Is it Necessary to Clarify or Strengthen the Inspector General Act of 1978?


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U.S. ENVIRONMENTAL PROTECTION AGENCY

OFFICE OF INSPECTOR GENERAL

Is it Necessary to Clarify or Strengthen the
Inspector General Act of 1978?

Statement of Arthur A. El kins Jr.

Inspector General

Before the Committee on Oversight and Government Reform
U.S. House of Representatives

September 10,2014

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Statement of
Arthur A. Elkins Jr.

Inspector General
Office of Inspector General
U.S. Environmental Protection Agency
Before the

Committee on Oversight and Government Reform
U.S. House of Representatives
September 10, 2014

Good morning, Chairman Issa, Ranking Member Cummings and members of the committee.
I am Arthur Elkins, Inspector General (IG) at the U.S. Environmental Protection Agency (EPA).
Thank you for inviting me to appear before you today. I appreciate the opportunity to address
how well the Inspector General Act is serving the taxpayers of this country in accomplishing
goals that Congress set in passing it more than 35 years ago. As an Inspector General entrusted
with executing the authorities provided for in the Act, the corollary question for me is whether
the Act needs to be strengthened or clarified in any way. And I welcome the opportunity to
publicly commend the expertise, dedication, diligence and professionalism of the Office of
Inspector General (OIG) staff—not only at the EPA, but across the federal government—who
work hard each day to carry out this very important mission.

Overview of the EPA OIG

The EPA OIG is an independent and objective office that is uniquely charged with conducting
investigations and audits related to programs and operations not only at the EPA but at the
U.S. Chemical Safety and Hazard Investigation Board (CSB). The EPA OIG operates with a
separate budget and decision-making authority, and neither agency's senior leaders may prohibit,
prevent or obstruct us from conducting our work.

At the request of the committee, I will testify on the importance of an OIG's access to agency
records, and how this OIG's access has been limited by both the EPA and the CSB. Then, I will
summarize the letter to Congress signed by 47 IGs, including me, regarding the denial of access.
Lastly, I will offer my opinion as to whether there is a need to strengthen or clarify the IG Act.

CSB Denies Access to the OIG

Several recent events inform my personal response to the questions posed today. First, as the
committee is aware, for more than a year, this OIG was confronted with a denial of access by the
CSB. The CSB's leadership asserted that the denial was based on attorney/client privilege.
However, we countered that such denial violated the IG Act, specifically Section 6(a)(1).

Our current issue with the CSB began in February 2013 when we received a complaint alleging
that CSB officials were using nongovernmental email accounts to conduct official business. In

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response, we opened an investigation. In May 2013, the OIG requested records of
communications of the CSB for a specified time period pertaining to official CSB matters sent
by Chairman Rafael Moure-Eraso via nongovernmental email accounts. A private attorney hired
by the CSB in connection with the whistleblower complaints sent us only some of the records,
and some of those were heavily redacted.

In July and August 2013, the OIG made repeated requests for a full and complete production of
the requested records. Although the CSB acknowledged having the records, it still refused to
produce them.

When that impairment of my office's ability to provide oversight of the CSB continued—despite
lengthy, time-consuming efforts by my staff—we resorted to the rarely invoked "Seven Day
Letter." On September 5, 2013, we issued a Seven Day Letter to CSB Chairman Moure-Eraso,
which required him to transmit the OIG's letter and the CSB's response to the appropriate
congressional committees and subcommittees within seven days.

This committee held a hearing on the Seven Day Letter and related issues on June 19, 2014,
during which I provided testimony about these matters. At that hearing, Chairman Issa instructed
that the CSB turn over the documents to the OIG within a week. The CSB produced several sets
of documents to the OIG since the hearing. We have reviewed the documents to determine
whether they were responsive to the request, whether the response was complete, and whether
the documents indicated the existence of and need to request additional documents from CSB. At
this point, the OIG concludes that CSB has substantially, but not fully, complied with our
document request; however, the evidence we have gathered demonstrates that there are
additional documents within the scope of our request that CSB officials have not provided to the
OIG.

The evidence that we have been able to gather and review demonstrates that senior CSB
officials, including Chairman Moure-Eraso, have used non-government email accounts to
conduct official business on significant CSB issues.

EPA Denies Access to the OIG

The second matter I will discuss is how the EPA's Office of Homeland Security (OHS), which is
in the Immediate Office of the Administrator, continues to impede the investigations of this OIG.
My Assistant IG for Investigations, Patrick Sullivan, provided detailed testimony on this subject
before this committee on May 7, 2014. He noted that while the OHS serves as the agency's
internal liaison for the intelligence community on homeland security matters, it has no statutory
authority to conduct investigations and no law enforcement authority.

I would like to remind this committee that the OHS' investigation of John C. Beale, who
infamously defrauded the EPA under the guise of being a Central Intelligence Agency operative,
seriously compromised the EPA OIG's later investigative interviews with Mr. Beale. Mr.
Sullivan testified, "Because OHS continues to block my office's access to information essential
to the OIG's work, I cannot assure the committee that we are doing everything possible to root

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out other 'John Beales' who may be at the EPA or other malfeasance of similar magnitude." That
is still the case.

During the May hearing, Mr. Sullivan also highlighted how OHS' denial of access to information
has impeded the EPA OIG's ability to:

• Investigate threats against EPA employees and facilities.

• Conduct employee misconduct investigations.

• Investigate computer intrusions.

While there are multiple facets to this problem, the crux is this: The EPA believes that there is a
category of activity that the EPA defines as "intelligence" to which the OIG may have access
only subject to the EPA's granting of permission. EPA Administrator Gina McCarthy has given
me a "Procedures" memorandum that is to govern the "handling" of matters between OHS and
the OIG. That memo provides that, upon receipt of "intelligence," OHS will provide that
information to the OIG "to the maximum extent allowable by law," with any such limitations on
what might or might not be allowed by law to be determined by the EPA in accordance with
advice and counsel from the EPA's Office of General Counsel. That, as is obvious, does not give
the OIG access to "all" information "available" to the agency, as required by Section 6(a)(1) of
the IG Act. Rather, it purports to preclude the OIG from full access to EPA information.

There are no "special needs", as referenced in the Procedures memo for national security matters
and intelligence information other than required handling protocols. But, if an OIG member has
the requisite security clearance, and is viewing or discussing the matters in an appropriate
facility, there is no legal basis that allows the EPA or a unit of the EPA to preclude OIG access
based on a "special need" for that program area. At intelligence community agencies, essentially
all program areas involve intelligence and their respective OIG has access to all such program
areas. At the EPA, that includes the OHS and its programmatic functions.

The committee has taken an on-going interest in this situation with OHS, and you have asked me
to keep you informed. This impairment was ongoing when I arrived four years ago, and is still
not resolved to this day.

Forty-Seven IGs Notify Congress about Denial of Access

I recently joined with 46 other federal IGs in writing a letter on August 5, 2014, to this
committee, as well as other congressional members, to discuss more broadly the troubling
push-back many of us have been seeing from our respective agencies denying us mandated
access to agency employees and records. The letter provided examples of the obstacles faced by
other IGs besides myself, including those at the Peace Corps and the U.S. Department of Justice
(DOJ). Specifically, it mentioned how the agencies construed other statutes and laws applicable
to privilege to circumvent our express authorization contained in the IG Act.

While the challenges faced by the three IGs were highlighted in the letter, by no means were
such restrictions only limited to them. In fact, other IGs have also faced similar obstacles to their

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mission. Besides claiming some highly tenuous rationale to trump the clear mandate of the IG
Act, an agency will sometimes impose burdensome administrative conditions on access. Further,
we noted that even when the IGs were ultimately able to resolve these issues with agency
management, the negotiation utilizes a considerable amount of the OIG's resources and diverts
the OIG from substantive oversight activities. Indeed, the letter emphasizes that agency actions
that limit, condition, or delay access thus have profoundly negative consequences for our work—
they make us less effective, encourage other agencies to take similar actions, and erode the
morale of the dedicated professionals that make up our staffs.

As I stated earlier in my testimony, Section 6(a)(1) of the IG Act provides for the IG's complete
and timely access to all agency materials and data. The letter reiterates that fact and also reminds
Congress that limiting access risks leaving the agencies insulated from scrutiny and vulnerable to
mismanagement and misconduct. In that letter, we asked Congress for a strong reaffirmation of
the original and still existing congressional intent that OIGs have unfettered access to all agency
information—coupled with the use of all available powers to enforce such access when agencies
refuse to comply—to assist IGs in obtaining prompt and complete agency cooperation.

Does the IG Act Need to Be Strengthened or Clarified?

In short, Mr. Chairman, the questions about whether the IG Act is accomplishing Congress'
goals, and whether the IG Act needs strengthening or clarification, are not hypothetical for me.
They are questions with real-world impact on my ability to carry out my mandated functions—
in situations I have faced over an extended period of time and continue to face today.

You might think, therefore, that I would say without reservation that the IG Act requires some
enhancements on IG access and agency cooperation. However, I want all of us—IGs and
Congress included—to be very careful about what I am saying and am not saying on this issue
that is the crux of today's hearing: The IG Act as written is quite strong and quite clear. It
provides access to all agency information and all agency employees. There are no exceptions—
not for material that an agency asserts cannot be further released outside of the OIG once the
OIG does receive it, and not for some piece of agency activity that might happen to involve
classified information. No courts, no congressional committees, and no opinions from the DOJ's
Office of Legal Counsel have given any cause for concern that the requirement for access to "all"
information means anything other than "all." Even the former EPA Administrator issued a
"cooperation with the OIG" memo in 2009 explicitly recognizing that the OIG has "full and
unrestricted access to personnel, facilities, records ... or other information that is needed by the
OIG to accomplish its mission." Any attempt to clarify or strengthen that authority could only
suggest that it is not already strong and fully encompassing.

The problem that I and my IG colleagues face is in the implementation or enforcement of the
authority we already have. What happens when an agency refuses? In the case of the EPA and its
OHS, we have had over four years of non-cooperation, which resulted in us not finding out about
John Beale as quickly as we should have. It also means that an alleged assault within OHS has
not been investigated for almost a year. In the case of the CSB, it means that we had to resort to a

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Seven Day Letter, followed by an investigation by this committee with substantial investment by
your staff and mine to gain access that should have been given immediately.

I also would like to take this opportunity to remind the committee that another threat to IG
independence is under-funding. The OIG is a very labor-intensive agency. In fact, most of my
budget—about 90 percent—goes toward staffing costs, and the remainder goes toward
administrative costs. Lack of funding leads to fewer personnel to accomplish the mission. A
decrease in staff leads to fewer audits and investigations. It also hampers succession planning, as
senior staff are not replaced following retirements due to a lack of funds.

Conclusion

The IG Act hinges on the cooperation of the agency with its IG. If there is no cooperation, the
work of the OIG is stifled. In that circumstance, the American taxpayers, the Congress and the
agency will not receive the full benefit of an unimpeded, objective review of the nation's
investment in the programs and operations of an agency. The result is that the taxpayers cannot
have confidence that their investment is being used as intended.

I therefore urge this committee to look at enforcement mechanisms for the access and
cooperation already required. The standard is fine; the ability to ignore the standard without
consequence is the problem.

We will be happy to work with your staff—in concert with the Legislation Committee of the
Council of the Inspectors General on Integrity and Efficiency—on devising an array of tools and
remedies.

Mr. Chairman, as you have demonstrated repeatedly, this committee and the federal IGs are
partners in providing oversight of agency activities and protecting taxpayers' investment. For
whatever reason, many of our IGs have been encountering strong and continued push-back on
our authority to provide mandated oversight. I believe Congress can send a strong and needed
message, through legislative enhancements and other means, that such impairment will not be
tolerated. In conclusion, I would like to reaffirm the OIG's commitment to add value and assist
the EPA in accomplishing its mission of safeguarding the health of the American people and
protecting the environment. We take very seriously our mandate to promote economy, efficiency
and effectiveness; and to prevent and detect fraud, waste and abuse through independent
oversight of the EPA's programs and operations.

Mr. Chairman, this concludes my prepared statement. I will be pleased to answer any questions
you or committee members may have.

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Biography of Inspector General Arthur A. Elkins, Jr.

Arthur A. Elkins, Jr. became Inspector General of the U.S. Environmental
Protection Agency (EPA) on June 25, 2010. Before his appointment, Mr.
Elkins served as Associate General Counsel within EPA's Office of
General Counsel. While in that position, he supervised the delivery of
legal counsel, opinions, litigation support, and other legal services for the
Office of General Counsel's Information Law Practice, Employment Law
Practice, and Intellectual Property Law Practice.

Previously, Mr. Elkins served as the Chief Legal Officer and General
Counsel for the Court Services and Offender Supervision Agency, an
independent federal executive branch agency responsible for pretrial
services and adult parole and probation community offender supervision;
Counsel to the inspector General of the National Science Foundation;
and Counsel within the Department of Defense, Defense Office of Hearings and Appeals.

Prior to joining the Federal Government, Mr. Elkins served as an Assistant Prosecuting Attorney
in the Ohio Cuyahoga County Prosecutor's Office and as an Assistant Public Defender in the
Ohio Cuyahoga County Public Defender's Office.

Mr. Elkins earned a Bachelor degree in social sciences from Thomas A. Edison State College; a
Master of Business Administration degree from Baldwin-Wallace College; a Juris Doctor degree
from Cleveland-Marshall College of Law, Cleveland State University; and a Master of Laws in
Law and Government from Washington College of Law, The American University.

Mr. Elkins is a member of the bar in Ohio, District of Columbia, United States District Court for
Northern Ohio, the United States Court of Appeals for the Sixth Circuit, and the Supreme Court of
the United States of America.

Mr. Elkins is the recipient of the Council of Counsels to the Inspector Generals Leadership Award,
Federal Executive Council on Integrity and Efficiency Award for Excellence in Investigations, and
the National Science Foundation Office of Inspector General Commendable Service Award.

Mr. Elkins is the proud father of three children and resides in Bowie, Maryland, with his wife, Gail.

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