[Federal Register Volume 66, Number 2 (Wednesday, January 3, 2001)]
[Notices]
[Pages 365-368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-112]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6928-8]


Draft Guidance for National Hazardous Waste Ombudsman and 
Regional Superfund Ombudsmen Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of available draft guidance with request for comment.

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SUMMARY: The Environmental Protection Agency (EPA) has developed and is 
requesting comment on the ``Draft Guidance for National Hazardous Waste 
Ombudsman and Regional Superfund Ombudsmen Program.'' The Office of 
Solid Waste and Emergency Response (OSWER) National Hazardous Waste and 
Superfund Ombudsman (National Ombudsman) and the Regional Superfund 
Ombudsmen (Regional Ombudsmen) were established to provide help to the 
public in resolving issues and concerns raised about the solid and 
hazardous waste programs administered by OSWER.
    The purpose of this draft guidance is to explain the role of the 
Ombudsmen, their scope of activity, and the guidelines under which they 
coordinate and carry out their responsibilities. EPA believes this 
draft guidance will improve the effectiveness of this program by giving 
the Ombudsmen and those who may contact them a clear and consistent set 
of operating policies and expectations.

DATES: To make sure we consider your comments we must receive them by 
March 5, 2001. Comments received after that date will be considered to 
the extent feasible; however, EPA will not delay finalizing the 
guidance to accommodate late comments.

ADDRESSES: You may request copies of the ``Draft Guidance for National 
Hazardous Waste Ombudsman and Regional Superfund Ombudsmen Program'' by 
any of the following ways:
    Mail: write to: Docket Coordinator, Headquarters, U.S. EPA, CERCLA 
Docket Office, (Mail Code 5201G), Ariel Rios Building, 1200 
Pennsylvania Avenue, NW, Washington, D.C. 20460.
    Phone: call: (703) 603-9232, or (800) 424-9346.
    Internet: http://www.epa.gov/swerrims/whatsnew.htm 
    If you wish to send us comments on the guidance, you must send them 
in any one of the following ways:
    Mail:  Docket Coordinator, Headquarters, U.S. EPA, CERCLA Docket 
Office, (Mail Code 5201G), Ariel Rios Building, 1200 Pennsylvania 
Avenue, NW, Washington, D.C. 20460.
    Express Mail or courier (such as Federal Express, other overnight 
delivery, or courier): Docket Coordinator, Headquarters, U.S. EPA, 
CERCLA Docket Office, 1235 Jefferson Davis Highway, Crystal Gateway #1, 
First Floor, Arlington, Virginia, 22202.
    E-mail: in ASCII format only to: [email protected].

FOR FURTHER INFORMATION CONTACT: Caroline Previ, phone number (202) 
260-2593, Office of Solid Waste and Emergency Response (Mail Code 
5101), U.S. Environmental Protection Agency, Ariel Rios Building, 1200 
Pennsylvania Avenue, N.W., Washington, D.C. 20460, or the Superfund 
Hotline, phone number (800) 424-9346 or (703) 412-9810 in the 
Washington, D.C. metropolitan area.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The program managers and staff in the Regions and at Headquarters 
are committed to implementing the federal solid waste and hazardous 
waste statutes managed by EPA, being responsive to the public, and 
resolving issues and concerns brought to their attention. In some 
cases, the individual or group raising a given concern does not believe 
the official problem solving channels dealt fairly or fully with their 
situation. In such cases, the individual or group may request 
assistance from the Office of Solid Waste and Emergency Response 
(OSWER) Ombudsman, an Agency official designated to receive inquiries 
and complaints about the administration of OSWER programs. The National 
and Regional Ombudsmen receive many calls for assistance each year--
ranging from routine questions about hazardous waste laws to specific 
complaints about allegedly improper activities conducted at a site or 
facility.
    Today's Federal Register notice introduces a policy entitled 
``Draft Guidance for National Hazardous Waste Ombudsman and Regional 
Superfund Ombudsmen Program'' which explains the role and conduct of 
the OSWER National Ombudsman and the Regional Superfund Ombudsmen, 
scope of their activity, and the guidelines under which they coordinate 
and carry out their responsibilities. The main objective in issuing 
this guidance is to improve the effectiveness of this program by giving 
the Ombudsmen and those who may contact them a clear and consistent set 
of operating policies and expectations. This draft guidance would cover 
only the Ombudsmen who work on OSWER related issues, and staff who 
supply primary support or assistance to the Ombudsmen.
    This guidance, when finalized, is not intended to be, and should 
not be construed as a rule. Use of the guidance would not be legally 
binding on EPA managers or staff or on other parties. EPA is seeking 
public comment at this time to ensure hearing the widest range of views 
and obtaining all information relevant to the development of the 
guidance.

II. Background

    The hazardous and solid waste management laws passed by Congress 
created some of the most complex programs administered by EPA and the

[[Page 366]]

States. Recognizing this, Congress established a National Ombudsman 
function in 1984 as part of amendments to the Resource Conservation and 
Recovery Act (RCRA) so that the public would have someone to come to 
with questions and concerns about the RCRA program. Soon after, we 
issued the ``Hazardous Waste Ombudsman Handbook'' to help the newly 
created National Ombudsman administer, and the public understand what 
to expect from, the Ombudsman program. During the initial years of the 
National Ombudsman program, most of the assistance sought by the public 
was for help understanding the complex RCRA program. The Ombudsman 
spent most of his time responding to general questions and directing 
requests to the appropriate sources. The handbook reflected this role.
    When the statutory authority for the National Ombudsman program 
expired in 1989, OSWER retained the function as a matter of policy. In 
1991, OSWER broadened the National Ombudsman's scope of activity to 
include other programs administered by OSWER, particularly the 
Superfund program. The National Ombudsman is located in the EPA 
Headquarters office in Washington, DC.
    In 1995, EPA created a Regional Superfund Ombudsman position in 
each EPA Regional office as part of the Superfund Administrative 
Reforms. The Regional Ombudsmen program, at a minimum, operates in 
support of the Superfund program, but--depending on the Region--may 
also provide support to other programs, including RCRA, Underground 
Storage Tanks (UST), and chemical emergency prevention and 
preparedness.
    Over the years, the public gained a better understanding of EPA's 
hazardous waste programs. Requests for answers to basic questions more 
frequently became requests for resolution of complaints. The Ombudsman 
function evolved to reflect these changes. The existing guidance no 
longer reflects the Ombudsman function as it has evolved.
    In the Fall of 1999, the EPA established an internal workgroup to 
update the ``Hazardous Waste Ombudsman Handbook.'' In preparing the 
updated guidance, the workgroup met with representatives of the U.S. 
Ombudsman Association, and evaluated and considered guidance documents 
from this organization, as well as other organizations with Ombudsman 
programs and the American Bar Association's draft Standards for the 
Establishment and Operation of Ombudsman Offices. To the extent 
possible, EPA has drafted guidelines which reflect key aspects of 
various external models in a manner that supports the Ombudsman's 
independent operation within the context of a civil service position 
within the Federal government structure. EPA developed these procedures 
to meet the specific needs of the OSWER Ombudsman program and they may 
not be completely consistent with Ombudsmen principles established by 
other organizations.
    The draft guidance explains to the public the role of the National 
Hazardous Waste and Superfund Ombudsman and Regional Superfund 
Ombudsmen today, their scope of activity, and the guidelines under 
which they coordinate and carry out their responsibilities. We believe 
the draft guidance will provide for effective and fair implementation 
of OSWER's Ombudsman program.

III. Summary of Draft Guidance

    The draft ``Guidance for the National Hazardous Waste and Superfund 
Ombudsman and Regional Superfund Ombudsmen Program'' puts forth our 
philosophy concerning the basic operating principles and procedures for 
the OSWER Ombudsman program. Ombudsmen functioning under this guidance 
are authorized to provide information and look into complaints and 
grievances related to OSWER's administration of the programs 
implemented under the following authorities:
     Comprehensive Environmental Response, Compensation and 
Liability Act (CERCLA) or Superfund
     Resource Conservation and Recovery Act (RCRA), including 
Underground Storage Tanks (UST)
     Emergency Planning and Community Right-To-Know Act (EPCRA) 
or Superfund Amendments and Reauthorization Act, Title III
     Oil Pollution Act
     Clean Air Act, Section 112r
    The Ombudsman may be called to serve in a number of capacities: (1) 
providing information and facilitating informal contact with EPA staff, 
(2) conducting informal inquiries and developing recommendations to 
address difficult problems, (3) helping to mediate disputes, and (4) 
making recommendations to Agency senior management regarding procedural 
and policy changes aimed at improving the program. The goal of the 
Ombudsman program is to respond to requests in an appropriate, 
transparent and objective manner as promptly, informally and discretely 
as possible. The guidance briefly discusses each of these functions, 
but we anticipate that a significant amount of the Ombudsman's time 
will be dedicated to looking into issues raised by the public 
concerning decisions that EPA has made. Because of this, most of the 
draft guidance is devoted to outlining the Ombudsman's responsibilities 
in carrying out this activity. Overall, the Ombudsman's role is to 
listen to all sides in an impartial, objective manner, to provide 
assistance in trying to understand and resolve the problem, and, if 
necessary, to recommend possible solutions to senior Agency managers. 
It is important to note that the Ombudsman does not have authority to 
change decisions made by program managers or staff.
    Generally, the National Ombudsman handles cases of national 
significance. The Regional Ombudsmen handle the more routine requests 
for assistance and conducts more informal inquiries to investigate 
complaints. The guidance explains how the Ombudsman will evaluate 
requests for assistance, and how inquiries will be conducted.
    Whatever capacity the Ombudsman is serving in, he is expected to 
act with independence, impartiality and confidentiality--the basic 
operating principles of all Ombudsmen. The guidance provides a brief 
description of how the Ombudsman will demonstrate these 
responsibilities effectively and discusses limitations with respect to 
confidentiality imposed by existing laws and regulations that the OSWER 
Ombudsman must abide by as federal civil servant.
    Our goal is to receive feedback on the draft guidance from the 
widest range of interested parties possible. We welcome comments on any 
or all aspects of the guidance. Your comments will help us improve this 
document. We invite you to provide your comments on our approach and 
your ideas on alternative approaches we have not considered. Explain 
your views as clearly as possible and provide a summary of the 
reasoning you used to arrive at your conclusions. Tell us which parts 
of the guidance you support, as well as the parts with which you 
disagree. Your comments must be submitted by March 5, 2001. EPA will 
review the public comments received on the guidance and where 
appropriate, incorporate changes responsive to those comments.
    We specifically request your comments on the following three topics 
related to the independence of the Ombudsman. These issues emerged as 
key issues during the development of this guidance.

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1. Does the Organizational Structure of the Ombudsman Program Impact 
the Independence of the Ombudsman?

    One of the main principles an Ombudsman operates under is the 
ability to work independently in determining which complaints to 
investigate, how an inquiry should proceed and what are the findings of 
an inquiry. EPA recognizes the importance of an Ombudsman being and 
appearing to be independent from the organization he/she is 
investigating. EPA believes both the National Ombudsman and the 
Regional Ombudsmen are able to look independently into problems and 
facilitate the communication that can lead to a solution. We do not 
select which cases the Ombudsman will take, nor direct how the 
Ombudsman will investigate a complaint. We do not interfere with or 
attempt to influence the Ombudsman as he formulates his findings and 
recommendations.
    From the time Congress established the National Ombudsman, this 
function has been a federal government employee reporting to a senior 
Agency official. Because the Ombudsman is a federal employee, he/she 
cannot be completely independent in the normal course of relations 
between a supervisor and his/her employee. Currently, the National 
Ombudsman reports directly to the Assistant Administrator for OSWER. We 
believe this is the appropriate reporting structure for the National 
Ombudsman. The Assistant Administrator for OSWER is the senior 
presidential appointee responsible for the programs the Ombudsman is 
looking into and he/she is in the best position to use the advice of 
the National Ombudsman. For the most part, each Regional Ombudsman 
reports to the appropriate Regional Superfund division director, 
directly or through an intermediate supervisor. No matter what capacity 
an Ombudsman is serving in at any given time, we have worked to ensure 
the Ombudsman's ability to operate with maximum independence.
    The organizational location and operation of the National Ombudsman 
and the Regional Ombudsmen is a matter of EPA discretion. We agree that 
it is very important that the Ombudsman be and appear to be independent 
from the organization he is investigating.
    Does this structure ensure the appropriate level of interaction 
between the OSWER Ombudsman and senior EPA officials while maintaining 
enough independence for the Ombudsman to operate effectively?

2. Should the Ombudsman Have Sole Discretion To Decide How Cases Are To 
Be Handled?

    The guidance states that the National and Regional Ombudsmen have 
the discretion either to accept a request for assistance or decline to 
act. While the National Ombudsman and the Regional Ombudsmen work 
fairly autonomously, coordination in this area is crucial. Requests for 
assistance may come directly to either the National or a Regional 
Ombudsman. To avoid duplication of effort, the guidance lays out 
general procedures for evaluating incoming requests.
    The guidance requires that before conducting an inquiry that is 
primarily related to one Region, the National Ombudsman will consult 
with the relevant Regional Ombudsman. We believe this consultation will 
help the National Ombudsman make a fully informed decision about 
whether it is more appropriate for him/her to handle the matter, to 
refer it to the Regional Ombudsman, or to decline to investigate. 
Similarly, a Regional Ombudsman is expected to notify the National 
Ombudsman if he/she has been requested to conduct an inquiry that may 
be nationally significant. The Regional Ombudsman should discuss with 
the National Ombudsman how he/she plans to proceed with the inquiry, 
including the level of involvement that the National Ombudsman wishes 
to have in the inquiry.
    We expect that a Regional Ombudsman and the National Ombudsman 
almost always will agree on who should handle an inquiry. In those rare 
situations when there is not agreement the Assistant Administrator or 
Deputy Assistant Administrator for OSWER will resolve the dispute. The 
guidance requires the Regional Ombudsman (in consultation with the 
appropriate Regional Administrator or Deputy Regional Administrator) 
and the National Ombudsman will each forward a memorandum to the 
Assistant Administrator for OSWER, or jointly hold a conference call 
explaining his/her perspective on the disagreement. The Assistant 
Administrator or Deputy Assistant Administrator for OSWER will then 
make the decision about who should handle the inquiry.
    Is this the appropriate way to resolve such disputes?

3. Should an Ombudsman's Scope of Inquiry Be Restricted To Protect 
EPA's Litigation Position?

    We considered three alternative approaches to this question. The 
approach we selected and which is reflected in the draft guidance 
generally precludes the Ombudsmen from investigating an issue or 
dispute which is in litigation, i.e., pending before a court. The 
presumption is that Ombudsmen should not take action on an issue or 
dispute which is in litigation since that issue is in the hands of an 
independent tribunal for decision, as provided for by the relevant 
statute. In addition, the public has access to that tribunal to raise 
serious concerns. For example, in the case of a consent decree 
presented to a court, public comment will be solicited on the decree, 
and the court will consider those comments and then determine if it is 
in the public interest to enter the decree. In the case of a challenge 
to agency action, affected members of the public can intervene and 
present argument to the court, and the court will decide whether we 
demonstrated an adequate basis for its action and whether we acted in a 
non-arbitrary manner and in accordance with law. This approach also 
avoids creating the false impression that the Ombudsman's office is an 
alternative forum for arguing controversial issues, which would result 
in confusion, inefficiency, and potentially conflicting statements 
about the Agency's position. The OSWER Ombudsman program is not 
intended or authorized to circumvent existing channels of management 
authority or established formal administrative avenues of appeal.
    However, we believe that there may be situations where it is 
appropriate for the Ombudsman to investigate actions EPA has taken, 
even where those actions are before a court for review. For instance, 
the Ombudsman may have information to suggest that our action at issue 
in the legal proceedings is infirm or erroneous. Or the Ombudsman may 
bring to Agency management information of significant public concern 
about an Agency action at issue in the courts. In either case, if the 
Ombudsman believes an inquiry is necessary, he/she should communicate 
that information to the appropriate Agency official before proceeding 
with his/her inquiry. Such an investigation would proceed only after 
concurrence by the Assistant Administrator or Deputy Assistant 
Administrator for OSWER or the appropriate Regional Administrator or 
Deputy Regional Administrator, in consultation with EPA's lead 
litigation office, taking into account its potential impact on pending 
litigation.
    It should be noted that this presumption against investigations 
applies to an ``issue or dispute'' that is before a court for 
consideration. Thus,

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the fact that a site or facility is in litigation does not necessarily 
mean that the Ombudsman should refrain from conducting an investigation 
of all issues arising at that site or facility. For instance, if the 
issue before a court is the authority of the Agency to get access to a 
piece of property, that would not create a presumption against an 
investigation of alleged deficiencies regarding remedy selection.
    For your information, we are providing details of the two 
alternative approaches to this matter we considered but did not select. 
The first alternative approach removed any restrictions on the 
Ombudsman's ability to conduct an inquiry concerning an issue or 
dispute which is in litigation. The Ombudsman would be free to conduct 
an inquiry regardless of whether an issue or dispute was in litigation.
    The second alternative approach would restrain the Ombudsman from 
conducting new fact gathering concerning decisions made based on the 
administrative record. The Ombudsman would remain able to audit the 
existing information and data that were part of the Agency's factual 
record. Under this model, if the Ombudsman concluded that additional 
fact finding and data gathering were necessary, that would become part 
of his recommendation. If the Agency agreed with this recommendation, 
it would conduct additional information gathering by utilizing the 
appropriate program staff and established procedures. The Ombudsman 
would be precluded from undertaking separate fact finding activities 
such as public meetings and formal on-the-record interviews. This 
approach would address concerns that an Ombudsman's activities may 
create a second record outside of the official administrative record, 
which could confuse and potentially mislead the public and could damage 
the Agency's position during litigation.
    Is the chosen approach the most appropriate?

    Dated: December 27, 2000.
Michael Shapiro,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
Response.
[FR Doc. 01-112 Filed 1-2-01; 8:45 am]
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