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Committee Chairs to Wheeler: “Instruct all staff at EPA to cooperate with the OIG”

Dec 12, 2019
Press Release
“You must ensure that Agency employees cooperate with the Inspector General’s independent investigations, as required by law”

Washington, D.C. – Today, House Science, Space, and Technology Committee Chairwoman Eddie Bernice Johnson (D-TX), House Energy and Commerce Committee Chairman Frank Pallone, Jr. (D-NJ) and House Oversight and Reform Committee Chairwoman Carolyn B. Maloney (D-NY) sent a letter to Environmental Protection Agency (EPA) Administrator Andrew Wheeler concerning efforts by the Agency’s leadership to obstruct the work of the EPA Office of the Inspector General (OIG) as detailed through a Seven Day Letter and a recent IG report.

In August 2018, Wheeler issued a message to all EPA employees confirming the Inspector General’s authority and warning that compliance with requests from the OIG is not optional. However, according to a recent OIG report, EPA Chief of Staff Ryan Jackson refused to cooperate in an OIG audit requested by the Committee on Science, Space, and Technology and in an additional administrative investigation.

The Chairs also refuted erroneous claims of legal authority for EPA to obstruct or ignore Inspector General investigations and audits as detailed in a memorandum sent by EPA General Counsel.

“The OIG must remain unencumbered in its ability to conduct independent investigations,” the Committee Chairs wrote. “We are extremely concerned that you are creating an environment at EPA that directly contradicts your 2018 message to employees, is hostile towards accountability, and enables the very waste, fraud, abuse, and mismanagement that Congress has charged the Inspector General to investigate. We urge you to immediately withdraw the Agency’s baseless legal memorandum and instruct all staff at EPA to cooperate with the OIG.”

A signed copy of the letter can be found here, and the text is below.

December 12, 2019
The Honorable Andrew Wheeler
Administrator
Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, D.C. 20460

Dear Administrator Wheeler:

We write to you concerning a troubling report issued by the Office of the Inspector General (OIG) of the Environmental Protection Agency (EPA) on December 10, 2019.  This report describes efforts by EPA’s leadership to obstruct the work of the Inspector General.  Our Committees were first made aware of this issue through a Seven Day Letter from the OIG, which you transmitted to our offices on November 5, 2019.

According to the Seven Day Letter, your Chief of Staff, Ryan Jackson, has shown “open defiance” towards the Office of Inspector General (OIG).  This letter was sent pursuant to a law requiring Congress to be notified within seven days of “particularly serious or flagrant problems, abuses, or deficiencies” identified by the Inspector General.  OIG’s December 10 report makes apparent that EPA has failed to take corrective actions to address these concerns.

As Administrator of the EPA, you must ensure that Agency employees cooperate with the Inspector General’s independent investigations, as required by law.  Congress and the American people rely on the Inspector General’s work to root out waste, fraud, abuse, and mismanagement at the EPA.

According to the Inspector General, your Chief of Staff has obstructed multiple inquiries, including by refusing to provide information in an audit requested by the House Committee on Science, Space, and Technology and refusing to submit to an interview with the OIG regarding an ongoing administrative investigation.  This lack of cooperation appears to follow a pattern.  For example, a recent Politico article reported instances of the same senior official not cooperating with the Inspector General and directing others within the Agency to withhold information.

In response to the Seven Day Letter, on November 5 you sent our offices a memorandum from the EPA General Counsel that asserts sweeping claims of legal authority for EPA to obstruct or ignore Inspector General investigations and audits.  The memorandum includes dubious legal claims that, if accepted, would eviscerate the authority of the Inspector General and undermine the ability of EPA to function in a transparent manner.

For example, the memo erroneously claims: “It is ultimately the Administrator that maintains control of the information sought and decides what constitutes an adequate accommodation by the Agency of an OIG request insofar as it is practicable.”

To the contrary, the Inspector General Empowerment Act — passed unanimously by both Houses of Congress in 2016 — authorizes Inspectors General to receive “timely access to all records, reports, audits, reviews, documents, papers, recommendations, or other materials” within an IG’s areas of responsibility.  Federal law also provides that when the Inspector General requests “information or assistance” from a federal agency, the head of that agency “shall” provide that information “insofar as is practicable and not in contravention of any existing law.” The Administrator’s compliance with requests from the Inspector General’s office is required, except in those limited instances in which compliance would be illegal or impractical.

The EPA General Counsel’s memo also claims that the Inspector General Act “does not authorize the OIG to take oral interviews.”  This is inaccurate.  Interviews — including with agency employees — have been an essential investigative tool for Inspectors General across federal agencies during both Republican and Democratic administrations.  Conducting interviews is also well within the broad statutory authority of Inspectors General.  The Act authorizes Inspectors General to “request such information or assistance as may be necessary for carrying out the duties and responsibilities provided by this Act” and “to administer to or take from any person an oath, affirmation, or affidavit.

In a response to the General Counsel’s memo, the EPA OIG released a memo on November 7, 2019, affirming its authorities under the Inspector General Act to receive records and conduct interviews.  The November 7 memo explains that the Act guarantees the Inspector General’s independence and that the EPA General Counsel’s interpretation of the Act “subverts our independence.”  On December 10, EPA OIG warned that if the General Counsel’s position stands, “the IG Act falls.” 

Your prior public statements suggest agreement with the Inspector General.  In August 2018, you issued a message to all EPA employees confirming the Inspector General’s authority and warning that compliance with requests from the OIG is not optional.  You wrote:

The OIG is an independent office within the EPA and, to meet its statutory mandate under the Inspector General Act, the OIG requires information and assistance from EPA managers and staff on a regular basis.  It is imperative and expected that agency personnel provide the OIG with access to personnel, facilities and records or other information or material that is needed by the OIG to accomplish its mission.

You also acknowledged that the OIG “follows generally accepted protocols for questioning employees and gathering evidence.” 

Furthermore, EPA’s own internal manual setting forth the authorities of the Inspector General also requires cooperation by Agency employees.  The manual states that “EPA managers and supervisors must ensure that all EPA employees cooperate with the OIG during audits and investigations.”  It further states that employees should be instructed to “[d]isclose and provide information pertaining to matters under review.”

The OIG must remain unencumbered in its ability to conduct independent investigations.  We are extremely concerned that you are creating an environment at EPA that directly contradicts your 2018 message to employees, is hostile towards accountability, and enables the very waste, fraud, abuse, and mismanagement that Congress has charged the Inspector General to investigate.

We urge you to immediately withdraw the Agency’s baseless legal memorandum and instruct all staff at EPA to cooperate with the OIG.

In addition, we request that the Agency provide a briefing for our staffs by December 20, 2019, on the steps you are taking to address the serious issues raised in the Seven Day Letter and December 10 OIG report.

116th Congress