Hazardous Waste: EPA's National and Regional Ombudsmen Do Not	 
Have Sufficient Independence (27-JUL-01, GAO-01-813).		 
								 
Through the impartial and independent investigation of citizens' 
complaints, federal ombudsmen provide the public an informal and 
accessible avenue of redress. 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. At the Environmental Protection 
Agency (EPA), a national hazardous waste ombudsman was		 
established in 1984. In recent years, the national ombudsman has 
played an increasingly prominent role through his investigations 
of citizen complaints referred by Members of Congress. As the	 
number and significance of the ombudsman's investigations have	 
increased, so have questions about the adequacy of available	 
resources and whether there are other potential impediments to	 
fulfillment of the ombudsman's responsibilities. Amid concerns	 
about whether there are institutional barriers to the fulfillment
of the EPA national hazardous waste ombudsman's responsibilities,
GAO (1) compares the national ombudsman's operations with	 
professional standards for independence and other factors and (2)
determines the relative roles and responsibilities of EPA's	 
national and regional ombudsmen. GAO found that key aspects of	 
EPA's national hazardous waste ombudsman differ from professional
standards for ombudsmen who deal with inquiries from the public. 
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. However, EPA's national ombudsman is	 
located within the Office of Solid Waste and Emergency Response  
(OSWER), the organizational unit whose decisions the ombudsman is
responsible for investigating, and his budget and staff resources
are controlled by unit managers within OSWER. GAO also found that
compared with EPA's national hazardous waste ombudsman, the	 
regional ombudsmen are less independent and play a reduced role, 
primarily responding to informational inquiries on a part-time	 
basis. Most of the ombudsmen in EPA's 10 regional offices hold	 
positions within the regional organization that appear to	 
compromise their independence. The regional ombudsmen split their
time between performing duties related to the ombudsman function 
and duties related to the implementation of the hazardous waste  
programs that they are responsible for investigating.		 
Communication between the national and regional ombudsmen is	 
limited, despite operating guidelines that call for close	 
communication. The national ombudsman periodically refers	 
informational inquiries to the regional ombudsmen but rarely	 
requests their assistance in investigations.			 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-01-813 					        
    ACCNO:   A01344						        
    TITLE:   Hazardous Waste: EPA's National and Regional Ombudsmen Do
             Not Have Sufficient Independence                                 
     DATE:   07/27/2001 
  SUBJECT:   Dispute settlement 				 
	     Hazardous substances				 
	     Investigations by federal agencies 		 
	     Standards evaluation				 
	     Waste management					 
	     Superfund Program					 

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GAO-01-813
     
Report to Congressional Requesters

United States General Accounting Office

GAO

July 2001 HAZARDOUS WASTE EPA?s National and Regional Ombudsmen Do Not Have
Sufficient Independence

GAO- 01- 813

Page i GAO- 01- 813 EPA's National and Regional Ombudsmen Letter 1

Results in Brief 2 Background 4 Key Aspects of EPA?s National Hazardous
Waste Ombudsman Are

Not Consistent With Relevant Professional Standards 6 EPA?s Regional
Ombudsmen Serve on a Part- Time Basis and Play a

Lesser Role Than the National Ombudsman 16 Conclusions 21 Recommendations
for Executive Action 22 Agency Comments 23 Scope and Methodology 24

Appendix I Investigations Initiated by EPA?s National Ombudsman Between
October 1992 and December 2000 26

Appendix II Distribution of National Ombudsman Investigations by EPA Region
28

Appendix III Comments From the Environmental Protection Agency, Including
Comments From the National Ombudsman 29

Tables

Table 1: Line Management Positions for Regional Superfund Ombudsmen 17

Figures

Figure 1: Estimated Percentage of Time Spent on Regional Ombudsman
Activities in Calendar Years 1999 and 2000 18 Contents

Page ii GAO- 01- 813 EPA's National and Regional Ombudsmen Abbreviations

ABA American Bar Association EPA Environmental Protection Agency GAO General
Accounting Office OSWER Office of Solid Waste and Emergency Response

Page 1 GAO- 01- 813 EPA's National and Regional Ombudsmen

July 27, 2001 The Honorable Paul E. Gillmor Chairman, Subcommittee on
Environment

and Hazardous Materials Committee on Energy and Commerce House of
Representatives

The Honorable Michael Bilirakis House of Representatives

Through the impartial and independent investigation of citizens? complaints,
federal ombudsmen provide the public an informal and accessible avenue of
redress. 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. At the Environmental
Protection Agency (EPA), the 1984 amendments to the Resource Conservation
and Recovery Act first established a national hazardous waste ombudsman, who
operated under the aegis of the act. 1 Over time, EPA expanded the
ombudsman?s jurisdiction to include Superfund 2 and other hazardous waste
programs managed by the Office of Solid Waste and Emergency Response. EPA?s
national hazardous waste ombudsman is charged with responding to citizens?
concerns, assisting industry in complying with environmental regulations,
and handling complaints arising from the relevant programs. The ombudsman?s
activities range from providing information to investigating the merits of
complaints.

Recognizing that the national hazardous waste 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. As of March
1996, EPA had installed ombudsmen in each of its 10 regional offices as part
of a larger effort to adopt administrative reforms in the Superfund program.
While the national ombudsman?s jurisdiction covers

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.

United States General Accounting Office Washington, DC 20548

Page 2 GAO- 01- 813 EPA's National and Regional Ombudsmen

any hazardous waste program, the regional ombudsmen are more likely to focus
on Superfund issues.

In recent years, the national ombudsman has played an increasingly prominent
role through his investigations of citizen complaints referred by Members of
Congress. As the number and significance of the ombudsman?s investigations
have increased, so have questions about the adequacy of available resources
and whether there are other potential impediments to fulfillment of the
ombudsman?s responsibilities. Both the House and the Senate are currently
considering legislation that would formally reauthorize an office of the
ombudsman within EPA and increase the ombudsman?s independence and
investigative authority.

Concerned about whether there are institutional barriers to the fulfillment
of the EPA national hazardous waste ombudsman?s responsibilities, you asked
us to (1) compare the national ombudsman?s operations with professional
standards for independence and other factors and (2) determine the relative
roles and responsibilities of EPA?s national and regional ombudsmen. To
address our first objective, we compared the national ombudsman?s operations
with relevant standards of practice, including those published or drafted by
the American Bar Association (ABA), The Ombudsman Association, and the U. S.
Ombudsman Association. Because legal and practical constraints preclude EPA
from implementing some aspects of the existing standards, we also looked at
other federal agencies whose ombudsmen deal with inquiries from the public.
We chose four agencies whose ombudsmen had sufficient longevity and workload
to allow for a meaningful comparison: the Agency for Toxic Substances and
Disease Registry, the Federal Deposit Insurance Corporation, the Food and
Drug Administration, and the Internal Revenue Service. Regarding the
relative roles and responsibilities of EPA?s national and regional
ombudsmen, we developed a data collection instrument to collect information
from the ombudsmen in EPA?s 10 regional offices and compared what we learned
with information obtained from the national ombudsman.

Key aspects of EPA?s national hazardous waste ombudsman differ from
professional standards for ombudsmen who deal with inquiries from the
public. 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. However, EPA?s national ombudsman is located within the Office
of Solid Waste and Emergency Response (OSWER), the organizational unit whose
decisions the ombudsman is responsible for Results in Brief

Page 3 GAO- 01- 813 EPA's National and Regional Ombudsmen

investigating, and his budget and staff resources are controlled by unit
managers within OSWER. The adequacy of the ombudsman?s resources under this
arrangement is also in question, but more information is needed to determine
the appropriate level. In addition, this arrangement undermines another
fundamental requirement of an effective ombudsman: impartiality. That is to
say, the ombudsman must be free from initial bias and conflicts of interest.
The operation of EPA?s ombudsman differs from professional standards in
other important areas as well. In terms of accountability, for example,
EPA?s ombudsman does not prepare an annual report to keep the public
informed of his activities. Ombudsmen at other federal agencies come closer
to meeting professional standards. For example, at the Federal Deposit
Insurance Corporation and the Internal Revenue Service, the ombudsman?s
office has its own budget and reports directly to the head of the agency.
Officials from EPA?s OSWER have drafted new guidance to improve the
effectiveness of the ombudsman?s operations and have proposed an
organizational change that offers greater control to the ombudsman over his
budget and staffing. However, these measures do not fully address concerns
about the ombudsman?s independence.

Compared with EPA?s national hazardous waste ombudsman, the regional
ombudsmen are less independent and play a reduced role, primarily responding
to informational inquiries on a part- time basis. Most of the ombudsmen in
EPA?s 10 regional offices hold positions within the regional organization
that appear to compromise their independence. The regional ombudsmen split
their time between performing duties related to the ombudsman function and
duties related to the implementation of the hazardous waste programs that
they are responsible for investigating. Communication between the national
and regional ombudsmen is limited, despite operating guidelines that call
for close coordination. The national ombudsman refers informational
inquiries to the regional ombudsmen but rarely requests their assistance in
investigations.

This report contains recommendations to the Administrator, EPA, concerning
actions needed to strengthen the independence, impartiality, and
accountability of the national hazardous waste ombudsman and to address
impairments to the independence of the regional ombudsmen. In commenting on
a draft of this report, EPA officials, including the Acting Assistant
Administrator of OSWER and the national ombudsman, generally agreed with our
conclusions and recommendations.

Page 4 GAO- 01- 813 EPA's National and Regional Ombudsmen

The term ?ombudsman? originated in Sweden and has generally come to mean an
impartial official who receives complaints and questions, collects relevant
information through an investigation or inquiry, and works toward the
resolution of the particular issues brought to his attention. Ombudsmen may
make recommendations for the resolution of an individual complaint or
improvements related to more systemic problems. Depending on their
jurisdiction, ombudsmen may protect those who work within an organization or
those who are affected by the organization?s actions. An ombudsman who
handles concerns and inquiries from the public, such as EPA?s national
hazardous waste ombudsman, is often referred to as an ?external? ombudsman.
In contrast, internal or

?workplace? ombudsmen provide an alternative to more formal processes to
deal with conflicts and other issues that arise in the workplace. 3

While there are no federal requirements or standards specific to the
operation of ombudsman offices, 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. 4 In addition,
several professional organizations have published or drafted relevant
standards of practice for ombudsmen. Among these organizations are the
Ombudsman Committee of the ABA, The Ombudsman Association, and the U. S.
Ombudsman Association. In July 2000, ABA?s Ombudsman Committee released a
draft of its recommended Standards for the Establishment and Operation of
Ombudsman Offices, which are intended to expand on a 1969 ABA resolution
that identified essential characteristics of ombudsmen. 5 An article
published by the U. S. Ombudsman Association, ?Essential Characteristics of
a Classical

3 See Human Capital: The Role of Ombudsmen in the Dispute Resolution (GAO-
01- 466, Apr. 13, 2001) for information on the role of the ombudsman in
resolving workplace issues. 4 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.

5 The recommended standards have since been modified as a result of internal
review comments; ABA?s House of Delegates will consider them for final
approval in August 2001. To help draft the recommended 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
Ombudsmen Association, the U. S. Ombudsman Association, and the University
and College Ombuds Association. Background

Page 5 GAO- 01- 813 EPA's National and Regional Ombudsmen

Ombudsman,? elaborates on these factors and explains why they are necessary.
6 Similarly, The Ombudsman Association has published a generic position
description for ombudsmen, including critical skills and characteristics,
and the U. S. Ombudsman Association has drafted a model ombudsman act
appropriate for state governments.

Both the recommendations of the Administrative Conference of the United
States and the standards of practice adopted by ombudsman associations
incorporate the core principles of independence, impartiality, and
confidentiality. The ABA?s recommended standards define these
characteristics as follows:

 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.

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 role of EPA?s national ombudsman has evolved since it was first
established in the 1984 amendments to the Resource Conservation and Recovery
Act. 7 In 1991, EPA expanded the ombudsman?s jurisdiction to

6 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).

7 The statutory authorization for the ombudsman?s office expired in 1988.
EPA has maintained the ombudsman function as a matter of policy since then.

Page 6 GAO- 01- 813 EPA's National and Regional Ombudsmen

encompass all of the hazardous waste programs managed by OSWER, with the
most significant addition being the Superfund program. EPA appointed
Superfund ombudsmen in each of its 10 regional offices in 1996, when the
agency adopted a number of administrative reforms in the Superfund program.
8

The nature of the national ombudsman?s work has also changed; although the
emphasis was initially on responding to informational inquiries, he has
taken on more detailed investigations in recent years. In January 2001, the
ombudsman temporarily suspended his ongoing investigations over
disagreements with OSWER management about staffing in the ombudsman?s
office. However, we did not address the issue in this report because
investigation of internal personnel disputes was beyond the scope of our
work.

Important characteristics of EPA?s national hazardous waste ombudsman differ
from the professional standards of practice adopted by various ombudsman
associations. While EPA is not required to comply with such standards- and,
in some instances, faces legal or practical constraints to doing so- the
standards can serve as a guideline for implementing the core principles of
an effective ombudsman: independence, impartiality, and confidentiality.
Contrary to these standards, EPA?s national ombudsman is not independent of
the organizational unit whose decisions he is responsible for investigating.
Moreover, this lack of independence raises questions about the ombudsman?s
impartiality and hence his ability to conduct a credible investigation.
EPA?s national ombudsman also falls short of existing standards in other
areas, such as accountability. When we examined the operations of ombudsmen
at other federal agencies, we found that these agencies have found ways to
increase their ombudsmen?s ability to adhere to professional standards of
practice. EPA is considering several changes to the operations of the
national ombudsman, but these changes do not address existing limitations on
the ombudsman?s independence and, in some instances, they impose additional
constraints.

8 According to the legislative history of the provision that established the
ombudsman, the House Committee on Energy and Commerce anticipated that
?fulfilling this important function will require staff resources at EPA
headquarters in Washington and at each of the regional offices.? However,
OSWER and regional officials told us that the level of regional ombudsman
activity was very limited prior to 1996. Key Aspects of EPA?s

National Hazardous Waste Ombudsman Are Not Consistent With Relevant
Professional Standards

Page 7 GAO- 01- 813 EPA's National and Regional Ombudsmen

Existing professional standards contain a variety of criteria by which an
ombudsman?s independence can be assessed, 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 and advocate that the ombudsman report to the highest authority
in the organization.

As currently constituted, some aspects of EPA?s national hazardous waste
ombudsman are not consistent with existing criteria for independence. In
terms of organizational structure, the national ombudsman is located within
OSWER, the organizational unit whose decisions the ombudsman is responsible
for investigating. In addition, the ombudsman reports to and receives
performance evaluations from one of OSWER?s managers. Thus, OSWER management
is in a position to control or limit the ombudsman?s performance of assigned
duties. OSWER managers told us that the organizational structure was
established as a matter of convenience and simply reflects the fact that the
ombudsman?s jurisdiction encompasses the hazardous waste programs within the
office?s purview. The officials also said that at the time the structure was
established, the ombudsman?s workload consisted primarily of responding to
informational inquiries rather than conducting investigations.

Although OSWER managers acknowledge concerns about the appearance of
constraints on the ombudsman?s independence, they point out that most
decisions about specific hazardous waste sites or facilities are made at the
regional office level. The officials believe that OSWER?s top management is
sufficiently removed from site- specific decisions to mitigate such
concerns. According to the ombudsman, however, decisions on the most
significant or costly sites are the most likely to be elevated to OSWER?s
management level at EPA headquarters. He also believes that locating the
ombudsman?s office outside of OSWER would increase his independence and
lessen the likelihood that he would be reporting to someone who was EPA?s
Ombudsman Lacks

Organizational and Functional Independence

Page 8 GAO- 01- 813 EPA's National and Regional Ombudsmen

once responsible for making decisions on specific hazardous waste sites or
facilities.

On a functional basis, OSWER?s control over the ombudsman?s budget and staff
resources also affects the ombudsman?s independence. For example, until
recently, the ombudsman did not have a separate budget and was on a ?pay-
as- you- go? system in which prior approval was required for every
expenditure. In November 2000, OSWER created a separate line item within the
OSWER budget for ombudsman- related expenditures. According to OSWER
managers, having a separate line item made sense in light of the ombudsman?s
increased workload. In addition, they decided that it is better to give the
ombudsman a budget up front and tell him that he has to set priorities and
work within the amount provided than to approve funding on a case- by- case
basis. They recognized that the latter approach could create the impression
that OSWER is hampering the ombudsman?s independence any time a funding
request is disapproved because such a decision would limit his involvement
in particular cases. From the ombudsman?s perspective, knowing the amount of
available funding at the beginning of a fiscal year allows him to better
prioritize and manage his activities. However, without supervisory
authority, he does not have the same discretion as other OSWER managers over
how the budget resources are used.

OSWER exercises similar control over the ombudsman?s staff resources. Since
the ombudsman is a nonsupervisory position, he does not have authority to
hire, fire, or supervise staff. 9 OSWER managers approve all staff detailed
or assigned to the ombudsman function and prepare their performance
appraisals. Until recently, the ombudsman function was carried out with only
one full- time, permanent staff member- the ombudsman himself. To aid the
ombudsman as his workload has increased, OSWER has supplied a variety of
temporary help including, at various times, a part- time assistant, an
individual on a short- term detail, technical consultants, and student
interns and retired persons funded through special grant programs. In April
2001, an individual who had been assigned to work with the ombudsman under a
6- month detail was granted permanent status in that position. In addition,
according to OSWER officials, a total of 3 full- time- equivalent staff-
years have now been

9 According to OSWER officials, the national ombudsman has always been a
nonsupervisory position. Initially, the national ombudsman operated as a
separate entity within OSWER under the title of ?office of the ombudsman.?
The office was abolished in 1991; this change was made to more accurately
reflect the size and staffing of the function.

Page 9 GAO- 01- 813 EPA's National and Regional Ombudsmen

budgeted for the ombudsman function, and OSWER management secured an
exemption for the ombudsman function from an agency- wide hiring freeze.
However, because the ombudsman continues to be a nonsupervisory position,
OSWER managers still prepare the performance appraisals for any of the staff
assigned to the ombudsman.

Another issue relating to independence is the adequacy of the resources
available to the ombudsman. Some evidence suggests that the ombudsman?s
resources have not kept pace with his increased workload. Information
compiled by the ombudsman at our request shows a significant increase in the
number of investigations over the past 2 years. On the basis of information
extracted from his case files, the ombudsman told us that he initiated 34
investigations since he took office in October 1992, more than half of which
were initiated since 1999. 10 OSWER managers point out that the ombudsman
was allocated a total of $900, 000 for fiscal year 2001, a significant
increase over the estimated $500,000 spent on ombudsman- related activities
during the previous year. 11 However, when the ombudsman was asked to
provide an estimate of his fiscal year 2001 resource needs, he requested a
budget of $2 million and seven full- time equivalent staff.

Without more information, it is difficult to determine whether the
ombudsman?s estimate was realistic or what the appropriate level of
resources should be. The ombudsman does not maintain sufficient statistical
records on his investigations and other activities to serve as a basis for a
reasonable estimate of resource needs. He also does not have written
procedures for selecting, prioritizing, and tracking inquiries and cases. He
told us that during his first few years as ombudsman, he had an assistant
who maintained case logs on inquiries received, and thus could produce
summary statistics on his workload. According to the ombudsman, once his
assistant retired, he no longer had sufficient staff resources to maintain
logs on inquiries received and their resolution, summary information on the
results of investigations, or records on the status of ongoing cases,
although he does maintain case files on his investigations.

10 See appendix I for a list of the ombudsman?s investigations from October
1992 through December 2000. 11 Of the $900,000, about 45 percent was
allocated to salaries and benefits, with the remainder to be spent on
administrative, travel, and technical- support expenses.

Page 10 GAO- 01- 813 EPA's National and Regional Ombudsmen

While independence is perhaps the most essential characteristic of an
effective ombudsman, other aspects are also important. When we compared
these aspects of EPA?s national ombudsman with relevant professional
standards, we found several differences.

One significant difference concerns the ombudsman?s impartiality, which is
called into question by the impairments to the ombudsman?s independence.
According to the ABA?s recommended standards, ?the

ombudsman?s structural independence is the foundation upon which the
ombudsman?s impartiality is built,? and independence from line management is
a key indicator of the ombudsman?s ability to be impartial. 12 However, in
the case of EPA?s national ombudsman, line management not only has direct
supervisory authority over the ombudsman but also controls his budget and
staff resources.

Other criteria for evaluating an ombudsman?s impartiality relate to the
concept of fairness. For example, according to the article published by the
U. S. Ombudsman Association about 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. 13 However, we found that EPA?s
national ombudsman does not have a consistent policy for preparing written
reports on his investigations, consulting with agency officials to obtain
their comments before his findings are made public, or including written
agency comments when reports are published. According to the national
ombudsman, inconsistencies in the degree of consultation with the agency are
linked to differences in the extent of OSWER management?s interest in
reviewing his reports. However, he acknowledged that these differences do
not preclude him from soliciting comments.

Another difference concerns confidentiality since legal constraints prevent
EPA?s national ombudsman from adhering to relevant professional standards in
this area. Under ABA?s recommended standards, an ombudsman must not disclose
and must not be required to disclose any information provided in confidence,
except to address an imminent risk of

12 American Bar Association, Section of Administrative Law and Regulatory
Practice, Section of Dispute Resolution, Report to the House of Delegates,
July 2000, p. 10. 13 Gottehrer and Hostina, ?Essential Characteristics of a
Classical Ombudsman.? Other Aspects of EPA?s

Ombudsman Differ From Relevant Standards

Page 11 GAO- 01- 813 EPA's National and Regional Ombudsmen

serious harm. The standards say that records pertaining to a complaint,
inquiry, or investigation must be confidential and not subject to disclosure
outside the ombudsman?s office. However, as an EPA employee, the national
ombudsman is subject to the disclosure requirements of the Freedom of
Information Act. The act generally provides that any person has a right of
access to federal agency records, except to the extent that such records are
protected from disclosure by statutory exemption. 14 Exempted information
includes agency internal deliberative process or attorney- client
information. 15 According to the ombudsman, the confidentiality issue has
not posed a significant problem thus far because he has not been asked to
disclose information provided by complainants. However, he believes that his
inability to offer confidentiality could be troublesome in the future.

Accountability is another area in which EPA?s national ombudsman differs
from relevant standards of practice for ombudsmen. The ABA recommends that
an ombudsman issue and publish periodic reports summarizing his findings and
activities to ensure the office?s accountability to the public. Similarly,
recommendations by the Administrative Conference of the United States
regarding the establishment of ombudsmen in federal agencies state that
ombudsmen should be required to submit periodic reports summarizing their
activities, recommendations, and the relevant agency?s responses. EPA?s
national ombudsman does not prepare such reports; he told us that EPA has
never required an annual report at the national level. The regional
ombudsmen are expected to submit annual reports on their activities, but the
reports are for internal use only. He also indicated that he does not have
the resources to maintain the records necessary to produce such a report.

Other federal agencies have provided their ombudsmen with more independence
than that available to EPA?s national ombudsman- both structurally and
functionally. At least four other federal agencies have an ombudsman
function somewhat similar to EPA?s: the Agency for Toxic Substances and
Disease Registry, the Federal Deposit Insurance Corporation, the Food and
Drug Administration, and the Internal Revenue Service. Of these agencies,
three have an independent office of the ombudsman that reports to the
highest level in the agency. For example,

14 See 5 U. S. C. 552( a), (b). 15 See 5 U. S. C. 552( b)( 5). Other Federal
Agencies

Have Taken Steps to Enhance the Independence of Their Ombudsmen

Page 12 GAO- 01- 813 EPA's National and Regional Ombudsmen

the ombudsmen from the Food and Drug Administration and the Internal Revenue
Service each report to the Office of the Commissioner in their respective
agencies. The exception is the ombudsman at the Agency for Toxic Substances
and Disease Registry. Although the agency does not have a separate office of
the ombudsman- a single individual fulfills its ombudsman function- the
ombudsman reports to the Assistant Administrator of the agency. In contrast,
EPA?s national ombudsman is located in a program office (OSWER) and reports
to the Office?s Deputy Assistant Administrator.

OSWER officials pointed out that the ombudsmen in other federal agencies
generally have an agency- wide jurisdiction, while EPA?s ombudsman is
responsible only for inquiries and investigations relating to the hazardous
waste programs managed by OSWER. They believed that it was logical to place
the national ombudsman within OSWER because that office would directly
benefit from the ombudsman?s activities. However, as noted earlier, the
ombudsman believes that locating his function outside of OSWER would offer
him greater independence. In addition, structural issues take on greater
prominence when the unit to which the ombudsman must report also controls
his budget and staff resources.

The ombudsmen in three of the agencies we examined- the Federal Deposit
Insurance Corporation, the Food and Drug Administration, and the Internal
Revenue Service- also have more functional independence than the EPA
ombudsman has. 16 For example, they have the authority to hire, supervise,
discipline, and terminate staff, consistent with the authority granted to
other offices within their agencies. These ombudsmen are able to hire
permanent full- time staff and do not have to rely on parttime or detailed
employees. In addition, the ombudsmen in these three agencies have control
over their budget resources. For example, the ombudsmen have authority to
draft and submit budgets to cover their anticipated workloads in the
upcoming fiscal year. While they are subject to the same budget constraints
as other offices within the agencies, they have the ability to prioritize
their workloads and make decisions about where their funds will be spent.

16 The exception is the Agency for Toxic Substances and Disease Registry,
where the ombudsman does not have any staff and does not have a separate
budget.

Page 13 GAO- 01- 813 EPA's National and Regional Ombudsmen

In January 2001, OSWER proposed new guidance to explain the roles and
responsibilities of the national and regional ombudsmen. 17 The primary
objective in issuing the guidance was to improve the effectiveness of the
ombudsman program by providing a clear and consistent set of operating
policies and expectations. 18 On the subject of the ombudsman?s
independence, the guidance is relatively brief. It states: ?The Ombudsman
will be free from actual or apparent interference in the legitimate
performance of his/ her duties. The Ombudsman has the autonomy to look into
any issue or matter consistent with this guidance.? However, the guidance
leaves the current organizational structure in place and, in some respects,
imposes additional constraints on the ombudsman?s independence.

Maintaining the existing structure raises questions about whether the
ombudsman will be subject to interference in the performance of his duties.
Many of the comments EPA received on its proposed guidance expressed
concerns about structural constraints on the ombudsman?s independence. The
general theme of the comments was that the ombudsman must be located outside
of the organization that is being investigated to be truly independent. Some
commenters suggested that the ombudsman report to the EPA Administrator, and
others believed that the function should be entirely independent of the
agency.

In addition to maintaining the status quo with regard to the organizational
structure, EPA?s proposed guidance places some new restrictions on the
ombudsman?s independence. Regarding case selection, for example, the
guidance states that the regional ombudsmen will generally handle matters
that fall within the territorial boundaries of their respective regions.
(See appendix II for a map showing the EPA regions and the distribution of
national ombudsman investigations.) For cases that concern a

?nationally significant? issue, the guidance states that regional ombudsmen
will consult with the national ombudsman regarding who is best suited to
take the lead, considering time, resources, location, and familiarity with
the subject and parties involved. If the national and regional ombudsmen
cannot reach agreement on a particular case, the guidance provides that

17 In May 2001, EPA suspended implementation of the proposed guidelines to
consider all formal and informal comments and await the results of our
review. 18 Although EPA consulted relevant professional standards in
developing the guidance, the draft document states that the guidance was
tailored to meet the needs of OSWER and, thus, may not be consistent with
existing standards. Proposed Organizational

and Operational Changes Do Not Fully Address Concerns About the Ombudsman?s
Independence

Page 14 GAO- 01- 813 EPA's National and Regional Ombudsmen

the Assistant Administrator or Deputy Assistant Administrator of OSWER will
resolve the dispute.

Giving the regional ombudsmen such a prominent role in case selection is
problematic considering their part- time involvement in the ombudsman
function and, more significantly, the nature of their other
responsibilities. EPA?s proposed guidance acknowledges that the national
ombudsman is best suited to handle matters that pose potential conflicts of
interest for the regional ombudsmen, but it does not recognize the inherent
problems created by their dual roles. (Concerns about impairments to the
independence of the regional ombudsmen are discussed in more detail later in
this report.)

Regarding another aspect of case selection, EPA?s proposed guidance includes
a general prohibition on investigating matters in litigation, on the ground
that such investigations could be construed as creating an alternative forum
for arguing the issues. The guidance cites the risks of confusion,
inefficiency, and potentially conflicting statements about the agency?s
position as reasons that the ombudsman should avoid investigating matters in
litigation. According to OSWER officials, their primary concern with the
ombudsman?s involvement is the potential for undermining the legal process
and building a separate record as a result of his investigation. They
acknowledged that most Superfund cases are in litigation at some point, but
they said that the matter being litigated usually concerns who should pay
for a cleanup, not how the cleanup should be done. The officials believe
that the latter issue is more likely to be the subject of an ombudsman
investigation.

EPA?s national ombudsman told us that he should have the authority to select
cases for investigation regardless of whether the matter is in litigation.
Most of the comments on EPA?s proposed guidance also stated that the
ombudsman should have the discretion to choose which cases to investigate
without interference from agency management. For example, the Coalition of
Federal Ombudsmen commented that although coordination between top
management and the ombudsman is a necessity when matters are in litigation,
requiring the concurrence of agency management is ?not a workable solution.?
Comments from two entities within the ABA agree that the involvement of
agency management would

Page 15 GAO- 01- 813 EPA's National and Regional Ombudsmen

be inconsistent with the ombudsman?s independence. 19 However, they also
said that the national ombudsman should be able to accept jurisdiction over
an issue that is pending in a legal forum only if all parties to the action
explicitly consent.

In addition to drafting new guidance for the ombudsman program, EPA
officials, including those in OSWER, have been considering a variety of
organizational options for the ombudsman function. In March 2001, OSWER
developed, as one possible option, a proposal for creating a separate office
of the ombudsman within OSWER. They indicated that the proposed
organizational change stems from a recognition that the role and workload of
the national ombudsman have evolved and that some current management
practices are cumbersome and inefficient. Under the reorganization, the
incumbent ombudsman would serve as director of the office and have more
control over his budget and staff resources. Specifically, the ombudsman
would have the authority to hire, supervise, and remove staff, consistent
with other offices within OSWER. In addition, the director would be
responsible for drafting and submitting a budget to cover the ombudsman?s
activities. Although this proposal would enhance the functional independence
of the ombudsman, the office of the ombudsman would still be located within
OSWER. Final decisions about the appropriate staffing levels and resource
allocations would still be under the purview of OSWER management. EPA has
decided to table its decision on the appropriate placement of the ombudsman
function within the agency until agency management has time to consider the
results of our report and comments from other stakeholders, including the
ombudsman.

19 The ABA?s Section of Administrative Law and Regulatory Practice and
Section of Dispute Resolution submitted comments on EPA?s proposed guidance.
These sections were responsible for drafting ABA?s July 2000 recommended
Standards for the Establishment and Operation of Ombudsman?s Offices.

Page 16 GAO- 01- 813 EPA's National and Regional Ombudsmen

Within EPA?s 10 regional offices, the ombudsman function is perceived as a
collateral duty and is assigned to individuals whose primary role often
poses a potential conflict of interest. Most of the regional ombudsmen
devote less than 25 percent of their time to the ombudsman role. They spend
the majority of their time performing duties that could be the subject of an
ombudsman investigation. The regional ombudsmen primarily respond to
informational requests, including some referred by the national ombudsman.
While the national and regional ombudsmen disagree on the extent to which
they coordinate their activities, the regional ombudsmen clearly have little
involvement in substantive matters, such as helping to select which cases
will be investigated by the national ombudsman or to conduct such
investigations.

ABA?s recommended standards for ombudsmen call for independence in
structure, function, and appearance and, among other criteria, stipulate no
assignment of duties other than that of the ombudsman function. Similarly,
guidance developed by The Ombudsman Association states that an ombudsman
should serve ?no additional role within an organization? because holding
another position would compromise the ombudsman?s neutrality. However, by
virtue of their dual roles, EPA?s regional ombudsmen appear to have less
independence than the national ombudsman has. Moreover, they are more likely
to encounter a potential conflict of interest, since most decisions on
hazardous waste sites and facilities are made at the regional level.

The ombudsman function is generally seen as a collateral duty at the
regional level, and the manner in which the function is implemented is left
to the discretion of the agency?s regional administrators. As a result, the
nature of the primary role served by the regional ombudsmen varies from
region to region, although 7 of the 10 regional ombudsmen are located within
the regional unit that manages the Superfund program. (See table 1.) EPA?s
Regional

Ombudsmen Serve on a Part- Time Basis and Play a Lesser Role Than the
National Ombudsman

Other Duties Assigned to the Regional Ombudsmen Hamper Their Independence

Page 17 GAO- 01- 813 EPA's National and Regional Ombudsmen

Table 1: Line Management Positions for Regional Superfund Ombudsmen Region
Line management position Program or office

I Environmental Scientist, Office of Site Remediation & Restoration
Superfund II Accelerated Cleanup/ Stabilization Manager,

Emergency and Remedial Response Division Superfund III Acting Branch Chief,
Enforcement and Federal

Facilities Branch Superfund IV Project Manager, Brownfields, Customer
Service

Branch Superfund V Superfund Enforcement Coordinator, Superfund

Division Superfund VI Superfund Division Coordinator & Alternative

Dispute Specialist, Superfund Division Superfund VII Policy Coordinator,
Superfund Division Superfund VIII Manager, Public Affairs and Involvement
Unit, Office

of Communication and Public Involvement Regional Administrator?s Office

IX Director, Strategic Planning and Emerging Issues, Office of the
Administrator Office of Strategic

Planning and Emerging Issues X Associate Director, Office of Management
Programs Office of Management

Programs Source: GAO?s analysis of data provided by the regional ombudsmen.

The amount of time spent on ombudsman duties also varies widely from region
to region. During fiscal year 2000, for example, estimates of the percentage
of time devoted to ombudsman- related work ranged from about 2 percent to 90
percent. Figure 1 summarizes the estimated time spent on regional ombudsman
duties during calendar years 1999 and 2000. 20

20 The ombudsmen from EPA regions II and V provided their responses on a
fiscal year basis.

Page 18 GAO- 01- 813 EPA's National and Regional Ombudsmen

Figure 1: Estimated Percentage of Time Spent on Regional Ombudsman
Activities in Calendar Years 1999 and 2000

a The ombudsman in EPA?s Seattle regional office (region X) was only
recently appointed and did not have enough experience to provide an
estimate. The individual who held the position previously no longer works at
EPA.

Source: GAO?s analysis of data provided by the regional ombudsmen.

When asked how they are able to ensure their independence in light of their
dual roles, 7 of the 10 regional ombudsmen either did not perceive their
multiple responsibilities as hampering their independence or cited direct
access to regional management as a way of dealing with potential conflicts.
However, we also asked about the extent to which their supervisors have been
involved or have the potential to be involved in decisions or cases subject
to investigation by the ombudsmen. Five of the ombudsmen acknowledged that
their immediate supervisors could have significant involvement in matters
subject to an ombudsman investigation. While the remaining five ombudsmen
did not agree, they also reported that their immediate supervisors held
positions in which the potential for involvement appears high.

Page 19 GAO- 01- 813 EPA's National and Regional Ombudsmen

OSWER officials recognize that the regional ombudsmen are more constrained
than the national ombudsman as a result of their dual responsibilities.
However, the officials believe that these individuals provide a valuable
service in responding to informational inquiries, a function in which
independence is less likely to be an issue. If the regional ombudsmen are to
be truly independent, EPA?s national ombudsman believes that they should
report to him and should not have other responsibilities that pose a
potential conflict. He attributed their relatively light workload and part-
time role to public perceptions that the regional ombudsmen are not
independent. OSWER officials agreed that such perceptions might be at least
partly responsible for the situation.

When we looked at how other federal agencies dealt with regional ombudsmen,
we found that two of the four agencies we examined- the Federal Deposit
Insurance Corporation and the Internal Revenue Service- have ombudsmen in
regional offices. The Federal Deposit Insurance Corporation currently has
ombudsmen in each of its seven service centers located across the country.
Within the Internal Revenue Service, the National Taxpayer Advocate is
required to appoint local taxpayer advocates, including at least one in each
state. In both agencies, the staff that perform the regional ombudsman
function devote 100 percent of their time to that responsibility. The
regional staffs are considered part of the national ombudsman?s office and
report directly to the national ombudsman. In each case, the national
ombudsman has responsibility for the hiring, supervision, and removal of all
staff within his office, including regional staff, and the regional
operations are included in his office?s budget request.

Since the ombudsman function was first created within OSWER, EPA has issued
and proposed guidance that calls for coordination between the national and
regional ombudsmen. EPA?s Hazardous Waste Ombudsman Handbook, which was
published in 1987 and remains in effect, states that close cooperation
between the national and regional ombudsmen is important. In February 1998,
after some misunderstandings developed between the national and regional
ombudsmen regarding their respective roles and responsibilities, OSWER?s
Acting Assistant Administrator issued a memo that attempted to clarify the
situation. Most significantly, the memo stated that the regional ombudsmen
would take the lead on all Superfund- related matters and would refer to the
national ombudsman only those cases that the regional ombudsmen believe are
?nationally

significant?- and only with the concurrence of the Assistant Administrator
of OSWER. Although EPA officials generally agree that this policy was
National and Regional

Ombudsmen Disagree on the Nature and Extent of Their Coordination

Page 20 GAO- 01- 813 EPA's National and Regional Ombudsmen

never implemented, the regional ombudsmen believed, until at least 1999,
that the policy was in effect and that the coordination called for in the
policy was supposed to be occurring. 21 The new guidance recently proposed
by OSWER is, in part, another effort to delineate the roles and
responsibilities of the national and regional ombudsmen, particularly with
regard to the selection and referral of cases for investigation.

Notwithstanding the guidance, the extent to which the national and regional
ombudsmen actually coordinate is unclear and is the subject of disagreement
among the parties. According to the national ombudsman, he notifies his
regional counterparts of all inquiries he receives and refers many of them
to the regions for follow- up. However, he said that he rarely receives any
information on how the inquiries were resolved. According to an OSWER
official who helps coordinate monthly conference calls among the regional
ombudsmen, the reason for the lack of response is that almost all of the
referrals involve minor problems that are not worth any additional reporting
or time spent on paperwork. Other OSWER officials suggested that these
referrals are often passed on to other EPA or state employees and are not
handled directly by the ombudsmen.

The national ombudsman generally does not consult with the regional
ombudsmen on substantive matters, such as deciding which complaints are
significant enough to warrant investigations, or request their assistance in
conducting investigations. He told us that he notifies the applicable
regional ombudsman and regional management when he initiates an
investigation and asks for their views on the issues raised in the
complaints. In addition, he said that he occasionally requests
administrative and/ or logistical assistance when visiting one of the
regions in the course of conducting an investigation. For example, the
regional ombudsmen may obtain copies of documents for the national
ombudsman, arrange meetings with regional staff, and help set up public
hearings.

From the perspective of the regional ombudsmen, the extent of the
communication from and coordination by the national ombudsman is not
sufficient. According to the minutes of their monthly conference calls and
the information we collected, the regional ombudsmen have had limited
contact with the national ombudsman and generally are not consulted

21 According to the national ombudsman, the memo was verbally rescinded
after he objected to it on the basis that it compromised his independence.
However, the minutes of periodic conference calls among the regional
ombudsmen indicate that they believed the memo remained in effect.

Page 21 GAO- 01- 813 EPA's National and Regional Ombudsmen

when investigations are initiated nor are they updated as the investigations
proceed. According to an OSWER official who helps coordinate the conference
calls, the regional ombudsmen complain that the national ombudsman almost
never calls them for any reason and sometimes does not notify them when he
is visiting the region.

Another area of disagreement is the extent to which the national ombudsman
has authority to oversee the activities of the regional ombudsmen. The
national ombudsman told us that he does not have supervisory authority and
thus, is not responsible for overseeing the regional ombudsman program as
envisioned in EPA?s 1987 handbook. 22 He said that under current operating
procedures, the regional ombudsmen are under no obligation to refer cases to
him and have made no referrals in the last 4 or 5 years. However, OSWER
officials suggested that he could provide more direct oversight. They
pointed out that many senior- level employees at headquarters have
functional responsibility for various activities performed by regional
employees even if they do not supervise the employees.

To some extent, an ombudsman?s effectiveness is within the ombudsman?s
control. For example, the ombudsman strengthens his credibility when all
parties perceive his investigations as fair and objective. Yet effectiveness
is also a function of an ombudsman?s actual and apparent independence, and
this is an area where the ombudsman?s home agency can make a big difference.
In the case of the national hazardous waste ombudsman, EPA could help ensure
that the ombudsman is perceived as independent by locating the function
outside the unit he is responsible for investigating and by giving him
control over his budget and staff resources. Although the current
organizational structure may have made sense originally, the function has
evolved, and the organization should reflect the shift in the ombudsman?s
workload from responding to informational inquiries to investigating
complaints.

Under the current framework, the national ombudsman must compete with other
offices within OSWER for scarce budget resources. With senior OSWER
officials making the budget allocations, this arrangement may

22 EPA?s Hazardous Waste Ombudsman Handbook indicates that the national
ombudsman, working with the Regional Administrators, is responsible for
evaluating regional ombudsman programs, recommending changes, and updating
the guidance. Conclusions

Page 22 GAO- 01- 813 EPA's National and Regional Ombudsmen

create a perception that EPA is not allocating an adequate share of OSWER?s
resources to the ombudsman. Similarly, OSWER management?s authority to hire
and fire the ombudsman?s staff clearly poses an institutional barrier to the
ombudsman?s independence. A related issue involves the nature of the staff
allocated to the ombudsman. Reliance on temporary assistance from interns
and employees on short- term details does not provide the necessary
experience or continuity to support the ombudsman. OSWER has taken a step in
the right direction by allocating 3 full- time- equivalent staff- years to
the ombudsman function, but to be truly independent, the ombudsman should
have direct control over the staff.

For his part, if the national ombudsman is to be given responsibility for
managing his resources, he needs to maintain adequate records on his
operations to serve as the basis for a reasonable budget request. The
ombudsman must also establish the criteria and operating procedures
necessary for managing his workload within his budget constraints and select
and prioritize his workload so that he can work within those constraints.
Having a consistent policy for preparing written reports on investigations
and soliciting comments from affected parties would help ensure that the
ombudsman is perceived as fair and impartial. In addition, the ombudsman
should be accountable for his activities through a publicly available annual
report.

Regional ombudsmen may provide a valuable service to the public in
responding to informational inquiries, but their current lack of
independence should preclude their involvement in more significant
investigations. Despite their dual roles, in recent years, OSWER has
attempted to give the regional ombudsmen a greater say in selecting cases
for investigation and deciding which ones should be referred to the national
ombudsman. Instead, EPA should reexamine the position of regional ombudsman
and, if a regional presence is warranted, ensure that whoever provides such
a presence is truly independent.

To improve the effectiveness of EPA?s ombudsmen and secure the public trust,
we recommend that the Administrator, EPA, take steps to strengthen the
independence of the national hazardous waste ombudsman. Specifically, EPA
should (1) modify its organizational structure so that the ombudsman is
located outside of OSWER and (2) provide the ombudsman with a separate
budget and, subject to applicable Civil Service requirements, the authority
to hire, fire, and supervise his own staff. To ensure that the ombudsman has
adequate resources to fulfill his Recommendations for

Executive Action

Page 23 GAO- 01- 813 EPA's National and Regional Ombudsmen

responsibilities within the context of EPA?s overall mission, EPA should
require the ombudsman to (1) develop written criteria for selecting and
prioritizing cases for investigation and (2) maintain records on his
investigations and other activities sufficient to serve as the basis for a
reasonable estimate of resource needs. In the interests of fairness, EPA
should require the ombudsman to establish a consistent policy for preparing
written reports on his investigations, consulting with agency officials and
other affected parties to obtain their comments before his findings are made
public, and including written agency comments when reports are published. To
ensure that the ombudsman is accountable, EPA should require the ombudsman
to file an annual report summarizing his activities and make it available to
the public. Finally, we recommend that EPA officials, including the national
ombudsman, (1) assess the demand for ombudsman services nationwide to
determine where these resources are needed and, (2) in those locations where
regional ombudsmen are warranted, ensure that their operations are
consistent with the relevant professional standards for independence.

EPA provided comments on a draft of this report. Specifically, we received a
letter from the Acting Assistant Administrator of OSWER, an enclosure with
additional technical comments from OSWER, and an enclosure from the national
ombudsman containing general and technical comments. EPA?s comments and our
responses are contained in appendix III.

Both OSWER and the national ombudsman generally agreed with our conclusions
and recommendations. According to OSWER, the agency supports ?a strong,
independent, and appropriately funded Ombudsman function and [is] committed
to full and serious consideration of the [GAO] audit recommendations.? OSWER
plans to assess our recommendations over the next few months, along with
input from stakeholders, as the agency determines the most appropriate
organizational placement of the ombudsman function. OSWER also noted that
our recommendations relating to increased accountability by the national
ombudsman were helpful.

Similarly, the national ombudsman indicated that he was taking steps to
implement several of our recommendations, including developing criteria for
selecting and prioritizing cases for investigation, maintaining records to
serve as a basis for a reasonable estimate of resource needs, developing a
consistent policy for preparing written reports on his investigations, and
publishing an annual report on his activities. He also indicated his intent
to assess the operations of the regional ombudsmen. Agency Comments

Page 24 GAO- 01- 813 EPA's National and Regional Ombudsmen

We incorporated technical comments from OSWER and the national ombudsman as
appropriate.

To determine how the national ombudsman?s operations compare with relevant
professional standards, we identified four organizations- the Administrative
Conference of the United States, the Ombudsman Committee of the ABA, The
Ombudsman Association and the U. S. Ombudsman Association- that have
published or drafted such standards. Based on our review of the standards
and on discussions with EPA?s national ombudsman, OSWER officials, and
representatives of professional associations, we evaluated characteristics
of EPA?s national ombudsman using the standards as criteria. To learn more
about the development and application of ombudsman standards, we contacted
representatives from the Coalition of Federal Ombudsmen, the Interagency
Alternative Dispute Resolution Working Group, The Ombudsman Association, the
University and College Ombuds Association, and the U. S. Ombudsman
Association, as well as the current and former chairmen of the ABA?s
Ombudsman Committee. Besides conducting interviews with EPA?s national
ombudsman and OSWER officials, we reviewed various documents that they
provided regarding the implementation of the ombudsman function and proposed
changes, including the ombudsman handbook, the proposed new guidance, the
proposed change in OSWER?s organizational structure, and budget documents.
In addition, we reviewed information that the ombudsman compiled at our
request on the investigations that he initiated between October 1992 and
December 2000.

Recognizing that there are no federal requirements or standards specific to
the operation of ombudsman offices at federal agencies, we also looked at
how other federal agencies are implementing the ombudsman function. We
compiled a list of federal agencies with ombudsmen that handle external
inquiries or complaints. None of these ombudsmen was totally comparable to
his counterpart at EPA in terms of longevity, jurisdiction or the nature of
the investigations conducted. 23 However, we selected four ombudsmen with
enough similarity in longevity and workload to provide a reasonable basis
for comparison. These ombudsmen were located in the Agency for Toxic
Substances and Disease Registry, the Federal Deposit

23 For example, in some agencies, the ombudsman function was too new to be
useful for our comparison. Scope and

Methodology

Page 25 GAO- 01- 813 EPA's National and Regional Ombudsmen

Insurance Corporation, the Food and Drug Administration, and the Internal
Revenue Service. We met with the ombudsman at these agencies to obtain
information on their operations and on the extent to which they are
consistent with relevant professional standards.

To obtain information on the relative roles and responsibilities of EPA?s
national and regional ombudsmen, we developed a data collection instrument
to question the regional ombudsmen on their functions in each of EPA?s 10
regions for calendar years 1999 and 2000. Among other things, we obtained
information on their ombudsman- related activities, other roles and
responsibilities, and supervisors; the amount of time spent on ombudsman
duties; and the extent of interaction and coordination with the national
ombudsman. We discussed the operations of the regional ombudsmen with OSWER
officials and with the national ombudsman and compared those operations with
those of the national ombudsman and the relevant professional standards for
independence. We also reviewed minutes of periodic conference calls held by
the regional ombudsmen during 1999 and 2000, as well as various documents
that they provided on their operations and activities.

We conducted our review from November 2000 through July 2001 in accordance
with generally accepted government auditing standards.

As we agreed with your office, unless you publicly announce the contents of
this report earlier, we plan no further distribution of it until 30 days
from the date of this letter. We will then send copies to the Administrator,
EPA, and make copies available to others who request them. If you or your
staff have questions about this report, please call me on (202) 512- 3841.
Key contributors to this assignment were Ellen Crocker, Richard Johnson, Les
Mahagan, Cynthia Norris, and Robert Sayers.

John B. Stephenson, Director Natural Resources and Environment

Appendix I: Investigations Initiated by EPA?s National Ombudsman Between
October 1992 and December 2000

Page 26 GAO- 01- 813 EPA's National and Regional Ombudsmen

Number Case name State location Date inquiry

received Status as of 06/ 30/ 01 Date

resolved Report issued a

1 Babcock- Wilcox Site Pennsylvania 10/ 30/ 92 Resolved 10/ 01/ 93 No 2 Old
Southington Landfill Site Connecticut 03/ 15/ 93 Resolved 05/ 01/ 94 No 3
Brio Refining Site Texas 05/ 19/ 93 Resolved 04/ 01/ 94 Yes 4 Vertac
Incinerator Arkansas 06/ 09/ 93 Resolved 08/ 18/ 94 Yes 5 Yaworski Landfill
Site Connecticut 09/ 24/ 93 Resolved 04/ 01/ 94 No 6 Triumph Mine Tailings
Piles Idaho 12/ 93 Resolved 02/ 15/ 95 No 7 Commencement Bay Site Washington
06/ 01/ 93 Resolved 09/ 01/ 94 No 8 DTC Environmental Services, Inc. Ohio
03/ 95 Resolved 02/ 01/ 96 No 9 North Casper Site Wyoming 03/ 13/ 95
Resolved 08/ 01/ 95 No

10 Agrico Chemical Site/ Escambia/ Environmental Justice Site Florida 08/ 95
Resolved 02/ 17/ 97 No

11 Drake Chemical Company Pennsylvania 03/ 14/ 96 Resolved 04/ 16/ 98 Yes 12
Times- Beach Incinerator Missouri 04/ 30/ 96 Resolved 12/ 20/ 96 Yes 13
McFarland Contamination Site California 03/ 28/ 97 Ongoing

14 Public Service of New Hampshire Landfill Site New Hampshire 08/ 17/ 98
Resolved 06/ 15/ 99 No

15 Rayonier Mill Washington 10/ 98 Ongoing 16 Rocky Mountain Arsenal Site
Colorado 1998 Ongoing

17 Shattuck Chemical Site Colorado 02/ 02/ 99 Ongoing Yes (Interim)

18 Alberton Train Derailment /Mix Chemical Spill Montana 03/ 08/ 99 Ongoing
19 Passyunk Homes (Philadelphia Public Housing)

& Defense Supply Center Philadelphia Site, Pennsylvania Pennsylvania 03/ 10/
99 Resolved 06/ 01/ 00 No 20 Augusta Sludge Contamination Site Georgia 04/
07/ 99 Ongoing 21 Bunker Hill ?In the Box? Site Idaho 09/ 09/ 99 Ongoing 22
Stauffer Chemical Co. Site Florida 10/ 12/ 99 Ongoing 23 Bloomington PCB
Indiana 01/ 20/ 00 Ongoing 24 Quincy Hazardous Waste Site Washington 01/ 25/
00 Ongoing

25 Waste Technologies Industries Hazardous Waste Incinerator Site Ohio 01/
31/ 00 Ongoing Yes

(interim) 26 Marjol Battery Site Pennsylvania 04/ 13/ 00 Ongoing 27 Coeur
d?Alene Basin Site Idaho 05/ 16/ 00 Ongoing 28 Precision National Plating
Site Pennsylvania 07/ 10/ 00 Ongoing

29 Industrial Excess Landfill Site Ohio 01/ 25/ 99 Ongoing Yes (interim)

30 Escambia Treating Co. & Agrico Chemical Co. Florida 07/ 20/ 00 Reopened
31 Pennsylvania Sludge Contamination Site Pennsylvania 08/ 08/ 00 Ongoing 32
Boyertown Contamination Site Pennsylvania 08/ 29/ 00 Ongoing 33 Hercules 009
Site Georgia 09/ 13/ 00 Ongoing 34 Solitron Devices/ Honeywell Site Florida
10/ 02/ 00 Ongoing

Appendix I: Investigations Initiated by EPA?s National Ombudsman Between
October 1992 and December 2000

Appendix I: Investigations Initiated by EPA?s National Ombudsman Between
October 1992 and December 2000

Page 27 GAO- 01- 813 EPA's National and Regional Ombudsmen

a Many of the investigations resolved by the ombudsman did not result in the
issuance of a report. He told us that consensus among stakeholders may be
reached prior to the issuance of a preliminary or final report.

Source: GAO?s analysis of data provided by EPA?s national ombudsman.

Appendix II: Distribution of National Ombudsman Investigations by EPA Region

Page 28 GAO- 01- 813 EPA's National and Regional Ombudsmen

Source: GAO?s analysis of data provided by EPA?s national ombudsman.

Appendix II: Distribution of National Ombudsman Investigations by EPA Region

Appendix III: Comments From the Environmental Protection Agency, Including
Comments From the National Ombudsman

Page 29 GAO- 01- 813 EPA's National and Regional Ombudsmen

Appendix III: Comments From the Environmental Protection Agency, Including
Comments From the National Ombudsman

Note: GAO comments supplementing those in the report text appear at the end
of this appendix.

Appendix III: Comments From the Environmental Protection Agency, Including
Comments From the National Ombudsman

Page 30 GAO- 01- 813 EPA's National and Regional Ombudsmen

Appendix III: Comments From the Environmental Protection Agency, Including
Comments From the National Ombudsman

Page 31 GAO- 01- 813 EPA's National and Regional Ombudsmen

Appendix III: Comments From the Environmental Protection Agency, Including
Comments From the National Ombudsman

Page 32 GAO- 01- 813 EPA's National and Regional Ombudsmen

Now on line 2.

Appendix III: Comments From the Environmental Protection Agency, Including
Comments From the National Ombudsman

Page 33 GAO- 01- 813 EPA's National and Regional Ombudsmen

Now on line 8. See comment 2. See comment 1.

Appendix III: Comments From the Environmental Protection Agency, Including
Comments From the National Ombudsman

Page 34 GAO- 01- 813 EPA's National and Regional Ombudsmen

See comment 3.

Appendix III: Comments From the Environmental Protection Agency, Including
Comments From the National Ombudsman

Page 35 GAO- 01- 813 EPA's National and Regional Ombudsmen

The following are GAO?s comments on the letter signed by EPA?s national
ombudsman dated July 11, 2001.

1. According to a February 1991 Decision Memorandum from EPA?s Office of
Administration and Resources Management, the Office of the Ombudsman was
abolished as part of a reorganization of the Immediate Office of the Office
of the Assistant Administrator of OSWER.

2. Our report does not suggest that the ombudsman does not obtain agency
comments on his findings before they are made public. Rather, we say that
the ombudsman does not have a consistent policy for soliciting agency
comments and that his decision to seek them is contingent on management?s
interest in seeing the report prior to publication and providing comments.
We are recommending that the ombudsman adopt a consistent policy to solicit
agency comments whenever reports are published; agency officials can choose
to provide comments at their discretion.

3. Our recommendation was that EPA officials, including the national
ombudsman, assess the demand for ombudsman services nationwide to determine
where these resources are needed. GAO Comments

(360002)

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