Eye on the EPA: Less Than Thorough - Flaws in Recent EPA OIG Investigations
February 13, 2014
The Office of the Inspector General (OIG) of the U.S. Environmental Protection Agency (EPA) was designed to be independent of political influence while investigating and preventing waste, fraud, and abuse at the Agency. Recent reports coming from the OIG have raised concerns from the Senate Committee on Environment and Public Works (EPW) Republicans due to a lack of transparency and potential bias when crafting and researching their reports. Below are three examples showing how the OIG has failed to impartially investigate the Agency and has simply rubberstamped EPA's controversial practices. EPW Republicans believe it is time for Congress to have more scrutiny over what is going on in the IG's office at EPA.
OIG Ignores Hydraulic Fracturing Facts & Gives EPA Expanded Authority
In 2010, EPA Region 6 issued an Emergency Administrative Order (EAO), aimed at shutting down natural gas production wells belonging to Range Resources, an oil and gas company operating in Parker County, Texas to further justify onerous federal regulations on hydraulic fracturing. Amidst an ongoing State investigation EPA interceded formally claiming that it had "determined" that the company's drilling for natural gas had "caused or contributed to the contamination of at least two residential drinking water wells." The evidence behind the EAO was both flawed and manipulated, having been highly criticized and disputed by State officials, Members of Congress, and a wide range of stakeholders. EPA's very issuance of the EAO was an unnecessary usurpation of traditional state authority and an attempt to manufacture a smoking gun against hydraulic fracturing.
The OIG's report on EPA's actions against Range Resources was published a year and a half after the initial request. The OIG failed to hold EPA accountable for a multitude of inappropriate and unjustified actions in issuing the EAO. The report entirely ignored EPA's political dealings and collusion with far-left environmental groups, and disregarded EPA's manipulation of facts and science to justify the issuance of the EAO in the first place. In fact, the OIG report went as far as to commend EPA for properly conforming to agency guidelines by exercising what the OIG interpreted as their limitless authority under the SDWA, stating, "for the EPA to take and enforce a Section 1431 emergency order, it needs neither proof that contamination has already occurred nor proof that the recipient of the order is responsible for the contamination."
The OIG report was the result of a Congressional request from all six Republican Senators from Region 6 to look into the actions of the EPA region. The request letter's questions were carefully crafted with extensive negotiations with and edits made by the OIG - questions which the OIG subsequently chose largely to ignore. It has set a dangerous precedent in giving EPA carte blanche authority to issue EAOs - no proof necessary - to suspend the operations of any company or individual and forcing them to incur unlimited costs in taking actions deemed necessary by EPA.
On Friday, February 7, 2014, the OIG announced a plan to conduct a review on "EPA's and States' ability to manage potential threats to water resources from hydraulic fracturing." Despite the OIG's inability to carry out their own stated mission of conducting "independent oversight of the programs and operations of the Environmental Protection Agency" in order to "prevent and detect fraud, waste, and abuse," they have seemingly taken on a new investigation that is both outside the scope of their authorities as well as their expertise. The OIG is greatly outstepping its bounds in reviewing States' regulatory policies for what one can only glean is to further justify EPA's political agenda aimed at federal control of hydraulic fracturing despite any legitimate need to do so.
OIG Ignores Leads on EPA's Email Follies
In 2013, several Congressional Committees, including the Senate Committee on Environment and Public Works (EPW), had expressed serious concerns that the actions of several high ranking EPA officials may have violated transparency statutes, namely the Federal Records Act (FRA) and the Freedom of Information Act (FOIA), by using personal and alias email accounts to conduct agency business. Both statutes were put in place to help ordinary Americans keep tabs on their government, but require the cooperation and diligence of the Administrative Branch to ensure that responsive records are captured and preserved.
Prompted by the discovery that EPA officials had violated the Agency's internal email protocol, the EPA OIG released a report entitled, Congressionally Requested Inquiry into the EPA's Use of Private and Alias Email Accounts on September 26, 2013. According to the report, the OIG "found no evidence that the EPA used, promoted or encouraged the use of private ‘non-governmental' email accounts to circumvent records management." Since that finding the Committee has learned that at least these individuals were using private email accounts:
A number of factors led to the OIG's faulty conclusion. In the course of writing the report, OIG relied solely on interviews of EPA officials willing to cooperate, and never examined in any way, actual staff emails. Additionally, according to the OIG, they have no authority to review the use of private email accounts for agency business beyond asking the employee if they had ever improperly used a private email account, and did not follow-up or fact-check. Moreover, investigators never spoke to former EPA Administrator Lisa Jackson or former General Counsel Scott Fulton, two senior level officials who played central roles in the controversy, nor did the OIG examine or compare the practice of using alias accounts by Administrator Jackson and past Administrators. The OIG also did not review the emails showing that EPA officials were inappropriately using their email accounts that were produced in response to multiple FOIA requests.
In September 2013, EPW Republicans released a report entitled, "A Call for Sunshine: EPA's FOIA and Federal Records Failures Uncovered," which provides a detailed accounting of EPA's inappropriate email practices. Additionally, the Committee has confirmed that Region 9 Administrator Jared Blumenfeld used his private email account to conduct agency business, although during his interview with the IG, he lied and said that he had not. It does not appear that Blumenfeld has been held accountable by the Agency for lying to the IG.
OIG Turns Blind Eye to Crony Clean Air Advisors
In 2011, former EPW Ranking Member Senator James Inhofe (R-Okla.) asked the EPA OIG to evaluate EPA's management of the Clean Air Scientific Advisory Committee (CASAC), the Advisory Council on Clean Air Compliance Analysis (Council), and the peer review process in order to address concerns of a lack of impartiality, failure to balance perspectives, failure to rotate members, and financial conflicts of interest. In 2013, the OIG concluded its audit and released the report entitled, "EPA Can Better Document Resolution of Ethics and Partiality Concerns in Managing Clean Air Federal Advisory Committees."
During the course of the audit, OIG reviewed only 37% of the CASAC and Council member files from 1998 to 2012, reviewing only 18% "in depth," without disclosing their selection process. They also admitted that they relied solely on members' financial disclosure forms to assess impartiality concerns and did not attempt to conduct any independent research, including search engines (Lexis, Google, etc.). Even though 72% of CASAC and Council members from 2006 to the present have received EPA and related multi-agency research grants, OIG stated that members with research grants did not present a conflict of interest, and did not follow up on that line of inquiry. Additionally, the OIG used a narrow scope to examine the membership balance, ignoring whether panels were balanced based on consideration of individual members' independence or impartiality concerns, viewpoints, receipt of research grants, or membership tenure.
Unfortunately, the report refrained from making specific recommendations to address concerns of impartiality, potential conflicts of interest, and membership balance, missing the opportunity to reform EPA's policies for the scientific community responsible for providing advice on some of the Agency's most aggressive regulations. In the case of addressing EPA procedures for when financial conflict of interest disclosures were blatantly violated, OIG recommended that EPA instruct employees of the proper procedures and nothing more. OIG kept their recommendations broad and to a minimum, including one that EPA could better document the membership selection process. While EPA's current process is not fully transparent, nor does it provide assurance of neutrality, OIG failed to specify what EPA could do to address these weaknesses.
Additional Concerns with OIG
On August 27, 2013, Sen. David Vitter (R-La.) requested the OIG "immediately launch an investigation of the Agency's policies and processes that facilitated John Beale's fraud, and to make recommendations to ensure that this does not happen again." During the course of this investigation, the OIG changed its protocol in executing their responsibilities to Congress. OIG protocol dictate that in response to a Congressional request, the report or work product is produced to the requestor before it is available to the public. However, the OIG cancelled their requested briefing with EPW Republican staff right before their reports on Beale would be released to the public, thus abandoning its protocols.
In a January 14, 2014, letter the current EPA IG, Arthur Elkins, has since confirmed that his office's actions were problematic and stated, "In light of the OIGs obligations under the IG Act to be open and transparent - and given the issues raised by recent reports - the OIG is revisiting practicality and fairness issues as they relate to the sequence currently dictated by our protocol. Should we decide to repeal or revise that protocol, we will publically announce the change."
 Press Release, Envtl. Prot. Agency, EPA Issues an Imminent and Substantial Endangerment Order to Protect Drinking Water in Southern Parker County (Dec. 7, 2010), available at http://yosemite.epa.gov/opa/admpress.nsf/ab2d81eb088f4a7e85257359003f5339/713f73b4bdceb126852577f3002cb6fb!OpenDocument.
 Office of Inspector Gen., Envtl. Prot. Agency, Report No. 14-P-0044 Response to Congressional Inquiry Regarding the EPA's Emergency Order to the Range Resources Gas Drilling Company (Dec. 20, 2013), available at http://www.epa.gov/oig/reports/2014/20131220-14-P-0044.pdf.
 Memorandum from Dan Engelberg, Dir., Water Issues, Office of Program Evaluation, Office of Inspector Gen., Envtl. Prot. Agency, to Nancy Stoner, Acting Assistant Adm'r for Water, Envtl. Prot. Agency (Feb. 5, 2014), available at http://www.epa.gov/oig/reports/notificationMemos/newStarts_02-05-14_HyraulicFracturing.pdf.
 Minority Office, S. Comm. on Env't & Pub. Works, A Call for Sunshine: EPA's FOIA and Fed. Records Failures Uncovered 9-15 (Sept. 9, 2013).
 Memorandum from Melissa M. Heist, Assistant Inspector General for Audit to EPA Administrator (Dec. 13, 2012) available at http://www.epa.gov/oig/reports/notificationMemos/newStarts_12-13-2012_Audit_of_Records_Managements_Practices.pdf
 Office of Inspector Gen., Envtl. Prot. Agency, Report No. 13-P-0433, Congressionally Requested Inquiry into the EPA's Use of Private and Alias Email Accounts (Sept. 26, 2013).
 Office of Inspector Gen., Envtl. Prot. Agency, Report No. 13-P-0433, Congressionally Requested Inquiry into the EPA's Use of Private and Alias Email Accounts: At a Glance (Sept. 26, 2013), available at http://www.epa.gov/oig/reports/2013/20130926-13-P-0433_glance.pdf.
 Minority Office, S. Comm. on Env't & Pub. Works, A Call for Sunshine: EPA's FOIA and Fed. Records Failures Uncovered 12-14 (Sept. 9, 2013); Briefing for Staff of S. Comm. on Env't & Pub. Works (Jan. 24, 2014).
 Briefing for Staff of S. Comm. on Env't & Pub. Works (Jan. 24, 2014).
 E-mail from Michael Goode, Project Manager, Office of Audit, Office of Inspector Gen. Envtl. Prot. Agency, to Lisa Jackson, Former Adm'r, Envtl. Prot. Agency (Apr. 16, 2013 04:32 PM); E-mail from Michael Goode, Project Manager, Office of Audit, Office of Inspector Gen. Envtl. Prot. Agency, to Lisa Jackson, Former Adm'r, Envtl. Prot. Agency (May 2, 2013 03:06 PM); E-mail from Michael Goode, Project Manager, Office of Audit, Office of Inspector Gen. Envtl. Prot. Agency, to Scott Fulton, Former Gen. Counsel, Envtl. Prot. Agency (Apr. 11, 2013 05:37 PM); E-mail from Michael Goode, Project Manager, Office of Audit, Office of Inspector Gen. Envtl. Prot. Agency, to Scott Fulton, Former Gen. Counsel, Envtl. Prot. Agency (May 2, 2013 03:01 PM); Briefing for Staff of S. Comm. on Env't & Pub. Works (Jan. 24, 2014).
 Minority Office, S. Comm. on Env't & Pub. Works, A Call for Sunshine: EPA's FOIA and Fed. Records Failures Uncovered 9-15 (Sept. 9, 2013) (citing letter from Jared Blumenfeld, Reg'l Adm'r, U.S. Envtl Prot. Agency Region 9, to Hon. David Vitter Ranking Member S. Comm. on Env't & Pub. Works (Sept. 6, 2013)).
 Letter from the Hon. David Vitter, Ranking Member, Senate Env. &Public Wks Com., to the Hon. Arthur Elkins, Inspector Gen., Envtl. Prot. Agency (Aug. 27, 2013).
 Letter from Arthur Elkins, Inspector Gen., Envtl. Prot. Agency, to Hon. David Vitter, Ranking Member, S. Comm. on Envt. & Pub. Works (Jan 14, 2014).