Date: 1990-03-28
Speaker: THOMAS A. LUKEN (democrat)
Chamber: H

Mr. Chairman. the amendment which I am offering today is intented to limit the use of private contractors by the new Department of Environmental Protection. This amendment is needed to ensure that the basic functions of the Department are entrusted solely to officers and employees of the Federal Government. rather than handed over to private contractors. The extent of the problem is set forth in the OTA report of January 29. 1989. During the last 8 years. the Superfund Program has been increasingly dependent upon contractors. who have received between 80 and 90 percent of its funds each year. Over that time. private contractors have received $4 billion from the Superfund Program. Section 115 of H.R. 3847 specifies that "inherently governmental functions" of the Department of Environmental Protection must be carried out only by Government employees. The amendment which I am offering clarifies this provision by specifying that these inherently governmental functions include: First. preparation of testimony. second. the development and drafting of regulations. standards. third. policies. and fourth. enforcement of laws and regulations. Thus my amendment would limit the use of private contractors and ensure that these basic Government policy functions are carried out only by Government employees. not beltway bandits. This amendment addresses a serious. long standing problem. EPA has farmed out so much of its work to outside contractors that much of the Agencys basic functions are being performednot by Government employees but by an invisible bureaucracy of contractors and consultants. This amendment addresses a growing scandal. In the committee report on this bill. the Committee on Government Operations. chaired by my good friend Mr. CONYERS. noted that there have been situations where private contractors have been hired by EPA to do such things as formulate and analyze policy options. evaluate the performance of EPA regional offices. and write Agency regulations. Outside contractors have even been used to prepare congressional testimony and to write annual reports to Congress which EPA was required to submit by law. While EPA cops out. consultants who are loaded down with the burden of conflicts of interest. selectively enforce the law and regulations. As a member of the Energy and Commerce Committee and the chairman on the Subcommittee on Transportation and Hazardous Materials. which has jurisdiction over the solid waste laws. including the Resource Conservation and Recovery Act (RCRAJ and Superfund. I note that we have found these same problems. For example. we have found cases in which private contractors were hired by EPA to formulate regulatory policy on hazardous waste when these same contractors were doing Work for the very companies to which the regulations would have applied. This flagrant misuse of contractors compromises and jeopardizes the EPAs mandate to carry out environmental laws. Clearly. key Agency activities. such as writing regulations. should always be performed by Government employees. The use of private contractors mistakenly substitutes the judgment of contractors. who may have multiplicity of conflicting interests. for the impartial judgment of Government employees who are bound by the single purpose of serving the public interest. The Office of Management and Budget recognizes this fundamental principle. OMB has issued a directive prohibiting Federal agencies from hiring private contractors to carry out inherently governmental functions. But EPA has blatantly ignored even this mandate from within the executive branch. We are just spelling out. making clear the OMB policy. My amendment to limit the use of outside contractors by the new Department is consistent with the intent of the Committee on Government Operations. The committee report states that the committee intends that the Department will be precluded from contracting out for the drafting of Hl1189 Agency rules. regulations. or policies. Mr. KANJORSKI. Mr. Chairman. I rise in SEC. or for the implementation and en- support of the Luken amendment which would forcement of Agency regulations. expand the definition of "inherently govern- (a) However. in the face of EPAs history mental functions" when contracting out at the (1) of flouting this principle. I believe Department of Environmental Protection. vital that it is crucial that we include pre- As chairman of the Subcommittee on quat cise language in the legislation itself. Human Resources of the Committee on Post por This amendment would not prohibit Office and Civil Service. I have extensively re- gresn the hiring of outside contractors by viewed the concept of contracting out. One (2) the new Department of Environmen- important area of my review was the contract- Envi tal Protection. Certainly. nonpolicy Ing out of functions considered to be inherent gro functions such as technical and scien- ly governmental. This consists of anything sage tiftc work. cleanup of hazardous waste from privacy issues. such as contracting for and sites. research. and data collections the security clearances. or the act of govern- mor can be performed by contractors ing. such as the disbursement of grant money mor where appropriate. But environmental ns the d isbrsment A my mos decisiontmaking should be performed for the Federal Government. As my colleague see i be Agency tseoulf. by emplyes has pointed out. the preparation of testimony. al re by the Agency itself. by employees tedeeomnaddrfigfruseul (3) who are directly accountable to the the development and drafting of rules. regula- sibli Congress and the President. and tions. standards. and policies. and the en- cost. whose loyalty is not to private employ- forcement of statutes and regulations are and envi ers. should be considered inherently governmental fede Elevating EPA to Cabinetlevel functions. (4) status. in keeping with the greater During my subcommittees hearings. several rorm awareness ofand deep concern scholars in the area of public policy testified 1990 aboutthe environment. which we are that contracting out has finally gotten out of in fi experiencing throughout America. control by allowing the private sector to con- for f virol may be a good idea. But. if we do. we trol public policy. They cited several examples bud must make sure that the act of confer- of where the Government has no set stand" year ring Cabinetlevel status will not en- ards or controls on what contractors are per- (5. hance the opportunity of the new De- mitted to do and how much money is spent men partment of Environmental Protection on private contractors and consultants. the to use beltway bandits to carry out I have heard of many instances where pd- 1991 basic policy. vate sector contractors are performing func- leve I urge my colleagues to support this tions that they should not be performing. For 1990 important amendment. example. the Department of Energy has a pri- thor the