challenges to EPA assertions that the 
nuclear device did not exist, because it had not been found. 
Nonetheless, the agency also refused to look for it, based on the 
contradictory excuse that it would be too dangerous to do any digging. 
The Ombudsman case ended with Mr. Martin's removal.
    Yucca Mountain, Nevada.-- At the end of last year the Nevada 
congressional delegation, the state and Las Vegas' mayor asked the 
Ombudsman to investigate EPA-related issues from the proposed nuclear 
waste site, which has a Resource and Conservation and Recovery Act 
(RCRA) identification number. EPA's Office of General Counsel barred 
Mr. Martin from providing assistance.
    World Trade Center.-- At the request of Representative Jerrold 
Nadler, the Ombudsman opened a case to prepare cleanup recommendations 
and to probe EPA Administrator Whitman's widely publicized assertions 
that there were no environmental health hazards from the World Trade 
Center disaster. Ombudsman Martin conducted two eleven hour hearings 
hosted by Representative Nadler. The hearings developed extensive 
testimony contradicting Mr. Whitman's assertions, from scientists, 
citizens, firefighters and other cleanup workers, doctors and even 
counter terrorism experts. They exposed severe threats from asbestos 
and other particles released during the disaster. The Ombudsman 
presented detailed findings in testimony to the New York state 
assembly, New York city council, and New York City Board of Education. 
Facing this record, EPA reversed its initial decisions and took serious 
steps such as stopping release of contaminated cars, and starting a 
systematic program of indoor air testing for lower Manhattan. City 
authorities also acted to limit exposure of cleanup workers and school 
children to the newly confirmed health hazards. None of these efforts 
would have occurred if the District Court had allowed Ms. Whitman to 
eliminate the National Ombudsman function as originally planned. 
Further oversight has ended entirely since his forced removal.

                               __________
 Memorandum from Community Leaders for EPA Accountability Now (CLEAN), 
                 Coeur d'Alene, ID, to Senator Jeffords

                               MEMORANDUM
June 21, 2002

RE: S. 606 National EPA Ombudsman Reauthorization Hearing

    Thank you for committing to holding your hearing on the 
reauthorization of the National EPA Ombudsman.
    Please accept the following written and attached submissions by 
Community Leaders for EPA Accountability Now for the S. 606 hearing, 
June 25, 2002.
    It is the position of C.L.E.A.N. that an independent National EPA 
Ombudsman's function must be maintained--but outside the oversight of 
the EPA office of Inspector General. We fully support the position of 
U.S. Senator Mike Crapo in this regard.
    In Oct. 2000, C.L.E.A.N. testified (U.S. House--Commerce Committee) 
in support of the National EPA Ombudsman's critical role of oversight 
over EPA.
    If an agreeable timeline can be established, C.L.E.A.N. believes 
that reappointment of Ombudsman Robert Martin gives us our best hope 
for true resolution of the highly contentious issues our citizens, 
communities and elected leaders still have with EPA.
    The magnitude of the two Ombudsman investigations of EPA at the 
Bunker Hill Superfund Site and the surrounding basin cannot be 
overstated. The investigations of EPA and EPA Region-10 in North Idaho 
must be resolved--in a timely manner.
    Examples of our concerns with the critical need for a truly 
independent EPA Ombudsman are demonstrated in two attachments that 
show:
     EPA-OIG has yet to respond to fundamental questions from 
C.L.E.A.N. about the pending Ombudsman cases here;
     Concerns with EPA Region-10 actions continue to mount--
despite the efforts by new Regional Administrator John Iani to ensure 
local community concerns are prevented and/or resolved.
    C.L.E.A.N. respectfully submits this to you--in full support of 
Senator Mike Crapo's efforts and the testimony of Ms. Kathy Zanetti, of 
the neighboring Shoshone Natural Resources Coalition. Thank you.
                                 ______
                                 
      Community Leaders for EPA Accountability Now (CLEAN),
                                                    April 30, 2002.
Ms. Nikki L. Tinsley, Inspector General
Environmental Protection Agency,
Washington, DC.
    Dear Ms. Tinsley: The sudden resignation of former National EPA 
Ombudsman Robert Martin last week, is prompting the following questions 
and inquiry by Community Leaders for EPA Accountability now 
(C.L.E.A.N.) based in beautiful Coeur d'Alene, Idaho.
    C.L.E.A.N. and other organizations dealing with concerns from EPA, 
Region-10, its bureaucracy and future intentions in this region have 
very real reservations about the likelihood Mr. Martin's investigations 
of EPA will ever be resolved or fully disclosed.
    In our effort to understand the IG's new role of managing the 
National EPA Ombudsman, please provide answers to the following:
    1. We understand a successor to Mr. Martin has been named (Mary 
``Peggy'' Boyer). What are her priorities as they relate to the pending 
investigations still open by the former Ombudsman?
    2. Will the outstanding/pending ``investigations'' remain active or 
be reclassified/re-prioritized in any way? If so, how?
    3. Please define the process in which the active investigations 
will be carried out and finalized? What status are they being given?
    4. Since Mr. Martin and other elected leaders, citizens, and 
business-owners were unsuccessful in having Region-10 answer any of the 
interrogatories or requests for production of documents submitted to 
EPA, how do you intend to have the new Ombudsman re-submit or demand 
formal responses to the questions/requests previously raised?
    5. What is the status of the current case-file; hearing 
transcripts, documentation, etc. submitted by communities involved with 
the former Ombudsman's investigations?
    6. How exactly, are affected communities supposed to have faith in 
the National EPA Ombudsman's functions under OIG authority?
    7. What is the timeline in which the active investigations into EPA 
at the Bunker Hill Superfund Site and in the surrounding basin are to 
be resolved?
    8. Is it unreasonable for local communities to expect some timely 
conclusion to the outstanding/active investigations of EPA and Region-
10 before the release of the forthcoming Record of Decision by EPA 
(originally due in Dec. 2000) and now due in June 2002?
    9. Will the new Ombudsman personally visit the sites with active 
investigations? If so, please explain the schedule and purpose?
    10. What is the process for citizens and communities with new 
concerns about EPA actions in their area/region who want to report them 
to the proper authority?
    11. If Mr. Martin's administrative appeal and/or court actions over 
his concern about the transfer from EPA-OSWER to the EPA-OIG are 
successful, will he be given complete access and authority over the 
case files recently transferred to your office?
    12. Do you intend to delegate these questions to Ms. Boyer? If so, 
we would like to know exactly when that will take place, and how soon 
we can expect a reply.
    13. As you may or may not know, former Ombudsman Martin released 
``working findings'' outlining eight separate issues of questionable 
EPA actions at the Bunker Hill Superfund Site and in the surrounding 
basin. Will they remain an active part of the ongoing investigations of 
EPA here? If so, how?
    These are the priority questions from C.L.E.A.N. on behalf of many 
residents in our communities, elected leaders at all levels of 
government, including Congressional leaders who all have committed 
countless hours of testimony, research, documentation, etc. to prevent 
EPA from making more mistakes in our region. But more importantly, our 
collective efforts are also intended to hold accountable past and 
current EPA decisionmakers from unwanted actions in our region at 
taxpayer expense.
    Furthermore, we also want to understand your current position on 
Idaho's Congressional attempts (Sens. Larry Craig, Mike Crapo; Reps. 
Butch Otter and Mike Simpson) through S. 606, to reauthorize the 
National EPA Ombudsman's office as an independent function within EPA.
    We appreciate a timely response on the previous questions and the 
priority concerns outlined above. Please feel free to contact us at any 
time. Thank you.
            Sincerely,
                                   Carrie Oja,
                                             Chairperson.

                                   Bret C. Bowers,
                                             Manager.
                                 ______
                                 
              Community Leaders for EPA Accountability Now,
                                                     June 19, 2002.
John Iani, Administrator,
U.S. EPA--Region-10
Seattle, WA.

RE: Bunker Hill Superfund Site/Cd'A Basin ROD

    Dear Mr. Iani: The forthcoming Record of Decision on EPA's expanded 
Superfund cleanup in North Idaho is causing a great deal of anxiety in 
our region. The concerns stem partly from ongoing issues with EPA/
Region-10 which have arisen or are yet to be resolved since your 
appointment as Regional Administrator.
    Community Leaders for EPA Accountability Now respectfully seek 
responses and understanding from you on the following ``current'' 
topics:
    1. During a May 30, 2002 conference call with EPA, DEQ, agency 
contractors and others, there was reference to a ``draft'' ROD already 
circulating between the governments and Tribes. Is a draft being 
circulated? When do you anticipate presenting a final ROD to the State 
of Idaho and Coeur d'Alene Tribe for their acceptance?
    2. Why hasn't a Federal appointee to the Commission (likely EPA) 
been selected? When do you anticipate an appointment?
    3. During your meeting with C.L.E.A.N. last year, we briefly 
discussed the Memorandum of Agreement (MOA) on the Coeur d'Alene Lake 
Management Plan between EPA and the State of Washington. What is the 
current status of that MOA and what specifically does it involve?
    4. What can you tell us about how you intend to respond to 
allegations EPA is committing Clean Water Act violations at BHSS? 
Concerns in this area bring to light other ``outstanding'' human health 
and water quality issues that apparently the Basin ROD ignores. What 
will/is being done about the following:

          Remaining Yard remediation projects inside BHSS?
          Central Treatment Plant and acidic mine water 
        drainage?
          Central Impoundment Area seeps?
          Remaining needs for the Page Waste-water treatment 
        plant?

    5. Will the ROD address specific questions raised about the obvious 
need for lead-speciation and the bio-availability of lead throughout 
the basin?
    Other issues that have surfaced since you took office, or have yet 
to be resolved since your appointment as Regional Administrator 
include:
    1. In the Fall of 2001, EPA's Maryanne Deppman, Sheila Eckman and 
Dick Martindale attended a CLEAN meeting. At that time, they were 
presented data pulled from EPA's web-page containing present-tense 
language regarding human health blood-lead levels at Bunker Hill 
estimating that, ``. . . 7000 adults are effected.'' What specifically 
was done to rectify the web page and misleading information it 
contained?
    2. Why does EPA R-10's webpage ``In the News'' section show a large 
disproportionate share of BHSS/Basin related stories from one 
newspaper, rather than both local papers providing a majority of the 
coverage? For example, a simple inspection of the web-site shows:


------------------------------------------------------------------------
                                                               Percent
         January 2000-June 19, 2002            No. posted      Overall
------------------------------------------------------------------------
Spokesman Review............................          159            74
The Coeur d'Alene Press.....................           39            18
Independent/Other...........................           18             8
------------------------------------------------------------------------

    3. C.L.E.A.N. has received differing positions from EPA personnel 
on separate occasions on whether the Basin ROD will define work areas. 
At the first Basin Commission meeting in May, Maryjane Nearman stated 
that ROD will specify clean up levels, but no identified work areas. 
Later, in a separate C.L.E.A.N. meeting, Maryanne Deppman explained the 
ROD will identify work areas. What can we expect?
    4. Will/does EPA consider incorporated and unincorporated areas 
outside BHSS that have yet to be sampled as part of the ``listed/
designated Superfund'' site?
    5. Since the first discussion between C.L.E.A.N. and EPA 
representatives (Chuck Findley in June 2001) took place regarding EPA's 
``de-listing'' process, C.L.E.A.N. has received several different 
versions about de-listing the Lake in particular. Recognizing EPA and 
local communities in North Idaho have clear disagreements over the 
expanded Superfund boundary, what is EPA Region-10's process to de-list 
any area?
    6. How soon can EPA's ``de-listing'' process begin for Lake Coeur 
d'Alene?
    7. When do you anticipate to begin ``de-listing'' areas inside BHSS 
that have already been remediated?
    8. Why has Region-10 still failed to release final results of EPA's 
Summer 2001 public survey?
    9. Will EPA allow any further public input on the pending basin 
ROD?
    10. How much has the Basin-wide RI/FS and expenses associated with 
the pending ROD cost to date?
    11. What is your desired outcome with the Technical Assistance 
Grant funding being considered for the new grant applicant in North 
Idaho?
    12. Does EPA intend to use CERCLA funds for long-term monitoring 
needs for Lake Coeur d'Alene--and the Lake Management Plan?
    Final questions from C.L.E.A.N. involve Region-10's current 
position on critical matters as they relate to issues on a national 
scale, rather than simply local and regional issues. Please help us 
understand the following:
    1. Why did EPA fail to respond to 2001 interrogatories and requests 
for documents by the National EPA Ombudsman, as well as local elected 
leaders and industry representatives? When will you respond to the 
questions/requests?
    2. Why hasn't EPA and its partners in the ongoing Natural Resource 
Damages litigation (U.S. vs. ASARCO) settled their case and in turn, 
commit new, but limited resources to the ``outstanding'' needs at BHSS 
or the new Basin Environmental Improvement Project Commission?
    3. Why hasn't EPA Region-10 and National Administrator Whitman 
publicly endorsed S. 585 and the intent to supplement other Federal/
industry funds with traditional EPA funding?
    4. Should the final outcome involve recommendations that may change 
or impact past ROD(s) and or the pending ROD for the basin, please give 
us your best understanding of how EPA Region-10 intends to cooperate 
on:
     National EPA Ombudsman investigations that may lead to 
recommendations?
     National Academy of Sciences review of EPA Region-10?
    Finally, we've seen first-hand the difficulties associated with the 
creation and operation of the new Basin Environmental Improvement 
Project Commission. We believe Federal Representation is needed to 
accompany the three Idaho Counties, the States, and the Tribe's 
representatives. We ask that you help ensure that an appointment is in 
fact made to the commission and does take place soon. In the meantime, 
we are pleased that your office has been represented in the new 
process.
    On behalf of C.L.E.A.N. thank you for considering our request to 
help us understand the unresolved and pending concerns we have. We look 
forward to your responses. Please feel free to contact C.L.E.A.N. if 
you have any questions. Thank you.
            Sincerely,
                                                Carrie Oja,
            Chairman, Community Leaders for EPA Accountability Now.
                               __________
       A Partial Approach to Clean-up: EPA Mishandles Superfund 
                     Investigations, June 25, 2002
                              appendices*
---------------------------------------------------------------------------
    *Retained in Committee's file.
---------------------------------------------------------------------------
    Appendix A:  Letter from David A. Ullrich, Acting Regional 
Administrator, U.S. EPA Region 5, to Concerned Citizens of Lake 
Township, October 21, 1998.
    Appendix B:  ``An SAB Report: Review of EPA's Approach to Screening 
for Radioactive Waste Materials at a Superfund Site in Uniontown, 
Ohio,'' U.S. Environmental Protection Agency, Science Advisory Board, 
(EPA-SAB-EC-94-010, September 1994).
    Appendix C:  Memorandum from National Ombudsman Robert J. Martin to 
Region 5 Administrator Francis X. Lyons: ``Industrial Excess Landfill 
Case/Preliminary National Ombudsman Recommendations,'' October 20, 
2000.
    Appendix D:  Letter from Dr. Mark Baskaran, Wayne State University, 
to Chris Borello, Concerned Citizens of Lake Township, October 16, 
2001.
    Appendix E:  ``Record of Decision Industrial Excess Landfill 
Superfund Site, Uniontown, Stark County, Ohio,'' U.S. Environmental 
Protection Agency, (EPA/ROD/RO5-89/098, July 1989).
    Appendix F:  Maps of Industrial Excess Landfill: Figure 1 
Monitoring Well Locations, Figure 2 IEL Alternate Water Supply and 
Residential Wells. Exhibit 22 of IEL Groundwater Flow Patterns from 
``Comments on the Existing Public Record for the Industrial Excess 
Landfill for the Revision of the 1989 Existing Record of Decision,'' by 
Bennett & Williams Environmental Consultants, Inc., April 12,1999.
    Appendix G:  Lautenberg, Frank R., Chairman, and Dave Durneberger, 
Ranking Minority Member, ``Lautenberg-Durenberger Report on Superfund 
Implementation: Cleaning Up the Nation's Cleanup Program,'' Senate 
Subcommittee on Superfund, Ocean and Water Protection, May 1989.
    Appendix H:  Letter from Resnikoff, RWMA, to U.S. EPA, July 1, 
1993.
    Appendix I:  Ohio EPA Data on Tritium Levels at IEL
    Appendix J:  Letter from M. Resnikoff, RWMA, to Ohio EPA, April 14, 
1993.
    Appendix K:  Letter from Dr. Mark Baskaran, Wayne State University, 
to Chris Borello, Concerned Citizens of Lake Township, September 27, 
2001.
    Appendix L:  E-mail communication from Arjun Makhijani to Lois 
Chalmers, ``Re: Tritium--Naturally Occurring,'' February 5, 2002.
    Appendix M:  Testimony of Dr. Robert K. Simon, Beltz v. Hvbud 
Equipment, No. 1993-CV720, Stark County, OH, 1994.
    Appendix N:  Eyewitness Accounts from Liz and Harlan McGregor, 
April 8, 1999; Rex Shover, February 6, 1999; and Jim Shover, March 2, 
1999.
    Appendix O:  Letter from Elaine B. Panitz, MD, FACP, FACPM, to 
Assistant Director for Public Health Practice at ATSDR, December 1, 
1992.
    Appendix P:  ``Revised and Supplemented Report of Investigation by 
the United States of America Regarding Certain Statements by Charles M. 
Kittinger,'' U.S. v. Industrial Excess Landfill, Inc., U.S. District 
Court for the Northern District of Ohio, Eastern Division.
    Appendix Q:  ``Recap of IEL Customers,'' compiled by DOJ 
Investigators; ``IEL `Military' Dump Tickets,'' compiled by DOJ 
Investigators; and ``Industrial Excess Landfill, Inc., Daily Reports,'' 
July 8, 1969; August 4, 196X; August 25, 1969; October 26, 1970.
                              Introduction

    The handling of the Industrial Excess Landfill (EEL), a Superfund 
site in Uniontown, Ohio, has been a source of contention between the 
community and the U.S. Environmental Protection Agency (EPA) for over 
20 years. Under the terms of the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA), also known as Superfund, the 
EPA is charged with addressing both the release and the substantial 
threat of a release of a hazardous substance into the environment.\1\ 
Rather than fulfilling its mandate, however, the EPA has only 
grudgingly responded to the concerns of the people in this community 
and has essentially dismissed their concerns with no explanation for 
the problems that appear to afflict them. For over two decades, 
residents living near the site, represented by Concerned Citizens of 
Lake Township and American Friends Service Committee, have actively 
engaged the EPA over the quality of the characterization of the site, 
the accuracy of background data for various chemicals and radioactive 
materials, the methods used to test for contaminants, and the EPA's 
invalidation or dismissal of test results indicating the presence of 
radioactive contaminants at levels of concern. Although the community 
has raised several concerns regarding IEL, this report will focus 
specifically on the EPA's efforts to accurately characterize the 
potential for radioactive contamination of the site.
---------------------------------------------------------------------------
    \1\ United States Code, Title 42, Chapter 103, Subchapter 1, 
Section 9604(a)(1)(A).
---------------------------------------------------------------------------
    So far, results have been inconclusive as to whether or not 
radioactive contamination exists at IEL and several experts agree that 
further testing is required to find out. This report investigates the 
EPA's contradicting claims that the site has been adequately 
characterized. This site is only one example which serves to illustrate 
an apparent tendency at the EPA to give more weight to PRPs' financial 
considerations than to favoring remedies that are the most protective 
of human health and the environment. Illustrating this bias is EPA's 
general practice of allowing the parties suspected of polluting a site 
(known as Potentially Responsible Parties or PRPs) to perform the 
sampling and analysis of that site. The EPA states that ``[a]llowing 
the PRPs to conduct groundwater sampling is not unusual and has been 
done at many other Superfund sites like IEL. In fact, having PRPs 
conduct and pay for sampling activities is actually the strongly 
preferred method of conducting business in the Superfund program,'' 
(Appendix A). This practice inherently taints the entire process, 
however, leaving the impression that the EPA has been ``captured'' by 
the industry it is intended to monitor. After all, those polluting 
companies have a financial interest in coming up with clean results 
lest they have to foot the bill for an extensive clean-up of a site. 
POGO is focusing on the IEL case in order to investigate the success of 
the EPA's Superfund program in accomplishing its mission.

                               BACKGROUND

    The IEL Superfund site is located in Uniontown, Ohio, about 10 
miles southeast of Akron. From 1966 to 1980, the landfill accepted 
industrial wastes which contaminated the soil and groundwater at the 
site. As a result of the extensive contamination and proximity to 
homes, the Environmental Protection Agency placed IEL on the National 
Priorities List (NPL), meaning it was one of the country's most 
contaminated sites. The companies identified by the EPA as PRPs include 
B.F. Goodrich Company, Goodyear Tire & Rubber Company, Bridgestone/
Firestone, Inc., and GenCorp.
    In 1989, the EPA issued a Record Of Decision. (ROD) outlining an 
aggressive clean-up plan designed to prevent the further spread of 
contaminants which would include a protective cap and a pump-and-treat 
system. The cost of this remedy, in 1997 dollars, was estimated at 
$25.9 million. After the release of the ROD, further studies meant to 
fine-tune the remedy were conducted. In 1997, the PRPs took over the 
performance of those studies and, based on their data, the EPA issued 
an amendment to the ROD in March 2000. The amended ROD substituted a 
passive plan, called ``monitored natural attenuation,'' relying on rain 
water to cleanse the soil, for the original pump-and-treat design but 
retained a cap. The cost of this remedy, in 1997 dollars, was estimated 
at $13.6 million. Now, the EPA is attempting to replace the cap portion 
of the remedy to a process called ``phytoremediation,'' planting 
vegetation to absorb toxins, which will reduce the cost again to 
approximately $7 million, in 2002 dollars.
    ``Monitored natural attenuation'' and ``phytoremediation'' are 
processes by which a site is naturally corrected, without human 
intervention, within a timeframe that is reasonable. While 
phytoremediation and natural attenuation can be effective methods for 
addressing some sites, justification for such a remedy requires 
extensive site characterization and specific conditions. Selecting 
phytoremediation and natural attenuation at sites where unfavorable 
conditions exist could result in uncontrolled contaminant release. The 
decisions to formulate the original remedy and then change it without 
adequate site characterization came under considerable criticism from 
outside experts, Uniontown residents, and Congressional 
representatives.
    Numerous illnesses occurring near IEL, which typically tend to be 
caused by radiation, and eyewitness accounts of suspicious disposals at 
the landfill, raised the public's concern of possible radiation 
contamination at the site. The EPA was skeptical because no indication 
of an illegal disposal of radioactive materials at the landfill had 
been found during its records search. However, public pressure from the 
Uniontown community finally forced the EPA to test for radiation in the 
early 1990's. Throughout the 1990's up to the present, the EPA has 
maintained that test results have shown no sign of disposal of 
radioactive materials at IEL.
    But according to experts hired by a community group, Concerned 
Citizens of Lake Township (CCLT), and independent scientists, the EPA 
sampling and testing has actually been inconsistent and inconclusive at 
best. The problems have included the decision by the EPA to limit its 
testing to groundwater instead of the much more rigorous method of 
testing soil core samples; background wells that are too few in number 
and too close to the landfill to be untainted by the site; and the 
invalidation or dismissal of results indicating the presence of 
elevated levels of radiation, with seemingly weak justification by the 
EPA.
    Of primary concern is the fact that much of the data has been 
highly inconclusive -neither indicative of the presence nor absence of 
radioactive contaminants. Yet, the EPA consistently interprets this 
data as proving the absence of such contamination and insists that it 
has found no indication of radioactive contaminants at IEL. With test 
results unable to credibly rule out radioactive contamination, such a 
vast array of anecdotal information, and some high level test results, 
as well as an unacceptable level of risk if the EPA is wrong, the EPA 
appears biased in its assessment of the site. Even when the former 
owner of IEL came forward last year with information of buried nuclear 
materials at the site, the EPA was skeptical and its year-long 
investigation failed to seriously investigate his allegations.

                           SITE INVESTIGATION

    There have been numerous and varied problems with the EPA's 
handling of IEL. From the very beginning, unsubstantiated assumptions 
based on record searches and information requests seem to have clouded 
the judgment of EPA officials handling the EEL case. Because this 
initial record search did not uncover any indication of unauthorized 
disposal of radioactive contaminants at IEL, the EPA has stated that it 
does not consider it likely that such contaminants are present. Yet the 
very fact that such a disposal would have been unauthorized, and in 
fact illegal, imply that record searches are not likely to be fruitful. 
This initial assumption contributed to the selection of groundwater 
monitoring over soil core surveys and a less robust method of testing 
than may have otherwise been chosen. Other problems include the 
inadequate determination of background levels of radiation, inadequate 
characterization of the site, and questionable accuracy of the tests. 
Though EPA has noted in the past that IEL has undergone more 
radiological testing than any other Superfund site, disputed methods 
and results of these tests has cast doubt on the EPA's conclusions 
about radiological contamination at the site.
    Community concerns led the EPA's Office of Solid Waste and 
Emergency Response to request that the Science Advisory Board (SAB) 
conduct a review of EPA's procedures at IEL. The SAB is part of the EPA 
and serves as a technical peer review panel. It established an ad hoc 
panel to conduct its review of EEL (Appendix B, p.8). The SAB's report 
stated that, ``. . . the [groundwater] tests performed were appropriate 
and adequate to detect the occurrence of radionuclides,'' (Appendix B, 
p.4). This statement has repeatedly been used by the EPA to support its 
selection of testing methods and the resultant conclusion that there is 
no widespread problem of radiation at IEL. However, SAB's seemingly 
positive statement regarding the groundwater program was not without 
conditions. The SAB's full finding said that only with the 
implementation of various recommendations made by the SAB, would the 
program be adequate. These recommendations included increasing the 
number of background wells and testing for radiation at least once a 
quarter until successive quarterly samples produce a constant level of 
gross alpha and beta that is close to background.\2\ The EPA followed 
none of SAB's recommendations, and in fact no sampling or testing for 
radiation occurred between 1993 and 2000. Yet the EPA continues to 
claim that the SAB supports its groundwater program.
---------------------------------------------------------------------------
    \2\ Other recommendations include a protective wet-weather survey 
to monitor seepage points near the landfill during or following storm 
events, including a proactive search for contaminants where they are 
most likely to be found; also a full accounting of dissolved and 
particulate phase radioactivity. An SAB Report, pp. 2-3.
---------------------------------------------------------------------------
    There has also been an investigation into the handling of the site 
by the EPA's National Ombudsman. The Ombudsman program, among other 
things, handles complaints from citizens and industry, undertakes 
formal investigations, and takes part in dispute resolutions.\3\ The 
Ombudsman, in his preliminary findings, recommended that oversight and 
additional characterization of the site was necessary, and that the EPA 
should include trenching of the site to obtain a more complete picture 
of contamination at the landfill and the establishment of a 
``comprehensive monitoring network offsite and performance of microbial 
studies . . . to further understand the impact of potential migration 
of wastes to nearby homes and drinking water wells,'' (Appendix C, 
p.13).
---------------------------------------------------------------------------
    \3\ http://www.epa.gov/earth100/records/a00154.html, 2 May 2002.
---------------------------------------------------------------------------
Looking in the Wrong Place
    There are three general approaches available to test for the 
presence of radioactive contamination at a site: ground surveys, 
groundwater monitoring, and soil core samples. Ground surveys are used 
routinely for initial screening and only detect radiation near the 
ground's immediate surface. Once a site has become overgrown with 
vegetation, it is difficult and often infeasible to use this method. 
Groundwater monitoring is effective at detecting the presence of 
soluble radioactive materials if they are both leaching into the 
groundwater and the concentrations are high enough so that they can be 
distinguished from background concentrations. The third option, soil 
core sampling, is more effective at identifying smaller quantities of 
immobile wastes than groundwater monitoring, but only if the core 
borings encounter those wastes, which is often difficult if the wastes 
are not spread over a wide area (Appendix B, pp. 11-12).
    There are several concerns with the way in which the EPA determined 
which of these approaches to use. The EPA has stated that, based on 
studies it has performed, groundwater monitoring is the best way to 
find radioactivity at IEL if it exists there and that it is sufficient 
to properly characterize the waste buried at IEL. The EPA's own SAB, 
however, disagreed. The EPA used two scientific studies to support its 
selection of a groundwater monitoring program rather than a soil core 
sampling program--one demonstrating the infeasibility of the core 
monitoring program and the other supporting the adequacy of groundwater 
monitoring. However, according to the SAB, both reports ``include 
technical flaws and provide no clear evidence that groundwater 
monitoring is more sensitive in detecting the presence of radioactive 
material in the landfill than would be a soil core sampling program,'' 
(Appendix B, p. 2). The SAB goes on to state, ``[i]t certainly does not 
follow that the network of wells would detect the radiation with high 
probability if enough waste had been dumped to cause a threat to human 
health. . . . The Panel recognizes that both of these reports are based 
on a large number of assumptions that have not been validated for the 
IEL site,'' (Appendix B, pp.18-19).
    Furthermore, as mentioned earlier, groundwater monitoring is only 
effective if the material being monitored is both soluble and leaching 
into the groundwater at high enough concentrations to be detected. 
However, some radioactive contaminants, such as plutonium tend to 
adhere to surfaces such as soil, sides of containers, and filter paper 
(Appendix D). One would therefore not expect to find plutonium 
concentrations through groundwater testing, even if it existed at the 
site. The EPA has insisted that trying to find radioactive 
contamination by soil core sampling would be like ``trying to find a 
needle in a haystack,''\4\ and that the cost to sample soil cores from 
the entire 30 acres, in dollars, time, and possible exposure to toxic 
chemicals of the field workers and local citizens, is unacceptably high 
(Appendix B, p.17). Contrary to this assessment, however, outside 
scientists familiar with IEL are emphatic about the need to implement a 
soil coring program in addition to groundwater monitoring. These 
experts have stated on numerous occasions that, because some 
contaminants are not soluble, testing only groundwater for radiation 
will not give an accurate measurement of what radioactive contaminants 
may be buried at the site. By their assessments, groundwater testing is 
not an adequate methodology to properly characterize radiation at IEL. 
A soil core survey of the entire site may not be necessary. Anecdotal 
information from eyewitnesses, historical aerial photos of lagoon pits, 
and the location of wells that have consistently shown elevated levels 
of radiation point to much smaller areas that may be appropriate for a 
limited soil core sampling program.
---------------------------------------------------------------------------
    \4\ United States Environmental Protection Agency, Office of Public 
Affairs, Region 5, Questions and Answers About the Industrial Excess 
Landfill Superfund Site, December 1992, p. 6.
---------------------------------------------------------------------------
Tainted Background Wells
    Although a groundwater monitoring program without a soil core 
survey may not be adequate to detect radiation at TEL, groundwater 
monitoring can yield useful results if it is implemented properly. 
Before groundwater monitoring can even begin, it is important to 
determine the natural levels of chemicals and radiation that would have 
existed at a location had the contamination not been there. This is 
called the backgrounds\5\ concentration. This data is used as the 
control against which data from the site can be compared so that the 
site-related contaminants can be distinguished. If ``background'' wells 
are tainted by the same contaminants as the site being tested, those 
wells do not give an accurate representation of the background 
concentration. This point cannot be overemphasized. Without an accurate 
measurement of background concentrations, any comparison of site 
samples will be skewed. Background data should be gathered from the 
local groundwater aquifer, close enough to the site to be from the same 
soil and rock formation, but far enough away not to be effected by site 
contaminants (Appendix B, pp.13-14). Several background wells over a 
large area are necessary to determine what is truly background.
---------------------------------------------------------------------------
    \5\ Background includes man-made radiation that is ubiquitous, such 
as that from atmospheric fallout from nuclear weapons testing and 
accidents such as Chernobyl.
---------------------------------------------------------------------------
    During its initial investigation of IEL, the EPA found that surface 
water from the landfill travels to Metzger Ditch, which creates the 
eastern boundary of the landfill (Appendices E & F). Additionally, the 
United States Geological Survey found that the groundwater flow pattern 
at IEL is radial which creates a complicated hydrogeological system, 
making it difficult to determine what areas have been affected by 
contaminants from IEL. This finding emphasizes the need for extensive 
sampling and testing to determine the true background of the area.
    At IEL, the EPA uses only two background wells. One of the 
background wells is about 1000 feet north of the northeastern comer of 
the site, and the other is immediately adjacent to the eastern bank of 
Metzger Ditch. Those two wells are the source of background data for 
groundwater despite the conclusion by outside scientists and the EPA's 
own SAB that the wells are not sufficient to reliably characterize 
background conditions. Even if the groundwater flow was uncomplicated, 
the SAB recommends five to ten wells at intermediate and varying 
distances from the site to adequately determine background. The SAB 
stated in its report on IEL that ``the two wells are clearly inadequate 
for characterizing background,'' (Appendix B, p.14).
    The groundwater flow pattern at IEL creates uncertainty about what 
direction the groundwater will carry contaminants, and therefore about 
which wells are affected. Furthermore, in 1989, the EPA stated that 
samples of surface water, sediment, and soil associated with Metzger 
Ditch indicated that site-related contaminants discharge into the ditch 
(Appendix E). The possibility that these contaminants have similarly 
affected the background well next to Metzger Ditch is too significant 
to be ignored. The SAB declared data from that well to be 
``particularly suspect'' because of the groundwater flow pattern at the 
site and the well's proximity to the landfill (Appendix B, p.14). If 
the background wells are affected by site contaminants, contaminated 
groundwater will appear to be ``natural'' for the area, and therefore 
not actionable, when compared with background levels. A larger data set 
is necessary to give a reliable and scientifically credible 
characterization of background radionuclide conditions (Appendix B, p. 
14).
    The EPA has ignored the SAB's concerns, and argues that it has 
correctly designated only the two wells as background wells and that it 
has adequately determined background concentrations of radioactive 
materials. Despite contradictory findings by the EPA's own scientists, 
it has refused to construct and test additional background wells.
Botched Tests by the EPA and PRPs
    To determine whether there is radioactive contamination at IEL, the 
EPA screened groundwater from monitoring wells and residential wells 
for general radioactive parameters.\6\ As mentioned earlier, it is 
essential to have an accurate basis for comparison in order to 
determine whether or not radioactive contaminants are present. It is no 
less important to have proper collection and analysis of the samples 
being tested. If the procedure for handling samples is not followed or 
is only inconsistently followed, the results would be highly 
unreliable. If wells are not sampled the same way each time, results 
cannot be compared to each other--either from the same well over time 
or from different wells across area and time.
---------------------------------------------------------------------------
    \6\ The general radioactive parameters are gross alpha, alpha 
spectroscopy, gross beta, gamma spectroscopy, tritium, and Carbon-14. 
Alpha spectroscopy is done when the gross alpha exceeds a set level, 
and is a more specific analysis to determine the type and level of 
radioactive material in the groundwater.
---------------------------------------------------------------------------
    Unfortunately, according to the EPA itself, there have been an 
inordinate number of errors and inconsistencies that cast enormous 
doubt on the accuracy of testing results from IEL. For example, as 
mentioned earlier, both of the studies which were pivotal in selecting 
groundwater monitoring over soil core sampling, were highly criticized 
by the SAB. Furthermore, the company that conducted one of the tests, 
the PRC Corporation, was then contracted by the EPA to collect the 
first seven rounds of samples at EEL. Serious errors were made by PRC 
Corp. during the collection of samples at EEL including broken chains 
of custody,\7\ inappropriate filtering of samples from residential 
wells, failure to record the volume of water passed through filters and 
the dry weight of the collected solids of filtered samples,\8\ failure 
to record the number of filters used on a number of samples, and the 
collection of samples in plastic containers which were to be tested for 
tritium. Instead of hiring a new contractor to collect samples, the EPA 
continued to use PRC Corp. at IEL. En 1997, responsibility for the 
collection of samples was handed over to the PRPs, who have an obvious 
vested interest in the outcome of the tests. The company hired by the 
EPA to oversee the tests is PRC Corp. (now known as Tetra Tech), the 
very company that had made so many mistakes in the past when working 
for the EPA. After taking over sample collection, the PRPs also made 
mistakes which may skew the results, such as inadequate purging of 
wells prior to sampling, the failure to immediately preserve samples 
for plutonium testing with acid, and the use of plastic containers for 
samples which were to be tested for tritium.
---------------------------------------------------------------------------
    \7\ The chain of custody is the system by which samples are 
constantly monitored to ensure that they are not tampered with.
    \8\ ``The failure to record the volume of water passed through the 
filter and the dry weight of collected solids for filtered samples at 
the IEL site was such that a full accounting of the dissolved and 
particulate concentrations of radioactive constituents could not be 
made.'' An SAB Report, p. 22.
---------------------------------------------------------------------------
    Furthermore, the analysis of these samples has often been 
questionable. In 2000, a Department of Justice criminal probe revealed 
that analysts at an EPA lab in Chicago may have manipulated test 
results to benefit polluters in approximately a thousand cases, 
including several Superfund sties. One of those sites was IEL. 
Regardless of the Justice Department's investigation, the EPA reasoned 
that the test results were still usable since the analysts implicated 
in the scandal were only part of the team that analyzed the IEL 
samples. Additionally, inappropriate standards have been used to 
analyze some of the samples for radioactive contamination at IEL and 
have been criticized by outside scientists. The Minimum Detectable 
Activity (MDA) is the level of each contaminant that will be tested for 
at a site. Amounts of radiation in groundwater below this level are not 
detected. If the MDA levels are set too high, potentially harmful 
levels of radiation will remain undetected. When testing reveals a 
gross alpha level above a certain level\9\ Federal regulations require 
a more specific analysis of individual contaminants. On a number of 
occasions, the MDA set for gross alpha at TEL was higher than the level 
at which Federal regulations mandate such a breakdown. More problematic 
is the fact that there have even been occasions when the MDA level at 
TEL was set above the Maximum Contaminant Level,\10\ the level which 
the EPA considers hazardous to human health and safety. When testing 
reveals a gross beta level above a certain level\11\ Federal 
regulations require a more specific analysis of individual 
contaminants.\12\ EPA failed to do this full characterization and 
identification of gross beta during the early rounds; of testing.
---------------------------------------------------------------------------
    \9\ 5 pCi/L
    \10\ 15 pCi/L
    \11\ 50 pCi/L
    \12\ United States Code of Federal Regulations, 40 CFR 141.26 
(b)(4)(i).
---------------------------------------------------------------------------
    In addition to these mistakes, however, there are the larger 
problems of procedures and standards that have been approved by the 
EPA, but that outside scientists believe may not be protective of human 
health and the environment. Such procedures and standards include the 
filtering of monitoring well samples and the use of PRPs to conduct the 
investigation.
    The method consistently used for testing at IEL has been EPA's 
``Gross Alpha and Gross Beta Radioactivity in Drinking Water.'' This 
method contains an inherent bias because it is intended to test 
drinking water. Therefore, it allows the filtration of sediment from 
the samples of groundwater, thereby increasing the likelihood of 
underestimating, or missing completely, any man-made radiation such as 
plutonium that tends to adhere to sediment or soil. Although the EPA 
states that the regulations require filtration to be done,\13\ several 
experts disagree with the EPA's use of the method at this site. The SAB 
also found this to be a problem, stating that, ``EPA does not address 
radioactivity in suspended sediment, [making it] difficult to address 
whether or not the levels observed in the filtrate are within 
background levels, ``(Appendix B, p.15).
---------------------------------------------------------------------------
    \13\ United States Environmental Protection Agency, Office of 
Public Affairs, Region 5, Questions and Answers About the Industrial 
Excess Landfill Superfund Site, December 1992, p. 8.
---------------------------------------------------------------------------
    The EPA's use of PRPs to conduct the investigation of a site is a 
systemic problem that potentially taints the clean-up of every 
Superfund site. A 1989 report from the Chairman and Ranking Member of 
the Senate Subcommittee on Superfund, Ocean and Water Protection found, 
among other things, that statistically, the involvement of the PRP's 
led to cheaper remedies that did not necessarily protect health and 
safety. The report stated, ``Enforcement lead sites (those sites where 
EPA is seeking to make potentially responsible parties assume cleanup 
costs) rely more on so-called containment (e.g. preventing the movement 
of rather that [sic] detoxifying) of contamination and less on 
treatment (including the most permanent types of treatment) than sites 
designated for public funding. This data raises the disturbing 
possibility that EPA, in an effort to achieve settlements or to compel 
responsible parties to pay for cleanups, may be sacrificing health and 
environmental standards required by the law,'' (Appendix G, pp.10-11). 
This study was done at a time when regulations required the EPA to lead 
the investigations of Superfund sites, but to negotiate settlements 
with the PRPs. Current practice within the EPA allows much deeper 
involvement by the PRP's, even allowing them to conduct the very tests 
which help determine the remedy. One can only assume that more 
involvement by the PRPs would only exacerbate the problem cited in the 
Subcommittee's 1989 report. The PRP's inclination to minimize both 
current and future costs is to be expected. It is the EPA's job to 
protect the public from this conflict.
    At EEL specifically, when the PRPs took over sampling in 1997, they 
did not perform any sampling or testing for radiation until August 
2000. After only one round of radiation testing, the EPA accepted the 
PRPs decision to drastically reduce the number of wells to be tested 
for radiation from 50 to 7. Unfortunately, the wells that were dropped 
from testing included several that were found to have elevated levels 
of radiation in the past.

                         FINDINGS OF RADIATION

    Both the EPA and the Ohio EPA (OEPA) have collected groundwater 
samples for radiochemical analyses. Even with all the errors, 
inconsistencies in sampling, and questionable methods and standards, 
there have been findings of radioactive materials at EEL from the 
beginning--all of which have been discounted by the EPA and the PRPs.
    At EEL, gross alpha concentrations have been consistently elevated, 
sometimes as much as tens of times higher than background well 
measurements for the rest of the county (Appendix H); gross beta has 
been elevated during numerous sampling rounds in a number of wells (as 
recently as May 2001), but has been consistently higher in two wells in 
particular; uranium has been found in various wells during every round; 
plutonium, which is man-made, has been found during several sampling 
rounds in various wells; and tritium and technicium-99, two other man-
made radioactive contaminants, have been found in several wells. 
However, none of these findings have been given any credence by the 
EPA. The gross alpha and gross beta readings have been attributed to 
turbid water samples and naturally occurring radionuclides. The uranium 
findings have been dismissed as being background concentrations. 
Plutonium, a man-made radionuclide, has been found a number of times 
and dismissed for various reasons: in 1990, the findings were 
invalidated; in 1991 and 1992 the EPA found traces of plutonium in deep 
groundwater that were said to be at only marginally detectable 
concentrations, which the EPA declared to be inconclusive; in November 
2000, plutonium was found in deep groundwater in the background well 
next to Metzger Ditch, and the EPA said the concentration must be a 
background level because it was found in a background well; plutonium 
was detected in two other wells during the November 2000 round, but 
again the EPA found them to be inconclusive. There have also been 
several findings of tritium, another man-made radionuclide, at levels 
above Federal drinking water standards that were deemed invalid by the 
EPA. However, the OEPA found numerous tritium levels well above 
background that were validated (Appendix I). Because these were not 
above the drinking water standards, however, the EPA has concluded that 
it is not consistent with a public health concern. The technicium-99, 
yet another man-made radioactive contaminant, that was found was 
dismissed, again because it was not above the drinking water standard 
and therefore not considered to be of concern.
    Other scientists take a different view of the findings that the EPA 
has dismissed so readily. For example, the OEPA's measurement for gross 
alpha from a shallow well in August 1992 was 140 times background 
measurements for the rest of the county. According to one outside 
scientist, measurements of that magnitude cannot be due to naturally 
occurring radioactivity (Appendix J). After analyzing November 2000 
results, a second outside scientist concurred that there is man-made 
radiation present at the landfill, saying specifically that the uranium 
results ``can either be due to bad data or there is some serious 
contamination of non-natural uranium . . .'' (Appendix K).
    Scientists also differ from the EPA regarding the findings of 
plutonium. Upon review of the November 2000 results, Dr. Mark Baskaran 
found the concentration of plutonium in the groundwater at IEL to be 
about 1000 times higher than that found in surface waters such as 
lakes, rivers, or oceans, indicating that the plutonium present at IEL 
is ``most likely derived from one or more local sources,'' (Appendix D) 
rather than from atmospheric fallout. The mere fact that the plutonium 
was found in groundwater as opposed to surface water indicates that it 
is most likely not due to atmospheric fallout. He also found the amount 
of measurement uncertainties, the EPA's statistic estimating the 
accuracy of test results, associated with the plutonium concentrations 
to be ``ridiculously high.'' He stated that any academic institution 
where there is any active environmental radioactivity research being 
conducted would be able to improve upon that precision by 100 to 1000 
times (Appendix D).
    On several different occasions, validated groundwater test results 
from, the OEPA showed elevated levels of tritium, including levels up 
to 6,600 pCiIL. According to Dr. Arjun Makhijani, concentrations of 
``300-4000 picocuries per liter in groundwater can be regarded as of 
anthropogenic [man-made] origin, provided that the measurements are 
reliable,'' (Appendix L). While these levels are not direct evidence of 
harmful levels of radiation, because tritium is rarely found naturally 
in groundwater, they can be viewed as evidence of site-related 
radioactive contamination (Appendix B, p.15). Because technicium-99 is 
also man-made radiation, its very presence in groundwater from the 
landfill can also be viewed as evidence of site-related radioactive 
contamination.
    Additionally, in response to two testing rounds that were 
invalidated by the EPA, an outside expert reviewed the methods of one 
of the labs which EPA blamed for the invalidation. He found that, while 
the methods used by the lab were different from those used by the EPA, 
they were not wrong and that the results were ``no more invalid'' than 
those from the EPA's own labs (Appendix M, p.51).

                           ANECDOTAL EVIDENCE

    Several witnesses have testified to seeing U.S. military vehicles 
entering and leaving IEL, some with radiation markers (Appendix N). 
Each witness reported strikingly similar accounts of suspicious U.S. 
Army activity at IEL in the late 1960's and the early 1970's. Of the 
four eyewitness accounts discussed here, two have extensive experience 
in recognizing radiation symbols, and a third is the former owner and 
operator of the landfill.
    In a notarized statement to the EPA, Liz and Harlan McGregor of 
Uniontown, swore to seeing ``many army trucks come into the landfill in 
the early 1970's. . . . [The trucks] were loaded with 50-100 stainless 
steel canisters on flatbed trucks. [The] canisters had hazardous 
markings on them . . . . The tankers would come in all through the 
night and dump.'' A decade later a U.S. Army engineer visited their 
home in Uniontown to inspect the premises without explanation.
    Rex Shover, a second eyewitness, served on the Uniontown Volunteer 
Fire Department from 1958 to 1976. In a sworn affidavit dated February 
6, 1999, Mr. R. Shover stated that during his time as a volunteer 
fireman, he ``personally saw tanker trucks carrying radioactive 
insignia enter the Industrial Excess Landfill late at night after the 
landfill was closed.'' Mr. R. Shover also asserted that his firefighter 
training included the labeling of radioactive materials. ``I am 
familiar with and can recognize placards and labels used for 
radioactive materials.''
    At the IEL public meeting held in Uniontown on March 2, 1999, Mr. 
R. Shover read a letter on behalf of a third eyewitness, his brother 
Jim Shover, who now lives in California. In the letter, Mr. J. Shover 
stated that he had spent his youth in Uniontown and had been employed 
at IEL as a mechanic's helper in 1964--and 1965. Mr. J. Shover stated 
that, after joining the U.S. Navy in 1966, he often returned to 
Uniontown, and recalls seeing U.S. Army tanker trucks with radioactive 
material placards entering and leaving IEL on several occasions between 
1966 and 1971. During his Navy career, Mr. J. Shover received training 
in nuclear warfare, industrial radiology, radioactive materials, and 
associated health problems in humans, and served on the Nuclear, 
Biological, and Chemical rapid response team, making him uniquely 
qualified to identify military vehicles and radiation symbols. He 
identified the trucks as ``specially designed double-lined tankers 
designed to transport liquid radioactive waste material.''
    In addition, in 1992, the Agency for Toxic Substances and Disease 
Registry (ATSDR) requested health information regarding IEL from Dr. 
Elaine Panitz. In her response she stated, ``the case of Patient #1 . . 
. presents disturbing evidence that radiation (and possibly other 
carcinogens such as benzene, vinyl chloride, and chlorophenols) may be 
causing neoplasms [tumors] among residents surrounding the IEL site. 
The routes of exposure are likely to include ingestion (well water, 
fruits and vegetables), skin absorption (well water for bathing and 
washing clothes, as well as swimming or playing in marshy areas near 
IEL), and inhalation (radioactive dusts released from the landfill, 
radioactive gases released from contaminated ground and groundwater),'' 
(Appendix O).
    These eyewitness accounts coupled with the above medical opinion 
raise reasonable questions about the material buried at IEL as well as 
the EPA's strategy in investigating credible concerns from Uniontown 
residents. During a recent year-long EPA investigation of the testimony 
of IEL former owner, Charles M. Kittinger, none of these eyewitness 
accounts were considered, even though the EPA itself had statements 
from each of them. This oversight casts considerable doubt on the 
notion that the EPA is attempting to find the truth.
    Charles M. Kittinger, the owner of the EEL site from 1965 to 1972, 
went to EPA officials a year ago to admit that he had allowed the 
illegal disposal of nuclear materials by the U.S. Army at EEL. Since 
his disclosure, the EPA appears to have spent its resources attempting 
to discredit Mr. Kittinger and his allegations but has yet to determine 
the truth by a more thorough characterization of the site.
    That significant time has passed since the incident obviously 
confuses the issue, raising questions as to the accuracy of witness 
accounts and 30 year old memories. This becomes a difficult obstacle in 
analyzing personal testimonies. This is to be expected. What is 
problematic is the inconsistency with which the EPA investigators use 
this fact. For example, while some statements from Mr. Kittinger's 
testimony are discredited due to ``the possibility that his 
recollection of events has been colored,'' (Appendix P, p. 7) others 
are taken at their most literal meaning, such as the exact size of the 
hole or the capacity of the trucks that carried the materials, which 
the government maintains cannot be accurate. By insisting that Mr. 
Kittinger's memory must be entirely accurate or entirely a fabrication, 
the investigators are able to dismiss facts and test results that may 
indicate something unusual. Under these parameters, no weight is given 
to evidence of a 1969 excavation site because it is 40 feet from where 
Mr. Kittinger indicated and 15 feet smaller than Mr. Kittinger had 
recalled (Appendix P, p. 97). In another example, a remote sensing 
anomaly is found a mere 11 feet deeper than Mr. Kittinger said the 
containers of nuclear material were buried, and is therefore entirely 
dismissed (Appendix P, p. 116). If it can be suggested that time has 
clouded Mr. Kittinger's memory of facts that the government wishes to 
deny, then time may also blur the memory of such specific details.
    The government's conclusions that Mr. Kittinger's claims are 
unfounded are partly based on the lack of documentation of the alleged 
delivery of this nuclear material. However, if such an illegal 
operation had occurred, the involved parties would not likely be 
interested in keeping detailed records of their actions. By setting 
preposterous standards of proof for the investigation, it appears the 
EPA has ensured that it will not come up with an answer it doesn't 
want.
    Even when there does appear to be some documentation, the 
investigators go out of their way to discredit the existing documents. 
At one point, the EPA's report of its investigation states that based 
on a review of the delivery tickets, no deliveries were made by the 
U.S. Army. It was not until the original draft of the report was 
completed and questions were raised on this point, that the EPA 
investigators admitted that no delivery tickets were reviewed that were 
dated prior to 1970 (Appendix P, p.16). Considering Mr. Kittinger's 
belief that the delivery was made in 1968 or 1969, though possibly 
1971, it is not surprising that the investigation had not revealed 
corroborating documents.
    When earlier tickets were later obtained and reviewed, 
corroborating evidence was discounted. Three entries in the delivery 
log (for which the delivery tickets are missing) were marked as 
deliveries from the ``U.S. Army'' (Appendix P, p. 19, & Appendix Q). 
However, it is assumed by the investigators that what was actually 
meant was the U.S. Army National Guard, which does not have access to 
nuclear materials. Because the government has a clear interest in the 
outcome of the investigation, it is disingenuous to draw such favorable 
conclusions from inconclusive evidence.
    The investigators spent considerable time analyzing the policies 
and regulations of the U.S. Army, the Army National Guard, the 
Department of Energy, and NASA, apparently in order to discount the 
theory that nuclear materials would have been disposed of by them at 
IEL. However, it can clearly be assumed, even without such analysis, 
that a strictly illegal act would not be permitted by any of these 
agencies' regulations. Therefore, the extensive analysis of these 
regulations seems to be no ping more than a diversionary tactic.
    For the investigation, the government solicited experts to assist 
in the analysis of historical aerial photographs and to apply remote 
sensing technologies to the landfill. The investigation report itself 
states, ``the limitations of both the aerial photo analysis and the 
remote sensing technologies must be acknowledged,'' (Appendix P, p.6). 
But even when using these limited methods, the investigators seem to 
intentionally overstate their case, drawing conclusions where none are 
warranted.
    In the report's description of the aerial photo analysis, the 
investigators admit that the photographs are incomplete and ``do not 
exclude the possibility that the hole Mr. Kittinger described 
existed,'' but only that the available photos cannot prove that it did. 
Even after admitting that the photos were inconclusive, however, the 
investigators use them to imply that Mr. Kittinger's allegations are 
false, stating, ``the aerial photographs from the relevant timeframe 
cast significant doubt on Mr. Kittinger's description of the hole,'' 
(Appendix P, p. 6).
    The investigators' analysis of the remote sensing technologies is 
similarly flawed. The entire test, designed by the investigators, 
relies on the assumption that the radioactive materials are buried 
apart from any other metal objects. Yet this assumption is in direct 
conflict with Mr. Kittinger's statements that the radioactive materials 
were buried near several junked cars. Given this contradiction, the 
report admits, this technology can tell ``nothing about the presence or 
absence'' of containers of nuclear material (Appendix P, p. 113). Yet 
despite this flaw, the results from the test are continually used 
throughout the report to discredit Mr. Kittinger's claims.
    The remote sensing test, in fact, did turn up the one result that 
may actually corroborate Mr. Kittinger's claims, yet the investigators 
attempt to explain it away. The report states that there is ``one 
`anomaly' that might be caused by stainless steel,'' which would be 
consistent with Mr. Kittinger's claims. Their defense against this 
startling evidence is to state that, ``this anomaly could also be 
caused by other materials, ``(Appendix P, p. 7). Here again, 
inconclusive evidence, and even evidence that favors Mr. Kittinger's 
claims, is implied to favor their own case.
    It is true that Mr. Kittinger's testimony raises more questions 
than it answers. The real failure of this investigation is not that it 
is unable to either prove or disprove Mr. Kittinger's claims, but that 
it is willing to brush these new questions aside without addressing 
them. The ultimate conclusions of the report are based on the failure 
to differentiate between evidence that does not definitively confirm 
Mr. Kittinger's claims and evidence that proves Mr. Kittinger's claims 
false. Ultimately, the evidence is inconclusive. The EPA seems willing 
to assume that inconclusive results imply there is no nuclear material 
at the site, thereby possibly putting hundreds of lives at risk. EPA's 
National Ombudsman has called for extensive testing and site 
characterization which would give much more conclusive evidence than 
was gained through this investigation.

                               CONCLUSION

    The Industrial Excess Landfill in Uniontown, Ohio, is one case 
study of the EPA's mishandling of Superfund sites. The overt influence 
of the polluters in Superfund clean-ups must be addressed to ensure 
that the EPA is adequately protecting human health and safety as well 
as the environment. Furthermore, the lack of community access or 
influence, particularly in comparison to that of the polluters, should 
be immediately rectified. It is, after all, the communities that have 
the most to lose from an inadequate clean-up, while it may be noted 
that the polluters have the most to gain by a cheap remedy. It is the 
responsibility of the EPA to remain unbiased and fairly remedy 
Superfund sites.

                            RECOMMENDATIONS

     Legislatively create a National Ombudsman's Office which 
is wholly independent of the EPA. The Office should be placed in either 
a White House office or as part of the legislative branch, perhaps 
attached to the General Accounting Office.
     All ongoing investigations into a site, such as those 
performed by the SAB or the National Ombudsman, must be completed, and 
the recommendations made available to the public prior to the 
implementation of a Record Of Decision.
     The Potentially Responsible Parties (PRPs) should 
reimburse the government for the cost of, rather than being allowed to 
initially pay for, a site-related investigation. The EPA should be 
prohibited from allowing PRPs to conduct investigations or testing.
     If the government continues to allow the PRPs to remain a 
part of the investigation of sites, it should allow and facilitate, 
through financial and other means, communities to hire qualified 
experts to take samples for analysis from the site. The data and 
recommendations resulting from a community-led investigation should be 
given equal weight as those submitted by the PRPs.
     The scientific validity of standards and procedures 
utilized by the EPA, such as the use of filtering, needs to be re-
evaluated by an independent organization such as the National Academy 
of Science.
     Technical corrections or recommendations geared toward 
strengthening protections or addressing community concerns, such as 
those made by the Science Advisory Board (SAB) or the National 
Ombudsman's Office, that are not implemented by the EPA, must be 
justified and certified by the EPA Administrator.

  

                                  
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