Working during a shutdown — ‘It’s just weird’

By Kevin Bogardus | 01/14/2019 01:20 PM EST

A small number of EPA employees are still working away during the partial government shutdown that closed the agency two weeks ago.

EPA headquarters in Washington.

EPA headquarters in Washington. Robin Bravender/File/E&E News

A small number of EPA employees are still working away during the partial government shutdown that closed the agency two weeks ago.

Democrats on Capitol Hill and union officials have begun to dig into who those EPA employees — deemed "excepted" under the agency’s contingency plan — and what they are doing during the shutdown. Now, interviews as well as documents offer some clues on who makes up the agency’s skeleton crew until the budget impasse is resolved.

On its shutdown website, EPA posted a list of senior career officials at the agency. The names highlighted in yellow are considered "excepted," meaning they are working during the funding lapse at the agency.


Those officials are there to help answer ethics questions from furloughed employees, including those who are seeking outside employment to help pay the bills during the shutdown. Included among those officials listed as "excepted" are senior managers from EPA’s program offices — like its air, chemicals, enforcement, research and water offices — as well as its 10 regional offices across the country.

The list, posted online for ethics purposes, is not comprehensive and shows only a small percentage of EPA’s "excepted" employees.

EPA’s shutdown plan says the agency has 812 "excepted" employees. That includes six Senate-confirmed officials, another 12 considered necessary to the discharge of the president’s consitutional duties, and 794 needed to protect life and property.

In addition, EPA has 53 public health service officers deemed "exempted" from furlough. Those individuals come from the U.S. Public Health Service and are assigned to work at EPA.

Meanwhile, roughly 13,000 EPA employees have been furloughed during the shutdown.

Working at the agency with the majority of its workforce sent home can be strange. EPA veterans of the last lengthy government shutdown in 2013 say it was a lonely place.

"It’s just weird. The phone doesn’t ring. No one is there. You can’t do anything. You are basically there just in case there is a genuine emergency," said Stan Meiburg, who was the acting regional administrator for EPA Region 4 at the time.

Others also remember it as a bizarre time at the agency.

"Almost no one was at EPA during the shutdown. Just a handful — mostly the Senate-confirmed people, and some people working on cases that required immediate action to protect public health," said an Obama-era EPA official.

"I answered the phone and responded to questions from people outside the agency, explaining why no one was here to address their problem," the official said.

Bob Kavlock, who retired from EPA in 2017 after 40 years at the agency, including as acting head of EPA’s research office, remembers being furloughed during the 2013 shutdown. "We had very strict policies about who was allowed into the building to work," he said.

"Those allowed in were only to maintain ongoing experiments or to keep cell cultures alive. There was no starting of new experiments. Those who could come in, had to do the minimal amount of work necessary and then had to leave," Kavlock said.

He added that shutdowns "are terrible for morale" and have "long-term impacts" on EPA’s research programs.

Meiburg, now a sustainable studies professor at Wake Forest University, said the agency tried to have fewer rather than more people at work. He remembers being on a conference call with other EPA senior officials during that shutdown, but he tried to refrain from internal email.

"I didn’t want to create any sense of obligation for staff that they needed to respond to the boss," said Meiburg, who focused on preparations for a disaster.

"You compile your list of who would be needed to respond to an emergency and if an emergency does happen, you can deem them as ‘excepted’ and they can come back to work," he said.

Cleaning up after wildfires

EPA union officials said there are agency staff helping with emergency response. Some of the agency’s regional offices have sent employees, considered "excepted" from the shutdown, to help with cleanup from the California wildfires that blazed last year.

Dave Christenson, vice president of American Federation of Government Employees Local 3607, which represents EPA Region 8 employees, said about 40 to 50 employees from EPA are still helping to clean up from that disaster. EPA’s role is to clear damaged or destroyed buildings of hazardous materials, like car batteries and propane tanks, he said.

"About a half-dozen of them are from the Denver office," Christenson said. "It’s ‘excepted,’ and we’re doing what the government does, which is help people who are in need."

Mike Mikulka, president of AFGE Local 704, which represents EPA Region 5 employees, said staff from there also helped with cleanup from the California wildfire. Back in the Chicago office, some functions are still being manned.

"We have staff in the office in case of an environmental emergency," Mikulka said. "They are manning the spill line and would go out in the field to respond to an emergency such as an oil spill, fish kill, train derailment, tanker accident which involved hazardous chemicals."

At EPA offices across the country, other emergency response personnel and investigative agents have been spotted during the shutdown, according to union officials.

"A couple [Criminal Investigation Division] agents were seen, as well as a couple on-scene coordinators," said Jeanne Schulze, president of AFGE Local 1003, which represents EPA Region 6 employees. "That’s all I know."

Doug Parker, who served as director of EPA’s Criminal Investigation Division, said criminal investigators who were working cases in the field and a small number of special agents who were managers were deemed "excepted" as law enforcement officers during the 2013 shutdown.

"Shutdowns at the EPA are pretty much a ghost town," said Parker, now president of E&W Strategies. "Very few people on board and working, so the functions of [government] you need to do your job as a criminal investigator are not there — it’s not exactly treading water, but the [criminal] program is not able to work at full speed without its colleagues who are attorneys, forensic scientists or those that provide administrative support."

Information on who is working and doing what during EPA’s shutdown has been hard to come by. Bethany Dreyfus, acting president of AFGE Local 1236, which represents EPA Region 9 employees, said she has tried to find out which employees are "excepted" in the agency’s San Francisco office.

"I will note that for the 2013 shutdown, we had a full list of who would be excepted and why about five days before the shutdown deadline," Dreyfus said.

Hearing prep

Senate Democrats have questioned EPA on who is "excepted" and why during the shutdown — specifically when it comes to who is helping acting Administrator Andrew Wheeler prepare for his confirmation hearing this week.

In a letter last week, Democratic members of the Senate Environment and Public Works Committee asked for the names and titles of those helping with that hearing preparation.

They also noted that five EPA employees had been copied on emails seeking meetings with Democratic senators and the agency’s senior counsel for ethics as well as an EPA notary had helped certify Wheeler’s ethics paperwork (Greenwire, Jan. 11).

EPA has said work in preparing for a congressional hearing is "excepted," considering it’s part of the agency’s constitutional duties. Further, in an email obtained by E&E News, Office of Management and Budget General Counsel Mark Paoletta told EPA General Counsel Matt Leopold that such work was "an excepted activity" during the shutdown.

"First, it falls under the President’s constitutional authority under the Appointments Clause and is necessary for the President’s discharge of such authority," Paoletta said in the email sent Saturday.

"And, second, as the legislative branch has enacted appropriations for FY 2019 and is not subject to the lapse in the appropriations, acting Administrator Wheeler’s participation in the scheduled hearing is necessary for the Congress’s funded function to be effective (and his absence from his own confirmation hearing would significantly damage the Committee’s confirmation hearing), and is therefore necessarily implied to continue during EPA’s lapse in appropriations."

EPA had to deal with congressional hearings during the 2013 shutdown. On the first day of that funding lapse, then-Deputy EPA Administrator Bob Perciasepe appeared before the House Oversight and Government Reform Committee to discuss John Beale, the former EPA official caught impersonating a CIA spy.

A former EPA official said Perciasepe received help from agency staff who were deemed "excepted" to prepare him for the hearing — some of whom were then furloughed after the hearing was over.

The former official remembered when EPA staff left for the hearing, people were still in the building to get their furlough notice, set up out-of-office messages on their phones and email accounts, and shut down their workstations.

"By the time we returned when the hearing was over, they were all gone," said the former official. "It was definitely surreal, especially knowing you had to go home and not come back to work either."

Reporter Maxine Joselow contributed.