19–010

Calendar No. 737

107TH CONGRESS REPORT

2d Session " ! SENATE 107–320

OMBUDSMAN REAUTHORIZATION ACT OF 2002

OCTOBER 17, 2002.—Ordered to be printed

Mr. JEFFORDS, from the Committee on Environment and Public

Works, submitted the following

REPORT

[to accompany S. 606]

[Including cost estimate of the Congressional Budget Office]

The Committee on Environment and Public Works, to which was

referred a bill (S. 606) to provide additional authority to the Office

of Ombudsman of the Environmental Protection Agency, having

considered the same, reports favorably thereon with an amendment

and recommends that the bill, as amended, do pass.

GENERAL STATEMENT AND BACKGROUND

The 1984 amendments to the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.) first established a National Hazardous Waste Ombudsman at the Environmental Protection Agency (EPA) (42 U.S.C. 6917). Over time, EPA expanded the Office of

the Ombudsman’s jurisdiction to include Superfund and other hazardous waste programs managed by the Office of Solid Waste and

Emergency Response (OSWER). EPA retained the Office of the Ombudsman within OSWER as a matter of policy after its legislative

authorization expired in 1988. Additionally, EPA installed parttime ombudsman in each of its regional offices.

The Office of the Ombudsman typically responds to citizen’s concerns, assists industry in complying with environmental regulations, and handles complaints arising from the relevant hazardous

waste programs. In recent years, the Office has played an increasingly prominent role through his investigations of citizen complaints referred by Members of Congress.

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Asked to examine whether there are institutional barriers to the

fulfillment of the Office of the Ombudsman’s responsibilities, the

General Accounting Office (GAO) issued a report (GAO–01–813) titled ‘‘EPA’s National and Regional Ombudsmen Do Not Have Sufficient Independence’’ in July 2001. The report found that key aspects of EPA’s Office of the Ombudsman were not consistent with

relevant professional standards. The report found that ‘‘EPA could

help ensure that the ombudsman is perceived as independent by locating the function outside the unit he is responsible for investigating and by giving him control over his budget and staff resources.’’ The report also found that the lack of independence of the

regional ombudsmen should preclude their involvement in more

significant investigations, and that EPA should reexamine these

positions. Additionally, the report recommended that the Office of

the Ombudsman (1) develop written criteria for selecting and

prioritizing cases for investigations and (2) maintain records on his

investigations and other activities sufficient to serve as the basis

for a reasonable estimate of resource needs.

Partly in response to the GAO’s recommendations, in the fall of

2001 (November 27), EPA announced the transfer of the Office of

the National Ombudsman to the Office of the Inspector General.

The transfer was challenged in Federal court by the then National

Ombudsman, but the court dismissed the claim April 12, 2002, ruling that the National Ombudsman had not exhausted his potential

administrative remedies. The transfer became effective on April 13,

2002, and the Office was physically relocated on April 19, 2002.

Claiming that the move of the Office of the Ombudsman to the Office of the Inspector General (OIG) would compromise his independence, the National Ombudsman resigned April 22, 2002. The

EPA appointed an Acting National Ombudsman on May 3, 2002.

OBJECTIVES OF THE LEGISLATION

S. 606 reauthorizes the Office of the Ombudsman and sets funding levels through fiscal year 2012. The legislation strengthens the

Office of the Ombudsman by establishing an independent office

within EPA whose head shall be appointed by the President and

confirmed by the Senate. The Ombudsman must not have been an

employee of the EPA 1 year prior to appointment and must have

prior experience as an ombudsman in a Federal, State, or local government entity. The National Ombudsman reports directly to the

Administrator of the EPA, but can only be removed by the President.

It is the intent of the legislation that the Office of the Ombudsman conform to the relevant professional standards for establishment and operation. One such guideline is the American Bar Association’s 2001 Standards for the Establishment and Operation of

Ombuds Offices. It is expected that the Office of the Ombudsman

conform to either the ABA’s standard or a similar standard that is

at least as rigorous and widely accepted.

The Office of the Ombudsman is empowered to conduct investigations, make findings of fact, hold public hearings, and make nonbinding recommendations to the EPA Administrator concerning

programs within the jurisdiction of the EPA’s Office of Solid Waste

and Emergency Response.

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The Office of the Ombudsman is required to issue an annual report of its activities to the Congress and may issue additional reports, conclusions, and recommendations concerning other matters

under investigation by the Office. It is the intent of this legislation

that these reports include dissenting views either in whole, or

where appropriate, in summarized form.

SECTION-BY-SECTION ANALYSIS

Section 1. Short Title

This Act may be cited as the ‘‘Ombudsman Reauthorization Act

of 2002’’.

Sec. 2. Office of Ombudsman

This section amends the Solid Waste Disposal Act (42 U.S.C.

6901 et seq.) to restore the authorization for the Office of the Ombudsman originally established by Congress in 1984 (42 U.S.C.

6917) to receive complaints and render assistance to any person regarding hazardous waste programs at the Environmental Protection Agency (EPA). This section strengthens the Office of the Ombudsman by establishing an independent office within EPA, specifies the duties, powers and responsibilities of the Office, allows the

Ombudsman to administer the Office through control of the budget

and staff, provides employee whistleblower protection for any person who complies with this section, authorizes appropriations and

establishes a separate line item in the budget for the Office. This

section also allows the Ombudsman to make recommendations directly to the Administrator, while at the same time requiring the

Ombudsman to report annually to Congress and the President, and

providing conditions for removal of the Ombudsman.

SUBSECTION (A): DEFINITIONS

This subsection defines the term ‘‘Agency’’ as the EPA, the term ‘‘Deputy Ombudsman’’ as individuals appointed as such by the Ombudsman in each region of the Agency, the term ‘‘Office’’ as the Office of the Ombudsman, and the term ‘‘Ombudsman’’ as the director

of the Office.

SUBSECTION (B): ESTABLISHMENT

This subsection establishes the Office as an independent office

within EPA. The previous Ombudsman was established within the

Office of Solid Waste and Emergency Response (OSWER), and reported to the Assistant Administrator of OSWER. The Ombudsman

was placed within OSWER because he had responsibility for receiving complaints and rendering assistance on programs administered

by that office. However, the Ombudsman was not truly independent because he was under the supervision of, and his budget

and resources were controlled by, those who administered the programs he investigated. This subsection corrects this problem and

establishes a truly independent Office of the Ombudsman at EPA,

consistent with other Federal ombudsmen and relevant professional guidelines such as the American Bar Association and the

United States Ombudsman Association. This subsection provides

that the Ombudsman shall be appointed by the President by and

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with the advice and consent of the Senate. Eligible appointees are

individuals who have experience as an Ombudsman in a government entity, and who have not worked at EPA within 1 year of appointment. The Ombudsman serves a 5-year term and may be reappointed one additional term. The Ombudsman may be removed

or suspended by the President for neglect of duty or malfeasance

in office, and the reasons for removal or suspension must be communicated to Congress.

SUBSECTION (C): DUTIES

This subsection provides that the Ombudsman shall receive complaints, grievances or requests for information from any person relating to any program or requirement administered by OSWER, including but not limited to the Solid Waste Disposal Act, and the

Comprehensive Environmental Response, Compensation, and Liability Act of 1980. The Ombudsman may render assistance, conduct investigations, make findings of fact, and make nonbinding

recommendations to the EPA Administrator regarding these programs and requirements.

SUBSECTION (D): POWERS AND RESPONSIBILITIES

This subsection would codify and strengthen the powers of the

Office of the Ombudsman in order to provide the greatest protection for the independence of the Office, and ensure that the Ombudsman may carry out his duties as intended by this section. EPA

has currently placed the ombudsman function in the Inspector General’s office. According to testimony before this committee on June

25, 2002, the Inspector General’s office requires the Ombudsman to

obtain prior approval by management to conduct a wide range of

activities, such as determining matters appropriate for investigation, or communicating with the public, Congress and the media.

This subsection clarifies that the Ombudsman may communicate

with any person, including Congress and the press. The Ombudsman may select and prioritize cases through the power to investigate any action, select appropriate matters for action, and determine the scope and manner of investigations made by the Office as

long as the case falls under the programs or requirements outlined

above in subsection (c).

The Ombudsman may also prescribe the methods by which complaints are made, received and addressed by the Office. The Ombudsman may determine how and when to distribute conclusions

and recommendations on matters addressed by the Office (separate

from the requirement that the Ombudsman issue an annual report

as provided in a later subsection). The Ombudsman may request

assistance from other Federal agencies and departments, examine

records and inspect properties under the administrative jurisdiction

of Federal agencies and departments involved in a matter under

OSWER. The Ombudsman may conduct public hearings on the

record in the course of an investigation, and may issue a subpoena

to obtain information relevant to the investigation. In addition to

conducting public hearings, the Ombudsman may also engage in alternate dispute resolution and informal processes to address citizen

complaints. The Ombudsman shall administer a budget for the Office.

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SUBSECTION (E): ADMINISTRATION

This subsection allows the Ombudsman to manage the Office

through control of the budget and personnel resources, and places

reporting requirements on the Office. The Ombudsman shall appoint a Deputy Ombudsman in each region of the Agency, and may

hire and supervise other employees necessary to carry out the duties of the Office. It is the intent of the legislation that the Deputy

Ombudsmen be full-time employees of the Office of the Ombudsman. The Ombudsman may delegate responsibilities to other employees of the Office except the power of delegation, the subpoena

power, and the responsibility to make recommendations to the Administrator. The Ombudsman must maintain contact information

different from the contact information of the Agency in each region

to ensure that citizens may communicate unfettered with the Office

of the Ombudsman. The Ombudsman is required to publish an annual report on the status of complaints and cases brought before

the Ombudsman, and must submit the report to Congress, the

President, and the Administrator. The Ombudsman may also issue

reports and recommendations concerning individual matters addressed by the Office. The Ombudsman must solicit comments from

the Agency, and must include these comments in any written report or recommendation issued by the Office.

SUBSECTION (F): PENALTIES

This subsection clarifies that the provisions of law relating to

knowingly and willfully making false statements (18 U.S.C. 1001)

and obstruction of justice (18 U.S.C. 1505) apply to activities performed by the Office of the Ombudsman.

SUBSECTION (G): EMPLOYEE PROTECTION

This subsection ensures that the duties, powers and responsibilities of the Office of the Ombudsman are protected activity under

Federal environmental whistleblower statutes. This subsection provides that any employee may not be discharged or discriminated

against (with respect to compensation, terms, conditions or privileges of employment) by their employer for complying with any provision of this section. Protected employees include employees of the

Office of the Ombudsman and other government employees as well

as non-government employees involved in a matter before the Office.

Any employee who believes that they have been discharged or

discriminated against for complying with this section may, within

180 days following the violation, file a complaint with the Department of Labor (DOL) in accordance with the procedures established

in the Energy Reorganization Act of 1974 (42 U.S.C. 5851). Many

other Federal environmental statutes also have whistleblower provisions. However, the statute of limitations for filing a complaint

tends to be 30 days, and is often too short a timeframe for the employee to become aware of the violation and file a complaint with

DOL. The complaint procedure established in 42 U.S.C. 5851 is

considered a more protective standard for whistleblower complaints. The case law has consistently held that no categories of

employees are excluded, and the statute has been used effectively

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in recent years by Federal and private employees, including those

engaged in Ombudsman activities.

Under the DOL proceedings, upon receipt of the complaint, the

Secretary of Labor must notify the person named in the complaint,

and conduct an investigation of the alleged violation. The Secretary

must complete the investigation, and notify both parties of the results of the investigation within 30 days of receiving the complaint.

If the parties fail to enter settlement negotiations, the Secretary

must issue an order providing relief or deny the complaint within

90 days of receiving the complaint. An order issued by the Secretary may be appealed in the United States court of appeals for

the circuit in which the violation occurred. If a person fails to comply with an order, the Secretary may file a civil action in United

States district court to enforce such order.

SUBSECTION (H): APPLICABILITY

This subsection provides that the establishment of this section

may not limit any remedy or right of appeal. The Office of the Ombudsman may conduct activities as authorized in this section, including activities that relate to agency actions that under any provision of law, are final, not reviewable, or not subject to appeal.

However, in so doing, the Office does not have any authority to

change Administrative policy. The Office of the Ombudsman is established as an ‘‘informal’’ function to resolve complaints, through

powers such as the authority to conduct investigations, conduct

public hearings and publish reports and recommendations. Recommendations of the Ombudsman are not binding administrative

action. Any person who contacts the Office is not limited from following other procedures concerning grievances, appeals or administrative matters under the Solid Waste Disposal Act or any other

law, nor is the establishment of the Office intended to affect the

formal administration of any law. Subsection (i): Authorization of

Appropriations

This subsection authorizes $3 million, $4 million, and $5 million

for fiscal years 2003–2004, 2005–2008, and 2009–2012 respectively,

for the Office of the Ombudsman. Directs the President to include

a separate line item for the Office in the annual budget request

sent to Congress.

LEGISLATIVE HISTORY

S. 606 was introduced by Senators Crapo, Allard, and Craig on

March 23, 2001 and referred to the Committee on Environment

and Public Works. The committee considered and amended the bill

in a business meeting on September 26, 2002 and ordered the bill,

as amended, reported to the Senate.

The committee held a hearing June 25, 2002 to conduct oversight

of the EPA’s Inspector General Actions with respect to the Office

of the Ombudsman and to evaluate S. 606.

HEARINGS

On June 25, 2002, the Committee on Environment and Public

Works held a hearing to conduct oversight of the EPA’s Inspector

General Actions with respect to the Office of the Ombudsman and

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to evaluate S. 606, a bill to provide additional authority to the Office of the Ombudsman of the EPA. The committee received testimony from Senator Wayne Allard; Representative Jerrold Nadler;

EPA Inspector General Nikki L. Tinsley; David Wood, Director,

Natural Resources and Environment, U.S. General Accounting Office; Danielle Brian, Executive Director, Project on Government

Oversight, Washington, DC; the former EPA National Ombudsman

Robert Martin; Katherine Zanetti, Facilitator of the Shoshone Natural Resources Coalition, Wallace, ID; and Susan Shortz, President

of Halt Environmental Lead Pollution, Throop, PA.

ROLLCALL VOTES

The Committee on Environment and Public Works met to consider S. 606 on September 26, 2002. The committee, by unanimous

voice vote, agreed to a complete substitute amendment by Senators

Jeffords and Crapo. The committee voted favorably to report S.

606, as amended, by unanimous voice vote.

REGULATORY IMPACT STATEMENT

In compliance with section 11(b) of rule XXVI of the Standing

Rules of the Senate, the committee makes evaluation of the regulatory impact of the reported bill.

The bill does not create any additional regulatory burdens, nor

will it cause any adverse impact on the personal privacy of individuals.

MANDATES ASSESSMENT

In compliance with the Unfunded Mandates Reform Act of 1995

(Public Law 104–4), the committee finds that S. 660 would impose

no Federal intergovernmental unfunded mandates on State, local,

or tribal governments.

COST OF LEGISLATION

Section 403 of the Congressional Budget and Impoundment Control Act requires that a statement of the cost of the reported bill,

prepared by the Congressional Budget Office, be included in the report. That statement follows:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, October 9, 2002.

Hon. JAMES M. JEFFORDS, Chairman,

Committee on Environment and Public Works,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 606, the Ombudsman Reauthorization Act of 2002.

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If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Susanne S. Mehlman,

who can be reached at 226–2860.

Sincerely,

DAN L. CRIPPEN.

S. 606, Ombudsman Reauthorization Act of 2002, as ordered reported by the Senate Committee on Environment and Public

Works on September 26, 2002

Summary

S. 606 would reauthorize the Office of the Ombudsman within

the Environmental Protection Agency (EPA) and would authorize

the appropriation of $18 million over the 2003–2007 period to support that office. The Office of the Ombudsman has been maintained

since its authorization expired in 1988 and was most recently

transferred to EPA’s Office of the Inspector General.

Under S. 606, the new office would be an independent office

within EPA and the director of the office (i.e., the Ombudsman)

would be appointed by the President and confirmed by the Senate.

The Ombudsman would have the authority to investigate citizen

complaints about programs under EPA’s jurisdiction and would

have control over the office’s budget and staff. CBO estimates that

implementing this legislation would cost $18 million over the 2003–

2007 period, assuming appropriation of the specified amounts.

S. 606 contains no intergovernmental or private-sector mandates

as defined in the Unfunded Mandates Reform Act (UMRA) and

would impose no costs on State, local, or tribal governments.

Estimated Cost to the Federal Government

CBO estimates that implementing the bill would cost $18 million

over the 2003–2007 period, assuming appropriation of the amounts

authorized for each year. For this estimate, we assume the bill will

be enacted near the beginning of fiscal year 2003. The estimated

outlays are based on historical patterns for similar activities. The

estimated budgetary impact of S. 606 is shown in the following

table. The costs of this legislation fall within budget function 300

(natural resources and environment).

By Fiscal Year, in Millions of Dollars

2003 2004 2005 2006 2007

CHANGES IN SPENDING SUBJECT TO APPROPRIATION1

Office of the Ombudsman:.

Authorization Level ................................................................................ 3 3 4 4 4

Estimated Outlays ................................................................................. 3 3 4 4 4

1 EPA has not yet received a full-year appropriation for 2003. The Office of the Ombudsman received an appropriation of about $1 million in 2002.

Intergovernmental and Private-Sector Impact

S. 606 contains no intergovernmental or private-sector mandates

as defined in UMRA and would impose no costs on State, local, or

tribal governments.

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Estimate Prepared By: Federal Costs: Susanne S. Mehlman; Impact

on State, Local, and Tribal Governments: Susan Sieg Tompkins;

Impact on the Private Sector: Lauren Marks.

Estimate Approved By: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

CHANGES IN EXISTING LAW

In compliance with section 12 of rule XXVI of the Standing Rules

of the Senate, changes in existing law made by the bill as reported

are shown as follows: Existing law proposed to be omitted is enclosed in [black brackets], new matter is printed in italic, existing

law in which no change is proposed is shown in roman:

Changes in Existing Law

In compliance with section 12 of rule XXVI of the Standing Rules

of the Senate, changes in existing law made by the bill as reported

are shown as follows: Existing law proposed to be omitted is enclosed in [black brackets], new matter is printed in italic, existing

law in which no change is proposed is shown in roman:

SOLID WASTE DISPOSAL ACT

[As Amended Through P.L. 106–580, Dec. 29, 2000]

TITLE II—SOLID WASTE DISPOSAL

Subtitle A—General Provisions

SHORT TITLE AND TABLE OF CONTENTS

SEC. 1001. This title (hereinafter in this title referred to as

‘‘this Act’’), together with the following table of contents, may be

cited as the ‘‘Solid Waste Disposal Act’’:

Subtitle A—General Provisions

Sec. 1001. Short title and table of contents.

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øOFFICE OF OMBUDSMAN

øSEC. 2008. (a) ESTABLISHMENT; FUNCTIONS.—The Administrator shall establish an Office of Ombudsman, to be directed by an

Ombudsman. It shall be the function of the Office of Ombudsman

to receive individual complaints, grievances, requests for information submitted by any person with respect to any program or requirement under this Act.

ø(b) AUTHORITY TO RENDER ASSISTANCE.—The Ombudsman

shall render assistance with respect to the complaints, grievances,

and requests submitted to the Office of Ombudsman, and shall

make appropriate recommendations to the Administrator.

ø(c) EFFECT ON PROCEDURES FOR GRIEVANCES, APPEALS, OR

ADMINISTRATIVE MATTERS.—The establishment of the Office of Ombudsman shall not affect any procedures for grievances, appeals, or

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administrative matters in any other provision of this Act, any other

provision of law, or any Federal regulation.

ø(d) TERMINATION.—The Office of the Ombudsman shall cease

to exist 4 years after the date of enactment of the Hazardous and

Solid Waste Amendments of 1984.¿

SEC. 2008. OFFICE OF OMBUDSMAN.

(a) DEFINITIONS.—In this section:

(1) AGENCY.—The term ‘‘Agency’’ means the Environmental

Protection Agency.

(2) DEPUTY OMBUDSMAN.—The term ‘‘Deputy Ombudsman’’

means any individual appointed by the Ombudsman under

subsection (e)(1)(A)(i).

(3) OFFICE.—The term ‘‘Office’’ means the Office of the Ombudsman established by subsection (b)(1).

(4) OMBUDSMAN.—The term ‘‘Ombudsman’’ means the director of the Office.

(b) ESTABLISHMENT.— (1) IN GENERAL.—There is established within the Agency an

office to be known as the ‘‘Office of the Ombudsman’’.

(2) OVERSIGHT.— (A) IN GENERAL.—The Office shall be an independent

office within the Agency.

(B) STRUCTURE.—To the maximum extent practicable,

the structure of the Office shall conform to relevant professional guidelines, standards, and practices.

(3) HEAD OF OFFICE.— (A) OMBUDSMAN.—The Office shall be headed by an

Ombudsman, who shall—

(i) be appointed by the President by and with the

advice and consent of the Senate; and

(ii) report directly to the Administrator.

(B) QUALIFICATIONS FOR AND RESTRICTIONS ON EM- PLOYMENT.—A person appointed as Ombudsman—

(i) shall have experience as an ombudsman in a

Federal, State, or local government entity; and

(ii) shall not have been an employee of the Agency

at any time during the 1-year period before the date of

appointment.

(C) TERM.—The Ombudsman—

(i) shall serve for a term of 5 years; and

(ii) may be reappointed for not more than 1 additional term.

(D) REMOVAL.—

(i) IN GENERAL.—The President may remove or

suspend the Ombudsman from office only for neglect of

duty or malfeasance in office.

(ii) COMMUNICATION TO CONGRESS.—If the President removes or suspends the Ombudsman, the President shall communicate the reasons for the removal or

suspension to Congress.

(c) DUTIES.—The Ombudsman shall—

(1) receive, and render assistance concerning, any complaint, grievance, or request for information submitted by any

person relating to any program or requirement under—

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(A) this Act;

(B) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et

seq.); or

(C) any other program administered by the Office of

Solid Waste and Emergency Response of the Agency; and

(2) conduct investigations, make findings of fact, and make

nonbinding recommendations to the Administrator concerning

the programs and requirements described in paragraph (1).

(d) POWERS AND RESPONSIBILITIES.—In carrying out this section, the Ombudsman—

(1) may investigate any action of the Agency without regard

to the finality of the action;

(2) may select appropriate matters for action by the Office;

(3) may—

(A) prescribe the methods by which complaints shall be

made to, and received and addressed by, the Office;

(B) determine the scope and manner of investigations

made by the Office; and

(C) determine the form, frequency, and distribution of

conclusions and recommendations of the Office;

(4) may request the Administrator to provide the Ombudsman notification, within a specified period of time, of any action taken on a recommendation of the Ombudsman;

(5) may request, and shall be granted by any Federal agency or department, assistance and information that the Ombudsman determines to be necessary to carry out this section;

(6) may examine any record of, and enter and inspect without notice any property under the administrative jurisdiction

of—

(A) the Agency; or

(B) any other Federal agency or department involved in

a matter under the administrative jurisdiction of the Office

of Solid Waste and Emergency Response of the Agency;

(7) may—

(A) issue a subpoena to compel any person to appear to

give sworn testimony concerning, or to produce documentary or other evidence determined by the Ombudsman to be

reasonable in scope and relevant to, an investigation by the

Office; and

(B) seek enforcement of a subpoena issued under subparagraph (A) in a court of competent jurisdiction;

(8) may carry out and participate in, and cooperate with

any person or agency involved in, any conference, inquiry on the

record, public hearing on the record, meeting, or study that, as

determined by the Ombudsman—

(A) is material to an investigation conducted by the

Ombudsman; or

(B) may lead to an improvement in the performance of

the functions of the Agency;

(9) may administer oaths and hold hearings in connection

with any matter under investigation by the Office;

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(10) may engage in alternative dispute resolution, mediation, or any other informal process that the Ombudsman determines to be appropriate to carry out this section;

(11) may communicate with any person, including Members

of Congress, the press, and any person that submits a complaint, grievance, or request for information under subsection

(c)(1); and

(12) shall administer a budget for the Office.

(e) ADMINISTRATION.— (1) IN GENERAL.—The Ombudsman shall— (A)(i) appoint a Deputy Ombudsman for each region of

the Agency; and

(ii) hire such other assistants and employees as the

Ombudsman determines to be necessary to carry out this

section; and

(B) supervise, evaluate, and carry out personnel actions

(including hiring and dismissal) with respect to any employee of the Office.

(2) DELEGATION OF AUTHORITY.—The Ombudsman may

delegate to other employees of the Office any responsibility of

the Ombudsman under this section except—

(A) the power to delegate responsibility;

(B) the power to issue subpoenas; and

(C) the responsibility to make recommendations to the

Administrator.

(3) CONTACT INFORMATION.—The Ombudsman shall maintain, in each region of the Agency, a telephone number, facsimile number, electronic mail address, and post office address

for the Ombudsman that are different from the numbers and

addresses of the regional office of the Agency located in that region.

(4) REPORTS.—The Ombudsman— (A) shall, at least annually, publish in the Federal Register and submit to the Administrator, the President, the

Committee on Environment and Public Works of the Senate, and the Committee on Energy and Commerce of the

House of Representatives a report on the status of health

and environmental concerns addressed in complaints and

cases brought before the Ombudsman in the period of time

covered by the report;

(B) may issue reports, conclusions, or recommendations

concerning any other matter under investigation by the Office;

(C) shall solicit comments from the Agency concerning

any matter under investigation by the Office; and

(D) shall include any comments received by the Office

in written reports, conclusions, and recommendations

issued by the Office under this section.

(f) PENALTIES.—An investigation conducted by the Ombudsman

under this section constitutes— (1) a matter under section 1001 of title 18, United States

Code; and

(2) a proceeding under section 1505 of title 18, United

States Code.

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(g) EMPLOYEE PROTECTION.— (1) IN GENERAL.—No employer may discharge any employee, or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment of the employee, because the employee (or any person

acting at the request of the employee) complied with any provision of this section.

(2) COMPLAINT.—Any employee that, in the opinion of the

employee, is discharged or otherwise discriminated against by

any person in violation of paragraph (1) may, not later than

180 days after the date on which the violation occurs, file a

complaint in accordance with section 211 of the Energy Reorganization Act of 1974 (42 U.S.C. 5851).

(h) APPLICABILITY.—

(1) IN GENERAL.—This section—

(A) does not limit any remedy or right of appeal; and

(B) may be carried out notwithstanding any provision

of law to the contrary that provides that an agency action

is final, not reviewable, or not subject to appeal.

(2) EFFECT ON PROCEDURES FOR GRIEVANCES, APPEALS, OR

ADMINISTRATIVE MATTERS.—The establishment of the Office

does not affect any procedure concerning grievances, appeals, or

administrative matters under this Act or any other law (including regulations).

(i) AUTHORIZATION OF APPROPRIATIONS.— (1) IN GENERAL.—There are authorized to be appropriated

to carry out this section— (A) $3,000,000 for each of fiscal years 2003 and 2004;

(B) $4,000,000 for each of fiscal years 2005 through

2008; and

(C) $5,000,000 for each of fiscal years 2009 through

2012.

(2) SEPARATE LINE ITEM.—In submitting the annual budget

for the Federal Government to Congress, the President shall include a separate line item for the funding for the Office.

* * * * * * *

Æ