Canton Respository


New guidelines for ombudsmen crucial for IEL 

Copley Washington correspondent

WASHINGTON — For the past 16 years, communities unhappy with decisions the U.S. Environmental Protection Agency made about local hazardous waste sites have turned to the national ombudsman in the
EPA’s Superfund office.

Many say the office has played an invaluable role as a check on controversial and possibly flawed plans on how to clean up toxic Superfund sites and other landfills that could affect the health of hundreds or thousands of people.

Now, some say, the independence, credibility and effectiveness of the ombudsmen are threatened by new guidelines proposed by the EPA.

Critics say they could cost the public a crucial independent voice by, for example, letting the EPA decide if the national ombudsman has jurisdictions and keeping the ombudsman out of sites where lawsuits have been filed.

Had the guidelines been in place in 1998 when Lake Township area residents asked for the ombudsman to review cleanup plans at the Industrial Excess Landfill, the guidelines would have made it more difficult to initiate and conduct an investigation, said Hugh Kaufman, former chief investigator for Ombudsman Bob Martin.

“We would not readily have been able to hold hearings and do what we did,’’ Kaufman said.

The ombudsman can’t overturn or modify EPA decisions. But he can make recommendations, suggest changes and identify problems with EPA plans.

Even without the proposed guidelines, the ombudsman’s office has had to cut back on its work, and that has affected communities with Superfund sites, including Lake Township.

Martin opened the investigation at Lake’s toxic landfill in early 1999. He suspended it late last year, saying the EPA’s reassignment of Kaufman to other duties deprived him of the manpower needed to continue.

Threaten independence

But the new guidelines could threaten the most crucial aspect of the office — its independence.

“The crux of this is independence,’’ said Dean Gottehrer, who is reviewing the guidelines for the U.S. Ombudsman Association, which represents government ombudsmen.

In order for an ombudsman to be effective, Gottehrer said, “nobody can instruct the ombudsman what to investigate and what not to investigate, how to conduct an investigation, whom to interview, whether to hold public meetings, whether to record interviews or meetings, what to put in public reports, things of that sort.’’

The 15-page guidelines say the ombudsman will be “free from actual or apparent interference in the legitimate performance of his/her duties.’’

But Gottehrer, whose office is preparing a letter asking the EPA to withdraw the guidelines, said they actually create loopholes allowing EPA officials to suppress investigations and criticism.

Not so, according to Michael Shapiro, acting assistant administrator of the EPA’s Office of Solid Waste and Emergency Response, which oversees the ombudsman. He said the guidelines are needed to clarify the ombudsman role, but will preserve his independence.

Setting up structure

“What has happened over time is the nature of the work of the ombudsman has evolved past what any previously existing agency guidance dealt with,’’ Shapiro said. “As a matter of good government, we felt it was important to articulate a framework ... consistent with the intent and nature of the ombudsman function, but at the same time allowing everyone to understand what parameters governed the ombudsman operation.’’

Congress passed a law creating the ombudsman in 1984 but did not renew the law when it expired in 1989. The office has continued to exist under the authority of the EPA, an agency that reports to the president.

Late last month, two lawmakers announced plans to introduce another law giving the ombudsman congressional authorization.

Gottehrer believes the provision in the guidelines with “the greatest potential of compromising the ombudsman’s independence’’ is one that gives regional ombudsmen authority to investigate regional matters and puts the EPA in charge of resolving disputes between the national and regional ombudsmen over jurisdiction.

The EPA created the regional ombudsman office in 1995 and appoints ombudsmen in each of the agency’s 10 regions. Unlike the national ombudsman, the regional ombudsmen report to regional EPA officials.

The guidelines say the regional ombudsmen are “situated to serve as the first point of contact for members of the public’’ and will concern themselves with matters that “fall within the territorial boundaries of the region.’’

If the matter “involves a nationally significant issue, the regional ombudsman should consult with the national ombudsman about who is best suited ... to take the lead on the inquiry.”

And in “rare situations when there is not agreement,’’ the EPA steps in to resolve the dispute. EPA encourages national and regional ombudsmen to cooperate but, “right now, there is no process for resolving” disputes, Shapiro said.

But Gottehrer sees a potential for a regional ombudsman to insist on going to the EPA with any case where an inquiry by the national ombudsman could embarrass the EPA.

EPA’s potential veto

“A regional ombudsman could prevent the national ombudsman from investigating just about anything,’’ Gottehrer said.

That also concerns Danielle Brian, executive director of the Project on Government Oversight, which sent a letter to President Bush.

The guidelines “subordinate the national ombudsman below the regional ombudsmen,’’ she said.

By limiting the national ombudsman’s ability to get involved in regional cases, you keep him out of virtually all cases, she argues.

“You rarely find a Superfund site that is going to affect the entire nation. By definition, they are regional issues,’’ she said. “It’s a very blatant effort on the part of people who are hostile to (Martin’s) office to remove what vestiges of power he has.’’

The guidelines also make it more difficult for the ombudsman to hold public meetings, a key investigative tool for the office, according to Gottehrer.

“Because he doesn’t have subpoena power, he needs to be able to hold public meetings and ask people to come to them and address’’ questions.

No legalities require people to attend, but those who are invited and don’t show up become conspicuous by their absence.

“It’s a kind of sifting of evidence in public,’’ Gottehrer said.

Shapiro said the guidelines do not prevent the ombudsman from holding public meetings.

But they do require him to get permission to hold a meeting if it will address an issue that is in litigation or is the subject of active negotiations to settle a dispute.

They also require the ombudsman to “consult’’ with EPA officials and provide details on the benefits and agenda of a meeting before it can be held.

Gottehrer said that requirement could lead to a situation where the ombudsman backs off from a meeting because officials are antagonistic toward it.

“If you’re forced to consult and explain, say why you need to have this meeting, that may prove to be a barrier in having it,’’ he said.

Lawyers in, ombudsman out

Kaufman believes the guidelines threaten the ombudsman’s independence and ability to do his job other ways.

For example, he points to a provision saying the ombudsman “will avoid involvement in activities which might unduly impede ongoing legal proceedings.’’

Kaufman said that’s a “big problem’’ because the most important cases investigated by an ombudsman are often in litigation.

The EPA’s Shapiro said even if some issues at a site are under litigation, others may not be, and could be investigated by the ombudsman.

But he added that the “public may have to get an ombudsman involved earlier in certain situations ... in order to get the benefit of their involvement and avoid the potential that they could be restricted later” by lawsuits.’

Sharan Lee Levine, spokeswoman for the American Bar Association’s ombudsman standards, hasn’t had a chance to thoroughly review the EPA proposal. Based on a cursory review, she said, the ABA may have some “issues’’ with the plan, but she added that the EPA has “done a tremendous amount of work in devising a standard for ombudsmen in the United States.’’