MARCH 5, 1992

Thank you for inviting me to testify here today. I am required to inform you that although I am employed by the U.S. Environmental Protection Agency (EPA), I am not testifying on behalf of the agency.

I've been with EPA for over twenty years and was, at one time, a Branch Chief in the Hazardous Waste Management Division. Twelve years ago I testified before the Congress on the subject of EPA corruption in the implementation of hazardous waste regulations (see Exhibit 1). Since then I have been consistently harassed by EPA's management and my duties have been gradually whittled away to the point that I have had almost no assigned work in the past three years.

As result, I began to work very closely with grassroots environmental groups around the country who could make use of the knowledge and experience I have gained at EPA at taxpayer expense. Since 1982, I have occasionally been invited by these local non-profit groups to speak about my EPA experiences at public meetings, at governmental hearings and before committees of state legislatures. I did so on my own time, accepting only reimbursement for direct travel expenses and making it clear that I was not representing EPA.

Recently, the government has hit upon a new form of harassment, which comes under the jurisdiction of this committee. On January 17th, 1991, the Office of Government Ethics published an interim rule in the Federal Register. The stated purpose of the rule, in the very first sentence, is to implement the Ethics Reform Act of 1989. Buried deep in the rule is the provision (5CFR 2636.202(b))

An [federal government] employee is prohibited ... from receiving ... travel expenses for speaking ... on subject matter that focuses specifically on ... the responsibilities, policies, and programs of his employing agency.
I reviewed the Ethics Reform Act of 1989 and found nothing in it to support this provision. That this regulation came from the Ethics Reform Act was the first of many lies I would encounter.

When I called the Office of Government Ethics for an explanation they admitted that this provision did not come out of the Ethics Reform Act. They said it was supported by previous policy statements of the Office of Government Ethics going back to 1984. On reading these memoranda I found that I was familiar with the limitations on travel they contained and had consistently complied with them.

They included restrictions against accepting travel expenses to speak to business organizations or trade associations for businesses regulated or potentially regulated by EPA, businesses selling or wishing to sell goods or services to EPA and those wishing to profit financially from knowledge of government intentions. Nothing I read, however, supported this new, all inclusive restriction. This was the second lie.

Last October, when I had to decline speaking engagements (see Exhibit 2) as a result of a warning by my management, I filed a lawsuit challenging this policy in the D.C. Circuit Court with the support of the National Whistleblower Center. The suit was later joined by fellow whistleblower Hugh Kaufman and by a coalition of North Carolina grassroots environmental groups called NC WARN. Many other interested organizations have joined as amicus curie (Exhibit 3) and more are joining every day.

We have since run into more government lies. In its court filings, the Justice Department claimed that the January 1991 rule was merely reiterating a long standing pre-existent policy of the Office of Government Ethics. But we were able to produce many documents by the EPA General Counsel and other top EPA executives (e.g. Exhibit 6) which showed that the opposite policy existed prior to 1991. (Lie number three). In its motion to dismiss, the Justice Department admitted that EPA had the opposite policy prior to 1991, but they claim that EPA was mistaken and had mis-interpreted the policy of the Office of Government Ethics prior to 1991. However, we have shown that EPA has routinely sent copies of the "mistaken" policy documents to the Office of Government Ethics. (Lie number four).

Regardless of whether this policy can be supported by law, an issue which our lawsuit will eventually decide, two important facts remain. One is that this is a new policy. Mr. Kaufman and I have been speaking on EPA related issues on our vacation time and on weekends for over ten years. EPA has been well aware that we have been reimbursed for our travel expenses and EPA's written policy, until this year, has allowed this activity. The fact is the government has changed the policy this year with no visible mandate, from Congress or elsewhere, to change it.

The second fact is that the Office of Government Ethics has tried to make it look like the policy originated with the Ethics Reform Act of 1989 by secreting it in a rule to implement that law. This is fraud. Obviously OGE wanted to create the appearance that this policy originated in Congress.

I believe this policy change originated at a high level in the administration and that it was probably written to silence Mr. Kaufman and me. Let me explain why I think that. Having been a mid-level career civil servant for twenty years, I find it inconceivable that mid-level career civil servants in the Office of Government Ethics would take it on themselves to change government policy with no mandate to do so and hide the change in a rule published in the Federal Register to implement an act of Congress. I believe that this could only have been done if officials of the Office of Government Ethics were told to do it by a higher authority.

Secondly, my attorney, Mr. Stephen Kohn, told me that EPA referred our lawsuit directly to the Justice Department and that the Justice Department told him that the government intends to defend this policy to the hilt, and that it applies to all U.S. government employees, and that the administrator of EPA has no discretion on its implementation. I don't believe that the Justice Department would take such an aggressive stance if the policy merely originated in the Office of Government Ethics or in EPA.

Third, I know of no other persons, outside of Mr. Kaufman and myself, affected by this rule. My attorney, who is a specialist in whistleblower cases, has encountered no other cases. We are in touch with many organizations that deal with controversial issues and to my knowledge no other federal employee has come forward to protest this ruling. We know of no federal agency, outside of EPA, that have felt it necessary to inform its employees of this provision.

While this policy may have changed suddenly, one could see something like this coming for some time. The talks that Mr. Kaufman and I have been invited to give over the years have not only been critical of EPA and other government policy, but have frequently stepped on the toes of some powerful business interests, particularly the commercial hazardous and nuclear waste management industry. Over the years administrators of EPA have received many complaints about remarks we have made from businessmen, congressmen, governors, etc. Two of the more recent ones are included as Exhibits 4 and 5. EPA has always had to reply that while they disapproved of what we were doing, they had no legal basis for stopping us (see Exhibit 6).

In fact, the agency has made many attempts to stop us under various pretexts. Until now, they have all failed. One even backfired on the agency when Assistant Administrator Rita Lavelle ordered the Inspector General to keep Mr. Kaufman under surveillance when he was invited to speak to a group of citizens. This became one of the factors leading to the Congressional hearings into the administration of Anne Gorsuch in 1983, to which Mr. Kaufman provided valuable information(1)

Clearly, frustration has been growing within EPA, the commercial hazardous and nuclear waste management industry, and other elements of state and the federal government. Therefore this latest blow was not unexpected, even if the form it took was not anticipated.

I believe the government has now turned to using the guise of ethics to harass us and control what the public can hear. After all, what is unethical about being reimbursed for travel expenses to carry on a perfectly legal activity? In its brief the Justice Department argued:

The prohibition on using public office for private gain is plainly designed to ensure that federal employees devote themselves solely to the work of the people rather than use their government jobs to advance their private interests. The prohibition against receiving free airline tickets, hotel rooms and meals for non-official speeches from private sources if the subjects of the speech are the programs, policies and responsibilities of the agency is clearly consistent with this laudable objective.
Can we seriously believe that the Justice Department thinks that giving up my vacation time for a coach ticket on USAIR and a night in a room at a budget motel in the boondocks constitutes using public office for private gain? Its amazing that when the deputy to the White House Chief of Staff, barely out of law school, leaves the government to accept $600,000 to lobby for BCCI, the Justice Department does not seem to think that he has used his public office for his private gain (see Exhibit 7).

The Justice Department does not seem to be concerned about EPA employees accepting "free airline tickets, hotel rooms and meals" when they are invited to speak in public meetings in support of the waste management industry as demonstrated in Exhibit 8.

In clear violation of the same rule that prevents Mr. Kaufman and me from accepting travel expenses, Dr. Eric Johnson of the National Institute of Environmental Health Sciences (NIEHS) has received $105,000 to testify on behalf of chemical companies being sued by citizens of Times Beach, Missouri (see Exhibit 9). Yet the Justice Department doesn't think he has used his public office for private gain.

Mammoth examples of conflict of interest go right by them as in the case of William Ruckelshaus as shown in Exhibit 10. Therefore, I cannot believe that the Justice Department or the Administration is really concerned about ethics in government. What then is the real issue?

State and EPA officials, who are being paid by the public, go out to poor rural counties and mislead and deceive the people into believing that the law requires them to have a hazardous waste dump or incinerator which will import toxic wastes from all over America and foreign countries. They tell these people that new industries will rush into their communities and that strict government regulation will protect them. The sad truth for those desperate communities that have bought this line is that EPA's regulations are pathetically weak, enforcement is almost nonexistent and rather than jobs, the communities have gotten disease, depression, and the eventual cost of cleaning up (see Exhibit 11). Meanwhile, the government officials who touted the hazardous waste industry go on to high paying jobs working for them (see Exhibit 12).

When the citizens recognize that they cannot trust their own government, they pass the hat around and run bake sales to raise money to try to get some outside expert advice. So, when I'm asked to attend a public meeting on my vacation with no compensation other than a plane ticket and a motel room, I do it because I'm ashamed of the way EPA treats these people. I believe the public has a right to the knowledge I have gained at their expense.

The real function of these commercial hazardous waste facilities is not to protect the environment but to pass the liability for the wastes from the generator to the public. It is a waste laundering scam of multi-billion dollar proportions. The waste management industry has boomed since it formed a partnership with EPA. Yet in almost every community to which Mr. Kaufman or I have been invited to speak, the citizens have been successful in stopping or delaying some hazardous waste project, at a cost to the waste industry of tens of millions of dollars.

Money, and not ethics, I sincerely believe, is the real issue, and that is why the administration is using such extraordinary chicanery to silence us.

I feel like the company employee who has been invited by a group of stockholders to tell them what I know about how the management is cheating them. The management has succeeded in stopping me from attending the stockholders meeting. The real loser is not me but the stockholders. It is not Mr. Kaufman and myself who are hurt by this policy so much as the rights of the public to know what their government is doing to them.

Furthermore, I believe that if the administration can stop citizens from hearing dissenting opinions today, they can stop Congress and the press from hearing them tomorrow.

I believe Congress is our only hope of redressing this situation. Our case was recently dismissed from DC Circuit Court and we will appeal but I have little confidence in the federal courts as they are packed with judges loyal to this administration

The judge who dismissed our case, Stanley S. Harris, used to be the head of the U.S. Attorney's office in the District of Columbia during the Anne Gorsuch/Rita Lavelle fracas. When EPA administrator Anne Gorsuch was found in contempt of Congress, Harris refused to do as the law requires and bring the case before a grand jury. Instead he turned around and sued the House of Representatives! He claimed he was not acting on orders from the White House, but of course, he wasn't believed and Congress was on the verge of starting impeachment proceedings against him when Anne Gorsuch resigned.

Even though Congressional investigations, with Mr. Kaufman's help, had revealed that dozens of high level EPA appointees had broken the law, when the public pressure got unbearable, Stanley Harris' U.S. Attorney's office selected only one scape goat for sacrificial prosecution, Rita Lavelle. The most politically damaging crime that Congress had uncovered was that Lavelle had met with the Reagan White House to discuss how to dispense billions of dollars of Superfund toxic waste cleanup money to political friends and withhold it from enemies. The U.S. Attorney saw to it that these charges were never brought up at her trial and refused to explain why. Almost immediately, President Reagan appointed Stanley Harris to the federal bench (see Exhibit 13).

In the courts and in the Office of Government Ethics and in the Justice Department we are dealing with apparatchiks. Judge Harris did not get his appointment because of his loyalty to the law but for his loyalty to President Reagan. Stephen Potts did not become the director of the Office of Government Ethics because of his dedication to ethical principals but because of his dedication to President Bush. They are both arms of the same administration.

I would, therefore, urge the committee to enact legislation to correct this situation and to investigate how this rule came to be written, who gave the order, and why it was done in such an underhanded way.

I appreciate that it may be difficult to craft legislation which distinguishes between necessary free expression and abuse of office. But I would think that with all the talent available to Congress that this could be done. However, if it cannot be done, it is far better to save the baby in the dirty bath water than to throw the baby out with the bath water. I would like to see an end to the joy rides of our high living government executives as much as any person, but not at the price of silencing dissent.

After all, no matter how many laws are passed restricting what government officials may do, the polluters are free to go where they want and say what they want. Furthermore, the government can and does get around non-official travel restrictions by making it official and gets around official travel restrictions by using contractors. But there is no way for me to get around non-official travel restrictions without risking dismissal and a ten thousand dollar fine.

If you would like further information, please contact:

Attorney Stephen Kohn, 202-234-4663
William Sanjour, office 202-260-4502, home 703-528-3859
Hugh B. Kaufman, office 703-308-8319. home 202-488-3430
Mrs. Billie Elmore, NC WARN 919-774-9566.

1. The Agency seems to be re-instating this policy. We have recently learned, through papers anonymously leaked to us, that the EPA General Counsel has asked the Inspector General to investigate us as a result of our lawsuit.

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