This is the accessible text file for GAO report number GAO-02-947T 
entitled 'Environmental Protection: Issues for Consideration in the 
Reorganization of EPA's Ombudsman Function' which was released on July 
16, 2002.



This text file was formatted by the U.S. General Accounting Office 

(GAO) to be accessible to users with visual impairments, as part of a 

longer term project to improve GAO products’ accessibility. Every 

attempt has been made to maintain the structural and data integrity of 

the original printed product. Accessibility features, such as text 

descriptions of tables, consecutively numbered footnotes placed at the 

end of the file, and the text of agency comment letters, are provided 

but may not exactly duplicate the presentation or format of the printed 

version. The portable document format (PDF) file is an exact electronic 

replica of the printed version. We welcome your feedback. Please E-mail 

your comments regarding the contents or accessibility features of this 

document to Webmaster@gao.gov.



Testimony:



Before the Subcommittee on Environment and Hazardous Materials, 

Committee on Energy and Commerce, House of Representatives:



United States General Accounting Office:



GAO:



For Release on Delivery Expected at 10:00 EDT, 

Tuesday, July 16, 2002:



Environmental Protection:



Issues for Consideration in the Reorganization of EPA’s Ombudsman 

Function:



Statement of John B. Stephenson, Director

Natural Resources and Environment:



GAO-02-947T:



Mr. Chairman and Members of the Subcommittee:



I am pleased to be here today to discuss our work relating to the 

national hazardous waste ombudsman function at the Environmental 

Protection Agency (EPA). EPA’s hazardous waste ombudsman was first 

established within the Office of Solid Waste and Emergency Response as 

a result of the 1984 amendments to the Resource Conservation and 

Recovery Act.[Footnote 1] Recognizing that the 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. 

Over time, EPA expanded the national ombudsman’s jurisdiction to 

include Superfund[Footnote 2] and other hazardous waste programs 

managed by the Office of Solid Waste and Emergency Response and, by 

March 1996, EPA had designated ombudsmen in each of its 10 regional 

offices. While the national ombudsman’s activities ranged from 

providing information to investigating the merits of complaints, in 

recent years, the ombudsman played an increasingly prominent role 

through his investigations of citizen complaints referred by Members of 

Congress. Legislation now pending before the Congress would reauthorize 

an office of the ombudsman within EPA.[Footnote 3]



In November 2001, the EPA Administrator announced that the ombudsman 

function would be reorganized, effective in January 2002.[Footnote 4] 

Specifically, the agency announced that the national ombudsman would be 

relocated from the Office of Solid Waste and Emergency Response to the 

Office of Inspector General (OIG) and would address concerns across the 

spectrum of EPA programs, not just hazardous waste programs. The agency 

also retained the ombudsmen located in its regional offices. In 

response to a request letter from Representative Diana DeGette raising 

concerns about placing the national ombudsman within EPA’s OIG, we have 

recently initiated work to examine various issues related to the 

reorganization.



My testimony today, which is based on our 2001 report on EPA’s 

ombudsman[Footnote 5] and on the work now under way,



* describes the professional standards for independence and other key 

factors relevant to ombudsmen, including those located within federal 

agencies; and:



* provides our preliminary observations on issues raised by the 

reorganization of EPA’s ombudsman function.



For our 2001 report, we examined relevant standards of practice, 

including those published by the American Bar Association (ABA), The 

Ombudsman Association, and the U.S. Ombudsman Association. We also 

looked at four federal agencies whose ombudsmen deal with inquiries 

from the public: the Agency for Toxic Substances and Disease Registry 

(an agency of the Department of Health and Human Services), the Federal 

Deposit Insurance Corporation, the Food and Drug Administration, and 

the Internal Revenue Service. In preparing this testimony, we met with, 

and obtained information from, key EPA officials involved in the 

reorganization of the agency’s ombudsman function. However, because the 

agency has not yet developed detailed operating policies and procedures 

or an official description of the national ombudsman position within 

the OIG, and because we have only recently initiated work related to 

the reorganization, our observations are preliminary.



In summary:



* Although there are no federal requirements or standards specific to 

the operation of ombudsman offices, several professional organizations 

have published standards of practice relevant to ombudsmen who deal 

with inquiries from the public. These standards incorporate the core 

principles of independence, impartiality, and confidentiality. 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. According to ABA guidelines, key indicators of 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. Impartiality requires ombudsmen to conduct inquiries and 

investigations in a manner free from initial bias and conflicts of 

interest. Confidentiality requires, with some exceptions, that 

ombudsmen not disclose, and not be required to disclose, any 

information provided in confidence. While federal agencies face some 

legal and practical constraints in implementing some aspects of these 

standards, ombudsmen at the federal agencies we reviewed for our 2001 

report reflected aspects of the standards. For example, at the Federal 

Deposit Insurance Corporation, the Food and Drug Administration, and 

the Internal Revenue Service, the ombudsman’s office had its own budget 

and reported directly to the head of the agency.



* If EPA intends to have an ombudsman function that is consistent with 

the way the position is typically defined in the ombudsman community, 

placing the national ombudsman within the OIG does not achieve that 

objective. Specifically, the role of an ombudsman typically includes 

program operating responsibilities, such as helping to informally 

resolve program-related issues and mediating disagreements between the 

agency and the public. Including these responsibilities in the national 

ombudsman’s role within the OIG would likely conflict with the 

Inspector General Act, as amended, which prohibits the transfer of 

program operating responsibilities to the Inspector General; yet, 

omitting these responsibilities would result in establishing an 

“ombudsman” that is not fully consistent with the function as defined 

within the ombudsman community. Further, while EPA’s reorganization 

removes the national ombudsman from the Office of Solid Waste and 

Emergency Response--whose programs the ombudsman is charged with 

investigating--it may not result in a degree of structural or 

functional independence that is consistent with professional standards 

for ombudsmen for several reasons.



* The national ombudsman, as the position is currently envisioned, 

still will not be able to exercise independent control over the budget 

and staff resources needed to implement the function. According to EPA, 

authority for budget and staffing for the national ombudsman function 

will rest with the Assistant Inspector General for Congressional and 

Public Liaison.



* Prior to the reorganization, the national ombudsman could 

independently determine which cases to pursue; however, according to 

EPA, the Inspector General has the overall responsibility for the work 

performed by the Office, and no single staff member--including the 

national ombudsman--has the authority to select and prioritize his or 

her own caseload independent of all other needs.



* In addition, the reorganization does not appear to address concerns 

we raised in our 2001 report about the independence of the regional 

ombudsmen, whose position is generally seen as a collateral duty within 

EPA. They will continue to have a dual role in fulfilling some 

ombudsman responsibilities while also serving in line management 

positions, primarily within the Superfund program.



Finally, placing the ombudsman in the OIG could affect the activities 

of the Inspector General; for example, the OIG could no longer 

independently audit or investigate the ombudsman, as the OIG can at 

other federal agencies where the ombudsman function and the OIG are 

separate entities.



Relevant Professional Standards for Ombudsmen:



Through the impartial and independent investigation of citizens’ 

complaints, federal ombudsmen help agencies be more responsive to the 

public, including people who believe that their concerns have not been 

dealt with fully or fairly through normal channels. Ombudsmen may 

recommend ways to resolve individual complaints or more systemic 

problems, and may help to informally resolve disagreements between the 

agency and the public.



While there are no federal requirements or standards specific to the 

operation of federal ombudsman offices,[Footnote 6] 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.[Footnote 7] In addition, several professional organizations 

have published relevant standards of practice for ombudsmen. Both the 

recommendations of the Administrative Conference of the United States 

and the standards of practice adopted by various ombudsman associations 

incorporate the core principles of independence, impartiality 

(neutrality), and confidentiality. For example, the ABA’s 

standards[Footnote 8] 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.



Relevant professional standards contain a variety of criteria for 

assessing an ombudsman’s independence, 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; they advocate that the ombudsman report to the highest 

authority in the organization.



According to the ABA’s recommended standards, “the ombudsman’s 

structural independence is the foundation upon which the ombudsman’s 

impartiality is built.” One aspect of the core principle of 

impartiality is fairness. According to an article published by the U.S. 

Ombudsman Association on 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.[Footnote 9]



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 ABA recommends that an ombudsman issue and 

publish periodic reports summarizing the findings and activities of the 

office to ensure its accountability to the public. Similarly, 

recommendations by the Administrative Conference of the United States 

regarding federal ombudsmen state that they should be required to 

submit periodic reports summarizing their activities, recommendations, 

and the relevant agency’s responses.



Federal agencies face legal and practical constraints in implementing 

some aspects of these standards because the standards were not designed 

primarily with federal agency ombudsmen in mind. However, ombudsmen at 

the federal agencies we reviewed for our 2001 report reflected aspects 

of the standards. We examined the ombudsman function at four federal 

agencies in addition to EPA and found that three of them--the Federal 

Deposit Insurance Corporation, the Food and Drug Administration, and 

the Internal Revenue Service--had an independent office of the 

ombudsman that reported to the highest level in the agency, thus giving 

the ombudsmen structural independence.[Footnote 10] In addition, the 

ombudsmen at these three agencies had functional independence, 

including the authority to hire, supervise, discipline, and terminate 

their staff, consistent with the authority granted to other offices 

within their agencies. They also had control over their budget 

resources. The exception was the ombudsman at the Agency for Toxic 

Substances and Disease Registry, who did not have a separate office 

with staff or a separate budget. This ombudsman reported to the 

Assistant Administrator of the agency instead of the agency head.



Issues Raised by EPA’s Reorganization of the Ombudsman Function:



In our July 2001 report, we recommended, among other things, that EPA 

modify its organizational structure so that the function would be 

located outside of the Office of Solid Waste and Emergency Response, 

whose activities the national ombudsman was charged with reviewing. EPA 

addresses this recommendation through its placement of the national 

ombudsman within the OIG, where the national ombudsman will report to a 

newly-created position of Assistant Inspector General for Congressional 

and Public Liaison. OIG officials also told us that locating the 

national ombudsman function within the OIG offers the prospect of 

additional resources and enhanced investigative capability. According 

to the officials, the national ombudsman will likely have a small 

permanent staff but will also be able to access OIG staff members with 

expertise in specific subject matters, such as hazardous waste or water 

pollution, on an as-needed basis. Further, OIG officials anticipate 

that the ombudsman will adopt many of the office’s existing 

recordkeeping and reporting practices, which could help address the 

concerns we noted in our report about accountability and fairness to 

the parties subject to an ombudsman investigation.



Despite these aspects of EPA’s reorganization, several issues merit 

further consideration. First and foremost is the question of intent in 

establishing an ombudsman function. The term “ombudsman,” as defined 

within the ombudsman community, carries with it certain expectations. 

The role of an ombudsman typically includes program operating 

responsibilities, such as helping to informally resolve program-related 

issues and mediating disagreements between the agency and the public. 

Assigning these responsibilities to an office within the OIG would 

conflict with statutory restrictions on the Inspector General’s 

activities. Specifically, the Inspector General Act, as amended, 

prohibits an agency from transferring any function, power, or duty 

involving program responsibilities to its OIG.[Footnote 11] However, if 

EPA omits these responsibilities from the position within the OIG, then 

it will not have established an “ombudsman” as the function is defined 

within the ombudsman community. In our April 2001 report, we noted that 

some federal experts in dispute resolution were concerned that among 

the growing number of federal ombudsman offices there are some 

individuals or activities described as “ombuds” or “ombuds offices” 

that do not generally conform to the standards of practice for 

ombudsmen.



A related issue is that ombudsmen generally serve as a key focal point 

for interaction between the government, or a particular government 

agency, and the general public. By placing the national ombudsman 

function within its OIG, EPA appears to be altering the relationship 

between the function and the individuals that make inquiries or 

complaints. Ombudsmen typically see their role as being responsive to 

the public, without being an advocate. However, EPA’s reorganization 

signals a subtle change in emphasis: OIG officials see the ombudsman 

function as a source of information regarding the types of issues that 

the OIG should be investigating. Similarly, rather than issue reports 

to complainants, OIG officials expect that the national ombudsman’s 

reports will be addressed to the EPA Administrator, consistent with the 

reporting procedures for other OIG offices. The officials told us that 

their procedures for the national ombudsman function, which are still 

being developed, could provide for sending a copy of the final report 

or a summary of the investigation to the original complainant along 

with a separate cover letter when the report is issued to the 

Administrator.



Based on the preliminary information available from EPA, the 

reorganization raises other issues regarding the consistency of the 

agency’s ombudsman function with relevant professional standards. For 

example, under EPA’s reorganization, the national ombudsman will not be 

able to exercise independent control over budget and staff resources, 

even within the general constraints that are faced by federal agencies. 

According to OIG officials, the national ombudsman will have input into 

the hiring, assignment, and supervision of staff, but overall authority 

for staff resources and the budget allocation rests with the Assistant 

Inspector General for Congressional and Public Liaison. OIG officials 

pointed out that the issue our July 2001 report raised about control 

over budget and staff resources was closely linked to the ombudsman’s 

placement within the Office of Solid Waste and Emergency Response. The 

officials believe that once the national ombudsman function was 

relocated to the OIG, the inability to control resources became much 

less significant as an obstacle to operational independence. They 

maintain that although the ombudsman is not an independent entity 

within the OIG, the position is independent by virtue of the OIG’s 

independence.



Despite the OIG’s argument, we note that the national ombudsman will 

also lack authority to independently select and prioritize cases that 

warrant investigation. According to EPA, the Inspector General has the 

overall responsibility for the work performed by the OIG, and no single 

staff member--including the ombudsman--has the authority to select and 

prioritize his or her own caseload independent of all other needs. 

Decisions on whether complaints warrant a more detailed review will be 

made by the Assistant Inspector General for Congressional and Public 

Liaison in consultation with the national ombudsman and staff. EPA 

officials are currently reviewing the case files obtained from the 

former ombudsman, in part to determine the anticipated workload and an 

appropriate allocation of resources. According to OIG officials, the 

national ombudsman will have access to other OIG resources as needed, 

but EPA has not yet defined how decisions will be made regarding the 

assignment of these resources. Under the ABA guidelines, one measure of 

independence is a budget funded at a level sufficient to carry out the 

ombudsman’s responsibilities. However, if both the ombudsman’s budget 

and workload are outside his or her control, then the ombudsman would 

be unable to assure that the resources for implementing the function 

are adequate. Ombudsmen at other federal agencies must live within a 

budget and are subject to the same spending constraints as other 

offices within their agencies, but they can set their own priorities 

and decide how their funds will be spent.



EPA has also not yet fully defined the role of its regional ombudsmen 

or the nature of their relationship with the national ombudsman in the 

OIG. EPA officials told us that the relationship between the national 

and regional ombudsmen is a “work in progress” and that the OIG will be 

developing procedures for when and how interactions will occur. 

Depending on how EPA ultimately defines the role of its regional 

ombudsmen, their continued lack of independence could remain an issue. 

In our July 2001 report, we concluded that the other duties assigned to 

the regional ombudsmen--primarily line management positions within the 

Superfund program--hamper their independence. Among other things, we 

cited guidance from The Ombudsman Association, which states that an 

ombudsman should serve “no additional role within an organization” 

because holding another position would compromise the ombudsman’s 

neutrality. According to our discussions with officials from the Office 

of Solid Waste and Emergency Response and the OIG, the investigative 

aspects of the ombudsman function will be assigned to the OIG, but it 

appears that the regional ombudsmen will respond to inquiries and have 

a role in informally resolving issues between the agency and the public 

before they escalate into complaints about how EPA operates. For the 

time being, EPA officials expect the regional ombudsmen to retain their 

line management positions. [Footnote 12]



Finally, including the national ombudsman function within the Office of 

the Inspector General raises concerns about the effect on the OIG, even 

if EPA defines the ombudsman’s role in a way that avoids conflict with 

the Inspector General Act. By having the ombudsman function as a part 

of the OIG, the Inspector General could no longer independently audit 

and investigate that function, as is the case at other federal agencies 

where the ombudsman function and the OIG are separate entities. As we 

noted in a June 2001 report on certain activities of the OIG at the 

Department of Housing and Urban Development, under applicable 

government auditing standards the OIG cannot independently and 

impartially audit and investigate activities it is directly involved 

in.[Footnote 13]



A related issue concerns situations in which the national ombudsman 

receives an inquiry or complaint about a matter that has already been 

investigated by the OIG. For example, OIG reports are typically 

transmitted to the Administrator after a review by the Inspector 

General. A process that requires the Inspector General to review an 

ombudsman-prepared report that is critical of, or could be construed as 

reflecting negatively on, previous OIG work could pose a conflict for 

the Inspector General. OIG officials are currently working on detailed 

procedures for the national ombudsman function, including criteria for 

opening, prioritizing, and closing cases, and will have to address this 

issue as part of their effort.



In conclusion, Mr. Chairman, we believe that several issues need to be 

considered in EPA’s reorganization of its ombudsman function. The first 

is perhaps the most fundamental--that is, the need to clarify the 

intent. We look forward to working with Members of the Subcommittee as 

you consider the best way of resolving these issues.



This concludes my prepared statement. I would be happy to respond to 

any questions that you or other Members of the Subcommittee may have at 

this time.



Contact and Acknowledgments

For further information, please contact John B. Stephenson at 

(202) 512-3841. Individuals making key contributions to this testimony 

included Ellen Crocker, Rich Johnson, Les Mahagan, and Cynthia Norris.



FOOTNOTES



[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.



[3] See S. 606 and H.R. 1431, The Ombudsman Reauthorization Act of 

2001.



[4] The transfer of the ombudsman function to EPA’s Office of Inspector 

General actually took place on April 13, 2002, following the dismissal 

by a federal district court of a legal challenge to the reorganization.



[5] U.S. General Accounting Office, Hazardous Waste: EPA’s National and 

Regional Ombudsmen Do Not Have Sufficient Independence, GAO-01-813 

(Washington, D.C.; 

July 27, 2001).



[6] The federal Interagency Alternative Dispute Resolution Working 

Group will be developing guidance on standards of practice for federal 

ombudsmen, as recommended in a GAO report entitled, Human Capital: The 

Role of Ombudsmen in Dispute Resolution, 

GAO-01-466 (Washington, D.C.; Apr. 13, 2001).



[7] 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.



[8] To help develop the 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 Ombudsman 

Association, the U.S. Ombudsman Association, and the University and 

College Ombuds Association.



[9] 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).



[10] For example, the ombudsmen from the Food and Drug Administration 

and the Internal Revenue Service each reported to the Office of the 

Commissioner in their respective agencies.



[11] See 5 U.S.C. Appx. 3 § 9(a)(2).



[12] EPA officials told us that they are piloting a new approach in 

three regional offices in which the ombudsmen will be increasing their 

level of involvement in the ombudsman role, although the individuals 

will continue to have other responsibilities.



[13] U.S. General Accounting Office, HUD Inspector General: Actions 

Needed to Strengthen Management and Oversight of Operation Safe Home, 

GAO-01-794 (Washington, D.C.: June 29, 2001)