FEDERAL AGENCIES

EPA IG's probe 'ethically questionable' -- Chemical Safety Board chairman

U.S. EPA's inspector general asked a Chemical Safety Board attorney to allow "electronic eavesdropping" of his meeting with an Office of Special Counsel lawyer, the board alleges -- one of what the board chairman calls "ethically questionable" efforts to uncover wrongdoing at his agency.

Among documents sent by the board to four congressional committees and obtained by Greenwire is a letter from CSB Chairman Rafael Moure-Eraso to EPA Inspector General Arthur Elkins accusing the IG of conducting "a 'fishing expedition' dealing with numerous issues that go far beyond a reasonable inquiry."

Along with a request for "electronic eavesdropping," the board says, Elkins pressured CSB employees to speak about a "sensitive program" they were not authorized to discuss and questioned the legality of the board contacting an outside expert for legal services.

CSB is an independent agency tasked with investigating chemical accidents and issuing recommendations to regulators. While it's not a part of EPA, the agency's IG has oversight over the board.

The original inquiry, according to Elkins' office, involves suspected wrongdoing by senior CSB officials related to the possible leaked identity of a whistle-blower at the Office of Special Counsel (OSC). The board has denied involvement.

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The EPA inspector general lacks authority to investigate the OSC, but the suspected wrongdoing by CSB officials may have involved obtaining information from someone at that office.

The inquiry became public after CSB refused to comply with an IG document request, citing attorney-client privilege because of the threat of outside litigation related to the matter. That prompted Elkins to take the rare step of sending a "seven-day letter," alerting four congressional committees of the refusal (Greenwire, Oct. 28).

Letters between Moure-Eraso and Elkins over three months show a testy exchange and allegations that the IG was seeking more than correspondence.

In Moure-Eraso's Aug. 7 letter to Elkins, the CSB chairman wrote that his office assumed "that an allegation has been made that the OSC's investigative process has been improperly influenced," then denied that claim.

The requests for communications related to CSB's work with its outside counsel, Peter Broida, the chairman wrote, "illustrate that the IG is literally taking sides with the claimants rather than allowing well-established OSC investigative processes to work their course."

The IG, he added, had made a number of unusual requests, including that board staff members work "in what we believe to be an ethically questionable manner" to "uncover allegedly 'corrupt' OSC staff."

The letter alleges the IG "pressured CSB personnel to discuss information that they were legally bound not to disclose" and asked questions about the board's legislative push to remove Elkins.

In a Sept. 12 letter to staff of four congressional committees, Moure-Eraso says the IG made a "series of increasingly unreasonable demands ... which include requests for disclosure of highly sensitive information."

"This is a distressing state of affairs," he wrote, adding the IG's approach "does not serve to further a workable relationship between our offices."

The EPA Office of Inspector General declined to comment today, saying it could not discuss an ongoing investigation.

In an Aug. 8 response to Moure-Eraso, Elkins doesn't address the board chairman's allegations but reiterates the investigation was "the result of a hotline/whistleblower complaint received by our office that related to the programs and operations of the CSB." Elkins also rebuffs Moure-Eraso's request for a meeting, saying it would be "inappropriate" to meet during the ongoing investigation.

"Once the case is closed, I will be more than happy to meet with you to discuss any lessons learned," Elkins wrote.

Committees promise follow-ups

Elkins' seven-day letter was sent Sept. 5 to four congressional panels: the House Oversight and Government Reform Committee; the House Science, Space and Technology Committee; the Senate Homeland Security and Governmental Affairs Committee; and the Senate Environment and Public Works Committee.

That letter alerted the committees to the document request and CSB's refusal to comply. Committee spokesmen all promised to follow up.

In Moure-Eraso's Sept. 12 letter to the committees, the board chairman says the IG actions were "intruding" into a personnel matter that should be dealt with at OSC and the Equal Employment Opportunity Commission. "To permit the IG to intervene in this matter completely disrupts, and even usurps the role that Congress has assigned to those agencies for the resolution of employment disputes," he wrote.

In his letter to Congress, Moure-Eraso says no CSB employee was denied a change in employment grade or pay raise during any personnel dispute.

The documents provided by the board to committee staff also show CSB questioning whether the IG can compel it to turn over its correspondence with outside counsel.

Elkins said in several letters that the Inspector General Act gives his office the power to seek any documents and correspondence to fulfill its investigations. The law, he says, states his office can have "access to all records, reports, audits, reviews, documents, papers, recommendations or other material" for programs and operations under its jurisdiction. A mandated disclosure to his office, he says, should not result in a waiver of attorney-client privilege.

But CSB maintains that handing over the documents would waive attorney-client privilege and that the IG had no business being in the matter.

The investigation relates to ongoing administrative complaints filed by CSB staff members with OSC and the Equal Employment Opportunity Commission, Moure-Eraso told congressional committees, and could "result in full-blown litigation between the complainants and the CSB in federal court."

CSB maintains, citing outside legal advice, that providing the documents could allow a federal judge to waive the agency's attorney-client privilege and force it to turn over the same documents to plaintiffs if the case reaches court.

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