Section A
Section B
Section C

There is little question that the current EPA structure flunks the laugh test for a credible ombudsman, even if it did not have a history of obstructing ombudsman investigations. Last fall the General Accounting Office (GAO) concluded it would undermine prior recommendations for a strengthened office that EPA had insisted it was carrying out by relocating it, to the point where basic ombudsman duties have been legally barred in the new home for ombudsman work. By contrast, S. 606 as approved by the Senate is outstanding good government legislation. It meets the standards of the model ombudsman program recommended by the Organization of American States to implement its Inter-American Convention Against Corruption.

One flaw must be corrected, however, to secure a safe channel for the free flow of information to the ombudsman, which is the lifeblood for any government agency to operate effectively. Due to a technical drafting mistake, the whistleblower protection clause of the bill references a 1992 law enacted to help nuclear power workers. While well intentioned at the time, Congress has learned many lessons in the intervening decade. In particular, the administrative process that adjudicates nuclear whistleblower cases has been plagued by backlogs that commonly exceeds three years, and in some cases have extended over a decade - as long as the statute has been in existence. Last summer Congress corrected that problem in the Sarbanes-Oxley law's whistleblower provision. Like Equal Employment Opportunity (EEO) cases, those who do not receive a decision in 180 days can file an action in district court, where they can seek injunctive relief for cases that threaten to drag out. This frees whistleblowers from being prisoners of an administrative law process commonly known as the "black hole."

The bottom line in correcting this technical mistake is that it would turn exercising rights from a time-consuming exercise in frustration, to a genuine chance for justice. In order to better fight corporate crime, Congress passed the Sarbanes-Oxley whistleblower law with a near-unanimous mandate. Defending America's communities against potentially fatal toxic threats deserves just as effective protection.

Finally, today's forum is the chance to test a hybrid model for government accountability - citizen ombudsmen teaming up with those in Congress who care, when normal agency channels to break citizen-agency impasses are either compromised or unresponsive. Hopefully, this event will help to - 1) break an impasse on Superfund cleanups that has existed throughout the current EPA administrator's term; and 2) establish a new model creating a voice for disenfranchised citizens. As referenced earlier, GAP's attached Senate testimony from last summer provides context for these views.

July 15, 2002

The Honorable James F. Jeffords, Chairman
Senate Environment and Public Works Committee
410 Dirksen Senate Office Building
Washington, D.C. 20510-6175

Dear Senator Jeffords,

Thank you for inviting the Government Accountability Project's ("GAP") written testimony on S. 606, legislation to reauthorize the Office of the Ombudsman at the Environmental Protection Agency ("EPA"). This well-intentioned legislation is an opportunity to achieve significant, long-term structural good government reform by learning and applying lessons from the current debacle at EPA. After being reconstituted in EPA's Office of Inspector General, the Ombudsman no longer resembles that concept as it has been authoritatively defined to date. Because S. 606 was drafted before the agency abandoned all preexisting professional standards for an ombudsman, the bill will need further modification to meet this unique challenge.

GAP is a non-profit, non-partisan public interest law firm that assists whistleblowers, those employees who exercise freedom of speech to challenge abuses of power that betray the public trust. As GAP's legal director, I represent former National Ombudsman Robert Martin. Besides representing clients, GAP has accumulated 25 years expertise learning about employment retaliation by counseling over 3,000 employees seeking help against harassment. We have steadily monitored implementation of whistleblower laws, and shared both our academic and anecdotal research through articles in the popular media, as well as law reviews and publications. See, e.g., The Whistleblower's Survival Guide: Courage Without Martrydom, (Fund for Constitutional Government: 1997); "The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Dissent," 51 Administrative Law Review (1999). We led outside campaigns for passage of the Whistleblower Protection Act of 1989, the Military Whistleblower Protection Act, and numerous laws providing analogous protection for private sector employees in industries ranging from aviation to nuclear power.

Of particular interest, GAP teamed with American University Law School to draft a model whistleblower protection law for the Organization of American States (OAS) to implement its Inter-American Convention Against Corruption. The model law relies heavily on a carefully structured Office of Ombudsman to achieve the law's dual anti-retaliation and anti-corruption objectives. The proposal was based on professional standards from the U.S. Ombudsman Association and the American Bar Association. Relevant ombudsman provisions of the model law and corresponding explanatory notes are enclosed as Exhibit 1. In November 2000 the OAS adopted the model law. Last fall the U.S. Senate ratified the Inter-American Convention.

There are three purposes for this testimony: 1) Survey the public policy impact from EPA's interruption of 24 pending cases under active investigation by former Ombudsman Robert Martin when his office was abolished. 2) Assess the credibility of EPA's hostile takeover of Mr. Martin's program by merging it into the agency Office of Inspector general. 3) Recommend adjustments to S. 606 to maximize its legitimacy as a structure to improve on the EPA Ombudsman's prior, outstanding track record. Prior to its abolition, the Office had a phenomenal record of achieving mutually agreeable resolution to some 80% of disputes where local leaders and citizen organizations had reached an impasse on disputes about costs and public health hazards associated with Superfund and other toxic waste disposal.

Public Policy Impact From Abolishing Independent EPA Ombudsman

The alleged retaliatory reassignment and forced resignation of EPA National Ombudsman Robert Martin is far more than an employment dispute. It has serious consequences for citizens who believe the agency illegally has permitted public health hazards to threaten their communities from hazards in Superfund and toxic waste sites.

In April when he was forced to resign, Mr. Martin was pursuing and seeking resolution of more than two dozen cases at the request of citizen organizations and congressional offices. In each case, the communities had reached an impasse with normal EPA channels, and the Ombudsman was their last resort. During his decade in office, after investigations, public hearings sometimes hosted by Members of Congress and subsequent mediation efforts, Mr. Martin has broken the deadlocks to reach mutually acceptable resolution in some 80% of his cases.

Since reassignment of the Ombudsman function to EPA's Office of Inspector General ("OIG") and Mr. Martin's forced resignation, however, there has been no further progress on any of the cases. The OIG has made no efforts to work with Mr. Martin as a transition to renewed efforts. The citizens' accountability lifeline has been cut. Mr. Martin's goal in his Whistleblower Protection Act case is to return for a fixed time period to complete the work that he started on pending cases. The list below is a sampling of cases that have been functionally killed.

Alberton, Montana This Montana town suffered a disastrous train wreck five years ago that caused widespread chlorine contamination. It has caused health consequences such as blackouts, sexual dysfunction, memory loss and respiratory breakdowns. When he was removed, the Ombudsman was using videotape of the train's location to challenge EPA assertions that the toxic train could not be found. The search has been halted.

Tarpon Springs, Florida After the EPA had decided to pile up and leave asbestos, phosphates and radioactive wastes for storage in the community, at the request of Representative Bilrakis Ombudsman Martin analyzed the storage site. He found that it was an area prone to sinkholes, and on top of an aquifer that provides drinking water for two counties. As a result, EPA withdrew its remedy to leave the toxic wastes, and withdrew an associated consent decree. Ombudsman Martin was actively negotiating a new solution when his office was abolished.

Northern Idaho In this Coeur d'Alene basin, residents protested that the agency is not requiring Union Pacific to pay for its share of a $1/2-4 billion cleanup cost, although it is responsible for lead spills thousands of times above safe levels. The lead is contaminating rail and bike paths, to the extent motorists are still warned about leaving their cars to fix flat tires. At the request of the Idaho congressional delegation, Ombudsman Martin was pursuing the case when efforts were halted by his removal. It remains dormant.

Pensacola, Florida Area congressmen and municipal officials from this poor African American community asked for Ombudsman Martin's assistance when EPA decided not to remove toxic wastes contaminated with dioxin. This case was pending when the Ombudsman was removed.

Riviera Beach, Florida Four area congressmen and the mayor of this poor African American community near West Palm Beach asked the Ombudsman to open a case, because the town's drinking water is contaminated by industrial solvents such as trichlorine ethylene. Residents protested that EPA was requiring the municipality to foot the two million dollar annual cleanup cost for Honeywell's pollution. Last fall the Ombudsman successfully negotiated a solution to obtain funding from within EPA, but progress has now halted without any action to hold Honeywell responsible.

Shattuck, Colorado This site near Denver stored radioactive wastes that could be toxic for 500 years. The storage area was within blocks of residential and recreation areas, as well as within range of the water supply. In response to requests ranging from Senator Allard to community organizations, an Ombudsman investigation found that EPA's plan to store the waste would only isolate it from 5-15 years. As a result, the agency agreed to require its removal. But costs were not negotiated and a settlement signed among the parties until almost a year after Ms. Whitman's arrival at EPA. Citizens protested that the subsequent proposed settlement only required Citigroup to pay $7 million for a cleanup that requires from $35-100 million to conduct adequately, without considering associated costs to remove radioactive contamination from the groundwater and other areas where leaks already had exceeded containment or the site boundary. After the U.S. District Court in Washington, D.C. issued a Temporary Restraining Order (TRO) enjoining abolition of the Ombudsman office, Mr. Martin completed compilation of an extensive record of public testimony and prepared a report for the federal District Court judge in Colorado who must approve the proposed settlement. Although the settlement is still under review, there have been no further contributions to the record since Mr. Martin's removal.

Throop, Pennsylvania Senators Spector and Santorum, as well as Lackawana County and Throop Borough asked Ombudsman Martin to review EPA's cleanup plan for this site to dispose toxic wastes from a battery crushing operation. The controversy centered on whether it should be a Superfund site, and whether the toxic wastes such as acid, arsenic, dioxin, lead and PCB's should be removed or stored in the area. EPA's plan was to leave the poisons in the community, just blocks from residential and recreation areas and within range of the water supply, covered by plastic liner bags. But the Ombudsman investigation found lead in the soil at levels up to 250 parts per million, revealed there already were weeds growing through the plastic bags, and concluded that the area's topography meant it was too geographically unstable to safely store toxic waste. After the District Court TRO permitted the investigation to resume, the Ombudsman held public hearings and found records demonstrating that EPA had concealed readings that the site contamination readings exceeded Superfund levels. Since Mr. Martin's removal, the case has been dormant.

Uniontown, Ohio At the request of area Congressman Sawyer, Ombudsman Martin opened a case of the IEL site near Canton, Ohio, for which tire companies today are primarily responsible. Radiation was emanating from the site with inexplicable tritium readings in the ground water, and the original owner alerted EPA that he had accepted a nuclear device from the army while operating the site as a landfill. The Ombudsman was investigating challenges to EPA assertions that the nuclear device did not exist, because it had not been found. Nonetheless, the agency also refused to look for it through the contradictory excuse that it would be too dangerous to do any digging. . The Ombudsman case ended with Mr. Martin's removal.

Yucca Mountain, Nevada At the end of last year the Nevada congressional delegation, the state and Las Vegas' mayor asked the Ombudsman to investigate EPA-related issues from the proposed nuclear waste site, which has a Resource and Conservation and Recovery Act (RCRA) identification number. EPA's Office of General Counsel barred Mr. Martin from providing assistance.

World Trade Center At the request of Representative Jerrold Nadler, the Ombudsman opened a case to prepare cleanup recommendations and to probe EPA Administrator Whitman's widely publicized assertions that there were no environmental health hazards from the World Trade Center disaster. Ombudsman Martin conducted two eleven hour hearings hosted by Representative Nadler. The hearings developed extensive testimony contradicting Mr. Whitman's assertions, from scientists, citizens, firefighters and other cleanup workers, doctors and even counter terrorism experts. They exposed severe threats from asbestos and other particles released during the disaster. The Ombudsman presented detailed findings in testimony to the New York state assembly, New York city council, and New York City Board of Education. Facing this record, EPA reversed its initial decisions and took serious steps such as stopping release of contaminated cars, and starting a systematic program of indoor air testing for lower Manhattan. City authorities also acted to limit exposure of cleanup workers and school children to the newly confirmed health hazards. None of these efforts would have occurred if the District Court had allowed Ms. Whitman to eliminate the National Ombudsman function as originally planned. Further oversight has ended entirely since his forced removal.

Credibility Of OIG Ombudsman

Quite simply, there is none. EPA has created a counterfeit Ombudsman. The agency contends that it strengthened the Office by abolishing it. This oxymoron flunks the laugh test. As seen above, empirically the new, improved ombudsman has functionally abandoned the communities Mr. Martin was actively helping, on grounds that his files have been too disorderly to resume work for three months. That excuse is intellectually insulting on its face. It is more so in context: the OIG has not requested Mr. Martin's transition assistance in order to retrieve data or make any other progress necessary to resume work. Structurally, the reassignment institutionalizes a lack of independence, conflicts of interest and the merger of incompatible functions within the same agency. That is three strikes against legitimacy.

GAP seconds the conclusion of the U.S. Ombudsman Association that EPA Administrator Whitman's obstruction of Mr. Martin's investigations and reassignment "offers a textbook example of how administrators will interfere with the operation of internal agency ombudsmen." If anything, that is an understatement. In January District Court Judge Richard Roberts issued a Temporary Restraining Order (TRO) after finding the loss of independence so severe that it demonstrated a substantial likelihood the reassignment was illegal retaliation in violation of the First Amendment. His ruling noted that, flatly contradictory to General Accounting Office (GAO) recommendations, the reassigned Ombudsman would lose control over budget requests and spending, hiring and firing, and even decisions whether to investigate or otherwise help aggrieved communities.

GAO's testimony also noted that the merger would block the Ombudsman from investigating and seeking resolution of citizen grievances against the Office of Inspector General. Judge Roberts felt the same way. Another stated basis for his constitutional ruling was that the reassignment would block the Ombudsman from any meaningful actions without the IG's prior approval, just a month after the former issued a report detailing obstruction of Ombudsman investigations by the Inspector General.

Even if the reassignment were in good faith, however, at best it will be an exercise in frustration by attempting to merge incompatible functions. It is true that both offices involve fact finding about alleged EPA misconduct. That is where the common ground ends, however. The premise of Ombudsman investigations is a developing record for no fault, consensus problem solving. The cornerstone of OIG probes is finding evidence for prosecutions or other punishment in adversary proceedings, based on fault. Similarly, the OIG's primary role is to serve the agency chief. The Ombudsman's primary duty is serving the public. As seen by the expanding conflict of interest scandals involving EPA's Administrator, those missions can be as contradictory as the role of counsel for a plaintiff is to counsel for the defendant.

Recommendations

The hopelessness of EPA's counterfeit Ombudsman creates an opportunity for this Committee. There should be no hesitancy based on giving the agency a chance to finish perfecting the improved Ombudsman blueprint for which it has been taking credit since last November. As GAO noted, seven months after announcing the reorganization, the agency still has not issued specific procedures for the improved Ombudsman. EPA has not even come up with a position description for the job. The agency also has flunked the "use it or lose it" test.

GAP's recommendations are based on the following cornerstones for a credible agency: structural independence; freedom from conflict of interest; an authoritative mandate to investigate and make a difference through attempted resolution of citizen conflicts with EPA; and the capacity to protect those seeking assistance, combined with an absence of discretionary authority to undermine their rights. The following twelve recommendations are based on provisions of the OAS model law, modified for this context:

I. Structure of Ombudsman's Office

1) Appointment for a five year term by the President of an individual free from conflict of interest to head an Office that reports directly to Congress through relevant authorizing committees, subject to Senate confirmation. If the Office remains in the Executive branch, the it is essential that Ombudsman can only be removed for cause, with a waiver of 5 USC 2302(a)(2)(B) so the position is guaranteed coverage under the Whistleblower Protection Act.
2) Budgetary control and provision of all necessary resources.
3) Authority to hire and fire, assign work and take all other necessary personnel actions.
4) Freedom to open cases, conduct investigations and seek resolutions without prior approval.
5) Subpoena authority for documents and individuals.
6) Immunity from liability, except for actions that prejudice rights of those seeking assistance.
7) Authority to file suit, for temporary relief, to enjoin imminent hazards creating an irreparable harm to affected communities, or to enforce prior resolution of closed Ombudsman cases.
8) Authority to investigate alleged retaliation against complainants, and to sponsor Alternative Disputes Resolution (ADR) through mediation or arbitration to resolve the disputes.
9) Authority to sponsor ADR through mediation or arbitration of citizen grievances, for cases the Ombudsman believes has merit but does not have staff to investigate directly.
10) Direct access to the Administrator and, when the Ombudsman deems necessary, the President.
11) Responsibility and the necessary privilege to protect complainant confidentiality, and the duty to communicate regularly with complainants about Ombudsman efforts.
12) Responsibility to prepare annual public reports, and authority to issue special reports as the Ombudsman deems necessary.

GAP generally appreciates and supports parallel reform recommendations from the U.S. Ombudsman Association, and the GAO. We do not feel it necessary for a congressional

II. Whistleblower protection

Mr. Martin's experience personifies the necessity for an ombudsman to have state of the art whistleblower protection. That same prerequisite applies to those who communicate with his staff, including government employees or corporate witnesses. Fortunately, the Senate has just defined and unanimously approved state of the art whistleblower protection through its Corporate Fraud and Criminal Accountability Act. (S. 2010) The premises for effective protection are as follows:

1) Analogous to the Lloyd Lafollette Act (5 USC 7211) protecting those who communicate with Congress, the same model should be adjusted to protect all who communicate with the Office of Ombudsman.
2) Aggrieved whistleblowers and other sources could file complaints alleging discrimination because of communications with the Ombudsman, who would have 180 days to seek informal resolution. With the complainant's permission, the investigation could be continued.
3) After 180 days, the complainant could file a retaliation complaint for a jury trial in U.S. District Court to challenge illegal discrimination because of communications with the Ombudsman.
4) Adjudication of cases would be governed by the modern legal burdens of proof in the Whistleblower Protection Act of 1989. (5 USC 1214 and 1221)
5) A prevailing harassment victim would be entitled to a "make whole" remedy through compensatory and consequential damages.

GAP appreciates the opportunity to share our insights and recommendations on which direction to take at a crossroads that will have serious public health consequences from poisoning by toxic wastes that threaten all American communities. We will gladly work with your staff to develop specific language for any recommendations that you deem worthy of further consideration.

Respectfully submitted,

Tom Devine
Legal Director
Government Accountability Project