Whacked By Whitman

Environmental Protection Agency Administrator Christine Todd Whitman–whom Secretary of State Colin Powell once called “wind dummy” because of the way she gets blown around at cabinet meetings–finally got her feet on the ground and made a decision. She got rid of Bob Martin. For more than a decade, Martin served as the EPA’s independent ombudsman, the public’s last line of defense against bad decisions made by the nation’s environmental bureaucracy. It was Martin who in 1992 put a halt to the EPA’s plan to incinerate 245,000 tons of toxic sludge that Monsanto and others had left in a pit situated between an elementary school and a residential subdivision, about 20 miles from downtown Houston. The EPA was just 10 days away from beginning incineration at the area, known as the Brio Site, when Martin’s report–which revealed, among other alarming findings, that the agency had not even been aware that mercury was in the pits–shut the project down.

There will be no more last-minute rescues by Martin. A months-long effort by Whitman to rein in the power of the ombudsman ended in an April 22 raid on Martin’s offices, followed closely by his resignation. This may be more than a case of an industry-friendly Republican appointee undercutting the EPA’s enforcement authority, however. At the time of his departure, Martin was investigating a Superfund site owned by a company closely connected to John Whitman, Christine Todd Whitman’s husband.

For months Whitman had been trying to muscle Martin into the inspector general’s office, an investigating arm of the agency that answers to Whitman herself. But in January he went to court and got a temporary restraining order to keep him out of Whitman’s line of authority. In April, the clock ran out. Federal district Judge Richard Roberts refused to extend the order, ruling that Martin hadn’t exhausted all his administrative remedies. As Martin returned to the administrative process, Whitman made her move. While Martin was out of town on agency business on April 22, Whitman had her inspector general seize Martin’s files and computers and remove the telephones from his office. To ensure that Martin couldn’t soldier on with his cell phone and laptop, the raiders from the IG’s office changed the locks on the ombudsman’s office door.

Rather than report as ordered to his new assignment–answering a hotline (at the same rate of pay, $118,000) in the inspector general’s office–he submitted his letter of resignation. Now under the supervision of the inspector general, the ombudsman’s office no longer has its independence. That means the new ombudsman will not control the office’s budget and staff. The moral authority derived from that independence will be gone as well. Martin said that he simply could not surrender the independence of the office. (“Never, never, never, never,” was his exact quote.) “I would not accede to that, so they had to resort to a bold power move.”

Martin is a Makah Indian from Washington State, hired by the EPA at the end of the Bush I Administration. Early on, he got a sense of how the agency worked, Martin said last month in an interview at a restaurant close to the EPA offices in Washington, D.C. Two weeks into his job, he was in Pennsylvania responding to complaints about an EPA clean-up. He was disturbed by the agency’s lack of concern for the local community. “I used to think that the government mistreated only Indians,” he said at the time. “I now know they mistreat all Americans.” The day after that line made the papers, Martin was visited by an EPA official who handed him a letter of retraction to sign. “I told him that was exactly what I said. I can’t retract it.” His refusal to sign the letter was a small gesture. But it reaffirmed the independence of the ombudsman’s office, which Congress established in 1985.

“There are things you can do when you have power,” Martin’s longtime investigator Hugh Kaufman said, “but you don’t do them because of the harm they can cause a year, two years, or five years down the line.” Kaufman has been an EPA employee since Richard Nixon was president, and his whistleblowing while Ronald Reagan tried to dismantle the Superfund program sent one EPA official to jail. According to Kaufman, Whitman’s restructuring of the ombudsman’s office is precisely the sort of act a public official with power can–but shouldn’t–do. The federal law that established the Superfund also established that once the EPA approves a clean-up plan for a contaminated site, the plan cannot be challenged for 10 years. “It’s one of the very rare instances in this country where a decision is not subject to judicial review,” Kaufman explained.

The sole lever on the process is–or was–the independent office of the national ombudsman. For that reason, the constituent service calls the ombudsman answers are often from Congressmen and senators who realize they cannot alter the course of a clean-up plan gone bad. Conservative bete noir Helen Chenoweth, then a Congresswoman from Idaho, called Martin into that state after it became evident that an EPA clean-up of a mine site was doing more harm than good. It was Wayne Allard, the Republican U.S. Senator from Colorado, who contacted Martin about the Shattuck Superfund site–the clean-up he was investigating when Whitman seized his files.

Martin found the same contempt for the people living around the Shattuck site, situated a few miles from downtown Denver, that he had seen in South Houston a decade earlier. Martin characterized most of the EPA’s poor decisions as bureaucratic mistakes. But in Denver, the EPA held secret meetings with Shattuck’s ownership and agreed to leave tons of radioactive waste in the middle of a working-class neighborhood. Shattuck was one of a dozen Denver Superfund sites where radioactive metals had been processed. Yet it was the only site where the EPA agreed to leave the radioactive waste on site.

Martin issued a report, which is the only final action the ombudsman’s office can take, recommending that the material be moved to a radioactive waste disposal site in Utah. As he had done when he forced the agency to do the right thing in Houston, he prevailed. The radioactive waste was moved out of the Overland Park subdivision, a real victory for neighborhood activists.

Then Martin began to question Whitman’s possible conflict of interest. From 1972 to 1987, Christine Whitman’s husband, John Whitman, worked for Citigroup, the company that now owns the Shattuck site. According to court filings Martin made in his fight to keep his job (as well as a related story in the Denver Post), John Whitman still holds as much as $250,000 in Citi stock and works for a venture group spun out of Citigroup Capital. He also received a substantial bonus from Citigroup last year.

Citigroup, Martin alleges in Martin v. the EPA et al., is getting a sweet deal on the clean-up. The company will pay $7 million of the estimated $35 million cost to remove soil contaminated by a half-century of processing radium, as well as chemicals that contained uranium, molybdenum, and rhenium. Martin estimates that the cost will be far greater than $35 million. In the suit he filed he alleges that the clean-up agreement the EPA approved could save Citigroup from $30 million to $100 million. Citi’s gain will be the taxpayers’ loss.

Before Martin resigned, FBI agents had already visited his office to inquire about the conflict of interest charges. When they finally came to review Martin’s files, it was too late. Whitman had already taken them. “I told them they would have to go to the inspector general’s office and ask for them,” Kaufman said.

Ten years ago a call from Marie Flickinger in Houston dragged a reluctant ombudsman into the hottest sludge pit in the nation’s Bermuda Triangle of Superfund sites. (Brio is a thirty minute drive from the French Limited Site, the Sikes Disposal Pits, and the Highland Acid Pit.) Flickinger is a maverick publisher who never quite understood that the function of a small-town weekly is to comfort the comfortable while they afflict the afflicted. When her campaign against the EPA’s plan to clean up the Brio Superfund site was losing momentum and her South Belt-Ellington Leader advertisers were grousing about the “bad publicity” the paper was creating, Flickinger called Bob Martin. She had already struck out with his predecessor and tossed his phone number in the trash. But she arrived at the Leader one morning, and lying in front of the office dumpster was a slip of paper with the EPA ombudsman’s phone number scrawled on it. She decided to give it one more try. Bob Martin answered the phone.

Flickinger said that without Martin, on the job for only a few weeks when Flickinger called him, there was no way to stop an EPA plan to burn vinyl chloride, dioxins, PCBs and a host of other toxins catalogued as “tentatively identified compounds.” There was also mercury, which the agency didn’t know was in the pits until Flickinger put Martin onto a Monsanto paper trail that led to a mercury waste stream. “You can’t burn mercury,” Flickinger said. “You change it to a gas, but you don’t destroy it.”

“They were going to do this in the middle of a community of 70,000 people, near a hospital, near schools. We were going to have to close the college [San Jacinto Junior College] down,” Flickinger said. “Waste Management had built an incinerator. And when Bob issued his report, that sucker was ten days from starting to burn waste. And they didn’t even know what was in the waste they were going to burn.”

Today, the Brio Site is sealed off behind a 50-foot-deep concrete wall, covered with a gas containment layer, and studded with air-monitoring devices. Standing water is pumped and treated, in an attempt to lower the volume of contaminants in the bodies of fish caught in Clear Creek–the highest trace amounts of volatile substances ever detected in fish tested in the U.S. The incinerator is dismantled. A public school and 677 homes that were also contaminated have been abandoned.

“In nine years here, I’ve never heard anyone at the agency say ‘We screwed up,'” Martin said on the day after he submitted his letter of resignation. “But the record shows that they do. Without judicial review of Superfund decisions, the American people live in a chasm between the EPA’s belief that it can do no wrong and those bad decisions. The ombudsman’s office occupied that chasm. Now, that office is no more.”

Former Observer editor Louis Dubose is the author with Molly Ivins of Shrub: The Short But Happy Political Life of George W. Bush.