Superfund Investigations Suspended as Furor Rages at EPA

By Brian Hansen

WASHINGTON, DC, January 8, 2001 (ENS) - A federal ombudsman responsible for investigating complaints leveled against the U.S. Environmental Protection Agency has suspended his inquiries into nearly two dozen allegedly mismanaged hazardous waste cleanup projects, claiming that top EPA officials have blocked him from doing his job.

Robert Martin, the EPA's national hazardous waste ombudsman, announced the suspension of the investigations on Friday in a letter sent to key government officials and other stakeholders involved in the allegedly mishandled cleanup cases.

"In view of reported recent personnel transfers and pending implementation of EPA Ombudsman Guidelines ... all schedules for all National Ombudsman Cases have been put on hold and/or delayed until further notice," Martin wrote. "I will communicate with you as soon as I have received clear and consistent direction from EPA management, which will allow me to develop definitive schedules for performing work on all the pending National Ombudsman Cases."

Martin

EPA National Hazardous Waste Ombudsman Robert MArtin, right, at a hearing last year in Denver, Colorado. On the left is U.S. Senator Wayne Allard, a Republican from Colorado who has been one of Martin's biggest defenders. (Photo by Mark Slupe, courtesy the Colorado Daily)

Martin and his staff had been investigating the cleanup projects at the request of a number of federal lawmakers, who were concerned that the EPA's activities in the cases were not protective of public health and the environment.

The investigations that were put on "hold" Friday pertained to some of the most controversial hazardous sites in the nation, such as the Honeywell/Solitron Superfund site in Florida, the Bunker Hill Superfund site in Idaho, and the Rocky Mountain Arsenal Superfund site in Colorado.

A total of 20 EPA hazardous waste ombudsman investigations had been officially suspended as of Friday afternoon.

Other investigations on the newly announced suspension list include the Alberton train derailment case in Montana, the Marjol Battery case in Pennsylvania, the sewage sludge contamination case in Georgia, the Stauffer/Atkemix case in Florida, and the Von Roll Waste Technologies Industries hazardous waste incinerator case in Ohio.

ALLEGATIONS OF "POLITICAL REVENGE"

Martin sent courtesy copies of his letter announcing the suspension of the investigations to top EPA officials, including administrator Carol Browner and assistant administrator Tim Fields.

Fields

EPA assistant administrator Tim Fields, right, chats with administrator Carol Browner at an event in Washington late last year (Photo courtesy EPA)

Fields, who oversees the EPA's solid waste division, played a key role in the "personnel transfers" that Martin described in his letter. In a controversial move that has drawn fire from environmental activists and a host of federal lawmakers, Fields last month relieved Martin's chief investigator, Hugh Kaufman, of his duties in the EPA ombudsman's office.

Kaufman, a 30 year EPA veteran, claims that he was ousted from the ombudsman's office because he exposed EPA wrongdoing at a number of agency managed hazardous waste cleanup sites.

An aggressive investigator, Kaufman has accused EPA officials of misleading the public, hiding documents, conspiring with polluters, and approving cleanup schemes that are not protective of public health and the environment.

Moreover, Kaufman maintains that his ouster was "political revenge" for his office's damning revelations about failed Democratic presidential candidate Al Gore, whose environmental record was called into question by an ombudsman's report released just five days before the 2000 presidential election.

Kaufman

Hugh Kaufman was relieved of his investigatory duties the day after Al Gore conceded the presidential election to George W. Bush (Photo by Mark Slupe, courtesy the Colorado Daily )

Kaufman, in fact, was stripped of his investigatory powers by Fields just one day after Gore formally conceded the contested presidential election to Republican George W. Bush, the two term governor of Texas. Fields, like EPA chief Browner, is a political appointee of the outgoing Clinton administration.

"It's revenge of the EPA bureaucracy and revenge of the politicos who wanted Gore elected," Kaufman told ENS of his recent removal. "After Gore conceded, there was a confluence of revenge from the politicos and the entrenched bureaucracy to cripple the ombudsman's office."

NEW OMBUDSMAN'S GUIDELINES CALLED INTO QUESTION

The EPA's first step in "killing" the [ombudsman's] office, Kaufman said, was to get rid of him as the office's only full time investigator. The EPA took another major step towards that alleged goal last week, Kaufman said, by publishing in the Federal Register a set of proposed guidelines that outline how the office is to operate.

"Basically, the guidelines totally violate every minimum requirement for ombudsmen as stated by the American Bar Association, the U.S. Ombudsman Association, and the Administrative Conference of the United States," Kaufman said. "The guidelines give the ombudsman absolutely no independence, and that will kill the program."

Kaufman said that the proposed guidelines would require the EPA ombudsman to get approval from the agency's politically appointed managers before doing anything of substance. The guidelines would prevent the ombudsman's office from selecting its own cases, while allowing the people and institutions to be investigated to decide "whether they want to be investigated or not," he said.

Kaufman has had to launch a campaign of his own to dispel the notion that he supports the new guidelines. That misconception was put in motion by Fields, who in an internal EPA memo last week thanked Kaufman and a host of other agency employees for their "help in writing [the guidelines]."

Kaufman, in his own memo, pointed out that he did not help to draft the new guidelines.

"In fact, as you know, I opposed [the guidelines] because [they] strip away what limited ombudsman function EPA presently has," Kaufman wrote. "The proposed [guidelines] falsely imply to the public and to Congress that there is a real ombudsman function at EPA, [and] this is simply not true."

REPUBLICAN LAWMAKERS BLAST EPA

That comes as no surprise to three Republican U.S. Senators who have utilized the ombudsman's office to investigate allegedly mismanaged cleanup cases in their states. In a letter addressed to Fields, Idaho Senators Mike Crapo and Larry Craig, along with Colorado Senator Wayne Allard, called on the EPA to scrap the proposed new guidelines. The Senators, in their letter, said that the guidelines would jeopardize the "integrity, function, and independence of the Ombudsman's Office."

"The limitations and prohibitions prescribed by the [proposed guidelines] are very troubling to us," the three Western Senators wrote. "We consequently request that any implementation of [the guidelines] be deferred indefinitely."

Crapo

Idaho Senator Mike Crapo is one of a host of federal lawmakers who has called on the EPA to scrap the new ombudsman guidelines (Photo courtesy the Senator's Office)

That view is shared by at least 11 House members, who last week called on President-elect Bush to remedy a "very serious situation that is occurring at the EPA in the waning days of the Clinton administration."

In their letter to Bush, the 11 House members charge that the EPA, through Fields, has launched a process of "retribution" against Martin, Kaufman, and the other members of the ombudsman's office. Kaufman's reassignment, the House members pointed out, would effectively prevent the office from making any progress on its many pending investigations. And the newly proposed guidelines, the members added, would "essentially prevent the Ombudsman from performing his official duties."

"We believe that maintaining a strong EPA Ombudsman function will ensure that EPA continues to make environmental policy decisions that are both common sense and community oriented," the House members wrote in their letter to Bush. "We look to your administration to prevent permanent damage from being done to the integrity of this office at the initiative of Clinton political appointees in the immediate wake after Vice President Gore's concession speech."

EPA FIRES BACK

Fields has denied charges that the EPA is trying to cripple the functioning of its own ombudsman's office. In a recent letter to Colorado Senator Wayne Allard, Fields said that he believes "strongly in the Ombudsman function and will continue to provide appropriate resources and staff to support it as a credible and valuable entity."

"We believe that an effective ombudsman ... can materially improve citizen satisfaction and the workings of government, reduce the occasion for litigation, and provide [EPA] decision makers with the information necessary to identify and resolve problems," Fields wrote in his letter to Allard.

As evidence of the EPA's commitment, Fields pointed out to Allard that the agency has granted the ombudsman's office more than $900,000 in this fiscal year to cover salaries, contracts, and other support costs. The office's current budget, Fields told Allard, is nearly double what it has been in previous years.

Fields also pointed out that he has supplemented the office's staff with an additional environmental scientist, as well as several student interns who were hired with grant funds.

But Fields told Allard that he could not comment on the reassignment of Kaufman, citing a federal law that he said precluded him from discussing specific information regarding an "internal personnel decision." Fields has also declined to respond to ENS queries about the reasons for Kaufman's reassignment.

KAUFMAN CRIES FOUL

Kaufman told ENS that Fields "misled" Allard, Crapo and Craig regarding the EPA's commitment to supporting the ombudsman's office. Kaufman said that because of the way the ombudsman's office is structured, the additional funding and staff resources that have been extended to it are essentially meaningless.

"All of that money is controlled by management ... and the ombudsman has no authority to supervise any of those [human] resources," Kaufman said. "Just like me, they can be taken away at any time by management and directed to do other things."

Kaufman

Hugh Kaufman says the EPA is misleading Congress and the public about its committment to support the ombudsman's office (Photo by Mark Slupe, courtesy the Colorado Daily)

Martin alluded to that point in his letter announcing the suspension of his office's casework, saying that "reported" personnel transfers have made it impossible for him to conduct his work.

Sources in the ombudsman's office tell ENS that Martin has still not been officially notified by Fields or other top EPA officials about Kaufman's removal.

But more directly, Martin wrote in his letter that such personnel transfers are "beyond [his] control as National Ombudsman."

FIELDS WIELDS THE PEN

Fields is directly responsible for undermining Martin's authority to supervise employees in his office, according to EPA documents made available to ENS through the federal Freedom of Information Act. Fields did so - without first informing Martin - by scribbling over the word "Director" on Martin's official title, as it appeared on Martin's job performance report for fiscal year 1997. The change, which Fields initialed in shorthand, effectively stripped Martin of his abilities to supervise employees.

Martin was not aware of the change in his job description until several months later, when he received a copy of his evaluation. He immediately wrote a letter to Fields, saying that "we did not discuss any changes in my job," further requesting that the change be "appropriately corrected."

Martin noted that because he had not been notified of the change in his job description, he technically committed perjury when he testified in 1997 before a federal grand jury hearing evidence pertaining to the Times Beach Superfund Site in Missouri. Fields, who knew that Martin had been subpoenaed to testify before the grand jury, failed to inform Martin of the change in his job description prior to his testimony.

For Kaufman, the incident further illustrates what he said is the underlying principle of the entire situation: the lack of independence and autonomy for the ombudsman's office. And such a flawed institutional structure, Kaufman said, would not be tolerated at other federal agencies.

For example, there would be "public outrage" if the ombudsman for the Internal Revenue Service (IRS) had to get permission from politically appointed IRS officials before conducting tax audits of powerful corporations, Kaufman said. Such a system, he said, would be exceedingly vulnerable to corruption, collusion and political deal making.

"Why should it be that way at EPA?" Kaufman asked.

AN UNSETTLED FUTURE

There is currently legislation pending on Capitol Hill that would give the EPA ombudsman's office broad legal authority and institutional independence to conduct its investigations. The legislation, sponsored by Colorado Senator Wayne Allard, will be reintroduced at the earliest possible date, sources tell ENS.

Questions about the ombudsman's function are also likely to constitute a significant part of the upcoming Senate confirmation hearing on Christine Todd Whitman, President-elect Bush's nominee for EPA administrator. Colorado Senator Wayne Allard, for one, will be "very, very disappointed" if Whitman does not express enthusiastic support for a strong and independent EPA ombudsman, sources tell ENS.

Efforts are continuing on Capitol Hill to have Kaufman reinstated to his post in the ombudsman's office before the Clinton administration relinquishes power to the Bush team on January 20, sources tell ENS.

Whitman's confirmation hearing is slated for January 16 in the Senate's Environment and Public Works Committee.

The public comment period on the EPA's proposed ombudsman guidelines will close on March 5. To read the guidelines and to comment on them, log on to: http://www.epa.gov/swerrims/whatsnew.htm.