Carper, Whitehouse and Merkley Request Investigation of EPA Official’s Potentially Unethical Actions Related to Previous Employer

WASHINGTON, D.C. – Today, U.S. Senators Tom Carper (D-Del.), top Democrat on the Environment and Public Works Committee (EPW), Sheldon Whitehouse (D-R.I.), top Democrat on the EPW Subcommittee on Clean Air and Nuclear Safety and Jeff Merkley (D-Ore.) sent a letter along with a detailed timeline to the Environmental Protection Agency (EPA) Office of Inspector General (OIG) requesting an investigation into the potential ethical violations of EPA Associate Administrator Elizabeth “Tate” Bennett. According to public information, within mere weeks of her start at EPA, Ms. Bennett met with her previous employer – the National Rural Electric Cooperative Association (NRECA) – about media strategy surrounding an event with then-Administrator Scott Pruitt and facilitated a meeting about an ongoing EPA enforcement matter affecting a NRECA-represented electric utility. The EPA also appeared to conceal details of the meeting from public view.

The senators are asking the EPA IG to examine this matter because this intervention by Ms. Bennett into the matters of a former employer appears to be in violation of the Office of Government Ethics’ “impartiality rule.”  This rule states that officials with a “covered relationship” – such as persons who had lead an organization within the last year – should not participate in matters affecting this entity “unless s/he has informed the agency designee of the appearance problem and received authorization from the agency designee.”

“Publicly available facts show that within weeks of starting at EPA, Ms. Bennett participated in undisclosed meetings with her former employer, the National Rural Electric Cooperative Association (NRECA), facilitated and participated in substantive conversations between NRECA and EPA regarding issues of interest to NRECA, and facilitated and participated in substantive conversations regarding an electric generation facility in Missouri owned by one of NRECA’s member companies, Associated Electric Cooperative Inc. (AECI)^[1], that is subject to an EPA environmental enforcement action,” the senators wrote.

The senators continued, “EPA officials also appear to have taken efforts to conceal several aspects of the April 20 site visit and follow up from public view.  Recent reporting and emails produced by EPA under FOIA identified several meetings during the April 20 trip to Missouri that did not appear on Pruitt’s public calendars or his calendars released through FOIA.”

Full text of the letter is below, and a PDF of the letter and the timeline can be accessed HERE. The letter’s appendix can be found HERE.

May 16, 2019

Charles J. Sheehan

Acting Inspector General

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, N.W.

Washington, DC 20460

Dear Acting Inspector General Sheehan,

We write to request that the Environmental Protection Agency (EPA) Office of Inspector General (OIG) conduct an investigation into potential ethics violations by Elizabeth “Tate” Bennett, EPA’s Associate Administrator for the Office of Public Engagement and Environmental Education (OPEEE). The request for an investigation is based on Ms. Bennett’s potential violation of the Office of Government Ethics (OGE) “impartiality rule.”

Publicly available facts show that within weeks of starting at EPA, Ms. Bennett participated in undisclosed meetings with her former employer, the National Rural Electric Cooperative Association (NRECA), facilitated and participated in substantive conversations between NRECA and EPA regarding issues of interest to NRECA, and facilitated and participated in substantive conversations regarding an electric generation facility in Missouri owned by one of NRECA’s member companies, Associated Electric Cooperative Inc. (AECI)^[1], that is subject to an EPA environmental enforcement action.

AECI owns and operates the Thomas Hill Energy Center and New Madrid Power Plant in Missouri.^[2] In 2002, EPA sent AECI several requests for information regarding the “compliance status of the Thomas Hill Energy Center and New Madrid Power Plant.”^[3] In 2011, EPA sent AECI a Notice of Violation (NOV) notifying AECI that it had broken the law “by commencing construction of, and continuing to operate, a major modification at the Thomas Hill Energy Center without applying for or obtaining” the agency’s approval.^[4] The Notice further indicated that the facility was also in violation of its operating permit because it had not installed the best available pollution controls.^[5]

Prior to beginning her appointment at EPA on March 19, 2017, Ms. Bennett was Senior Principal for Government Affairs at NRECA, where she was a registered lobbyist. NRECA represents the interests of more than 900 electric cooperatives—including AECI—in the United States.^[6] Ms. Bennett specifically lobbied on a wide range of EPA matters, including the Clean Power Plan, New Source Performance Standard,^[7] Ozone National Ambient Air Quality Standards (NAAQS), Clean Water Rule, EPA enforcement, coal combustion residual rules, pesticides bills, budget resolutions and appropriations bills. In the Recusal Statement she signed on November 1, 2017, she listed only three of those issues—Clean Power Plan, NAAQS and coal combustion residual issues—and agreed to “not participate personally or substantially in the merits of” those three issues without first consulting with EPA ethics officials.

An examination of available materials indicates that Ms. Bennett started to substantively engage in matters related to her former employer within weeks of her arrival at EPA. For example, former EPA Administrator Pruitt and other EPA officials, including Ms. Bennett, visited AECI’s Thomas Hill Energy Center on April 20, 2017.^[8]  These meetings were organized with the help of Ms. Bennett. Specifically, according to publicly released documents, Ms. Bennett:

• Participated in conversations with NRECA, AECI and the Association of Missouri Electric Cooperatives (AMEC), about media strategy around Pruitt’s April 20, 2017 visit and meeting at AECI’s Thomas Hill facility.^[9]
  • Participated in the April 20, 2017 site visit and a private meeting with Pruitt and NRECA^[10] about “a few action items.”^[11]
  • Facilitated several conversations between EPA political and career staff and AECI officials after the April 20 meeting about a potential settlement of an enforcement matter.^[12]

A more detailed timeline of events is attached.

Ms. Bennett’s involvement in an EPA enforcement matter against a member company of her former employer violates OGE’s so-called “impartiality rule,”^[13] which requires the following in relevant part:

Where an employee … knows that a person with whom he has a covered relationship is or represents a party to [a particular matter involving specific parties], and where the employee determines that the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter, the employee should not participate in the matter unless he has informed the agency designee of the appearance problem and received authorization from the agency designee….

Ms. Bennett has a covered relationship with her former employer, NRECA.  NRECA represents AECI. AECI is a specific party involved in a particular matter with EPA, EPA’s ongoing New Source Review enforcement action at the New Madrid Power Plant.^[14]  Because Bennett was a lobbyist for NRECA, which represents the interests of its members, she should not have been permitted to participate in discussions about the enforcement action against a NRECA member unless specifically authorized.  As of January 24, 2019, Ms. Bennett had not received a waiver to the “impartiality rule” to participate in matters where NRECA “is or represents a party.”^[15] 

EPA officials also appear to have taken efforts to conceal several aspects of the April 20 site visit and follow up from public view.  Recent reporting and emails produced by EPA under FOIA identified several meetings during the April 20 trip to Missouri that did not appear on Pruitt’s public calendars or his calendars released through FOIA.  At least one of these meetings included Bennett and a NRECA representative.  This reporting also identified another off-calendar meeting about the New Madrid Power Plant convened on April 27, 2018, by Susan Bodine, EPA’s Assistant Administrator for Enforcement and Compliance Assistance.  An Inspector General investigation could determine whether these omissions were intentional violations of the Federal Records Act and associated regulations designed to obfuscate the influence of regulated entities and their trade associations on a specific enforcement matter.

This is not the first time Members of Congress have raised ethical concerns about Ms. Bennett.^[16]  Despite being on notice of concerns about Ms. Bennett, EPA officials still allowed her to participate in matters from which she should have been recused.  This is also not the first time that we have written to you with serious concerns regarding EPA political appointee compliance with federal ethics rules.  In February, you were asked to investigate Bill Wehrum and David Harlow^[17] for similar violations of the OGE “impartiality rule.” Ethics problems appear to plague this administration, and are currently under investigation by other Inspectors General, such as the Department of Interior Inspector General’s recent announcement that it has launched an ethics investigation into Secretary Bernhardt^[18] and other officials at DOI.

An OIG investigation is accordingly warranted.  No other federal agency or component of EPA will be able to fully ascertain whether, and if so the degree to which, ethics violations have occurred.  One of your mandates under the Inspector General Act of 1978 is to keep “the Congress fully and currently informed about problems and deficiencies relating to the administration of such programs and operations and the necessity for and progress of corrective action.”^[19] We view all of our requests in this letter as consistent with that responsibility.  

Attached is additional information in support of this request.  We respectfully request you give this matter your fullest consideration. 

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