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“EPA, Please Hold...”

Has Washington politics derailed the Alberton spill investigation?

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An air of nervous anticipation hangs heavily over the room in Missoula’s Boone and Crockett Club on a gray Saturday morning in early November. About 100 Alberton residents are gathered for their first opportunity to tell their stories on the record of how an April 1996 Montana Rail Link train derailment and mixed chemical spill changed their lives irrevocably. The magnitude of their stories and their expectations for these official proceedings can be measured by the stockpile of provisions laid out for the long day ahead: coffee urns, stacks of bagels, trays of cold cuts and a sheet cake that read, “Thank you and welcome, Bob Martin and staff.”

Robert Martin is national ombudsman for the U.S. Environmental Protection Agency (EPA), an office created by Congress in 1984 to serve as an independent watchdog to investigate complaints from citizens and Congress when they believe the EPA has mishandled a hazardous waste cleanup. Of the hundreds of cleanups underway nationwide, Martin agrees to investigate only about two dozen or so cases annually, and last year he agreed to a request by U.S. Sen. Max Baucus (D-Mont.) to look into the EPA’s handling of the Alberton disaster.

Essential to the success of the national ombudsman has been his relative independence from the agency he is charged with investigating. But in recent weeks, that independence has been undermined by significant policy changes proposed by EPA senior administrators, as well as the reassignment of much of the ombudsman’s staff, including his chief investigator, Hugh Kaufman.

In a Jan. 5 memo to the interested parties in Alberton, as well as 19 other cleanup sites under investigation, Martin writes, “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 adds that he will update the affected communities about the resumption of those investigations “as soon as I receive clear and consistent direction from EPA management.”

The new proposed guidelines, issued by EPA Assistant Administrator Tim Fields, who oversees the Superfund program, essentially strip the ombudsman of his power to independently decide which cases he investigates. Martin would no longer be allowed to call public meetings in affected communities without the EPA’s approval, nor could he share documents with public officials or even discuss his investigations with the media.

Moreover, the new rules also bar the ombudsman from investigating cases still involved in litigation. But according to Kaufman, there are no EPA cleanup cases that Martin has investigated that do not have some ongoing litigation. Assuming these rules are enacted as proposed (sometime after March 5), they will effectively short-circuit the Alberton investigation, which has several lawsuits pending.

“Basically, the whole ombudsman function is being eviscerated,” says Kaufman, a hazardous waste expert and 30-year veteran of the EPA who has spent the last three years with Martin investigating mismanagement and wrongdoing in EPA cleanup efforts, including the Alberton spill and the Bunker Hill Superfund site in Idaho’s Silver Valley.

“It’s the first step in dismantling the ombudsman function,” says Kaufman. “It was the convergence of some of the politicos and the entrenched bureaucracy who hate ombudsmen.”

Opinions offered by the national ombudsman do not carry the weight of law, and the EPA is under no obligation to agree with his findings or adopt his recommendations. That said, his rulings carry considerable political clout, especially since many of his investigations are launched at the request of Congress. Historically, most of the ombudsman’s recommendations have been followed by the EPA. Others have resulted in criminal indictments.

News that the EPA had stripped Martin of his staff, power and independence immediately raised the hackles of many members of Congress. “By virtually eliminating this office, the EPA now sends a message to the American public that it can and will operate in cloaked secrecy and make decisions affecting the health of countless citizens without any accountability,” writes U.S. Sen. Wayne Allard (R-Colo.) in a Dec. 18 letter to Fields.

In a separate Jan. 3 joint letter to Fields, Allard, along with Sens. Mike Crapo (R-Idaho) and Larry Craig (R-Idaho) call on the EPA to scrap the new guidelines as they “erode the Ombudsman’s authority” and “raise concerns that the integrity, function and independence of the Ombudsman’s Office may be jeopardized.” Both Crapo and Craig are longtime critics of the EPA’s management of the Bunker Hill Superfund site, while Allard has criticized the agency’s handling of the Shattuck Superfund site in Denver.

Eleven members of the U.S. House of Representatives penned a similar letter to the Bush-Cheney Presidential Transition Team, asking President-elect George Bush to remedy the situation as soon as possible.

“These guidelines will essentially prevent the Ombudsman from performing his official duties,” the Jan. 2 letter reads. “[W]e 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.”

EPA senior staff deny the charge that the agency is trying to de-fang the ombudsman. In a response to the senators’ query, Fields writes, “I assure you that I have not eliminated the Ombudsman function nor is there any intention to do so. … [We] will continue to provide appropriate resources and staff to support [the Ombudsman’s office] as a credible and viable entity,” pointing to more than $900,000 allocated to the ombudsman’s office for the current fiscal year.

But Kaufman remains skeptical of such reassurances, asking what good those resources do for an ombudsman who has little control over how or where they’re used. In effect, says Kaufman, Martin must now ask permission to launch an investigation from the very people he is charged with investigating. Kaufman notes that Martin was never consulted about the policy changes nor was he told that his staff was being reassigned or eliminated.

Kaufman further questions the timing of his reassignment from the ombudsman’s office, calling it “political retaliation” from the Clinton Administration for embarrassing revelations made about the environmental record of presidential candidate Al Gore, which the national ombudsman made public only days before the November election. Kaufman was relieved of his investigative duties within 24 hours of Gore’s concession speech.

“One of the underpinnings of the Ombudsman function is to do the public’s business in public,” says Kaufman. “And management doesn’t like that. What entrenched bureaucracy does?”

According to a source at the EPA in Washington, D.C., who asked not to be identified, Martin’s relationship with the EPA’s top brass has been strained since 1997, when his investigation of the Times Beach Superfund site in Missouri led to the impanelment of a criminal grand jury. Among the targets of that criminal probe was a contractor who employed the sister of EPA Administrator Carol Browner, a Clinton appointee.

Kaufman would not speculate on what effect, if any, the suspension of the Alberton investigation will have, since it depends upon how long the delay lasts. At the conclusion of the November hearing in Missoula, Martin announced that his office would hold at least one more hearing in Montana, this time providing at least 30 days notice to the interested parties, many of whom did not appear, claiming they had insufficient time to prepare testimony.

Of course, many of the changes made to the ombudsman’s office could be quickly reversed by Christine Todd Whitman, Bush’s nominee to head up the EPA. Among the Democrats sitting on the Senate Committee on the Environment and Public Works, which is conducting Whitman’s confirmation hearing, is Montana’s senior senator, Max Baucus.

Baucus was unavailable to comment on the most recent changes to the ombudsman’s office, though his communications director, Bill Lombardi, says, “Whenever citizens have serious questions regarding the state of our health, Max always supports getting answers as quickly as possible. He’s been vigilant in doing that in Libby, and I know he’ll look out for the health of Alberton residents as well.”

“Christy Whitman has the power, with the stroke of a pen, to put us back in business,” says Kaufman. “And Max Baucus has the power to ask her to do it. If he doesn’t, then clearly he’s not really interested in having the [Alberton] case investigated.”

The message from the Alberton Community Coalition for Environmental Health, expressed by Lucinda Hodges, one of the most vocal victims of the Alberton disaster, was a simple one: “The hopes and prayers of many chemically injured families are riding on this one government office, which is sparsely staffed, under-funded and under attack by the EPA.”

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