Tunnel Deal Nearing, But Not All Is Settled

Posted April 9, 2007 at 5:49pm

Almost 14 months after the Office of Compliance issued its first-ever formal complaint against the Architect of the Capitol — for health and safety violations in the Congressional utility tunnels — both agencies say they are close to working out a settlement agreement.

But a recent decision by the Government Accountability Office’s general counsel illustrates some of the disagreement that has arisen during the proceedings.

After the OOC filed its complaint in February 2006, the AOC, under pressure from Congress, began implementing an interim abatement plan to protect its workers from the most immediate dangers, including possible asbestos exposure.

As that plan was put in place last year, the OOC and AOC began working on a settlement plan, “which requires abatement of the identified hazards, continued interim protection for affected AOC employees until full abatement is achieved, and monitoring of the abatement progress by the Office of Compliance,” OOC acting Executive Director Tamara Chrisler testified at a Senate Appropriations Committee hearing last month.

But physically inspecting the miles of tunnels costs money, as does hiring the consultants and attorneys necessary to deal with many of the asbestos and other associated workplace safety issues.

As an agreement was drafted in February 2007, the OOC general counsel sought to include a provision whereby the OOC would submit to the AOC for reimbursement a list of costs and fees incurred in regard to tunnel inspections since June 2005. The provision also sought reimbursement on an annual basis as abatement efforts moved forward in the coming years.

The AOC subsequently sent a letter to Comptroller General David Walker, who heads the GAO, asking for a ruling on the OOC’s provision, stating that the reimbursement would violate appropriations law and result “in an unauthorized augmentation” of the OOC’s appropriations, according to a subsequent GAO decision that was recently released.

Then-AOC Alan Hantman argued in his letter that absent specific Congressional authority one agency may not reimburse another performing a function for which the second agency receives an appropriation.

OOC General Counsel Peter Eveleth argued that the Congressional Accountability Act (which charges the agency with enforcing Occupational Safety and Health Act standards in the legislative branch) allows for the proposed reimbursement.

The transaction would be “broader than a reimbursement or transfer of funds between agencies and is more appropriately viewed as ‘a corrective action for violations of … the Congressional Accountability Act that occurred and were not abated in a timely manner by the AOC,’” he said.

GAO General Counsel Gary Kepplinger eventually sided with the AOC, noting that the OOC “is responsible for investigating and litigating OSHA compliance with regard to legislative branch entities, and it receives an appropriation to carry out these activities. Thus, Compliance may not be reimbursed for its costs in enforcing the CAA. Similarly, AOC may not reimburse Compliance for Compliance’s investigation, litigation, and monitoring costs, because AOC’s appropriation is not available for these purposes.”

Kepplinger also noted that “it would be a usurpation of Congress’s power of the purse for a federal agency like Compliance to operate beyond the level it can finance with its appropriations with funds derived from another source unless that source is specifically approved by Congress.”

In the fiscal 2008 appropriations cycle the OOC has asked Congress to augment its budget in light of its responsibility to monitor the tunnels.

The agency’s 2008 budget request includes $120,000 to cover the costs of an OOC safety and health expert who will work with an AOC liaison to facilitate abatement pursuant to the tunnels settlement agreement.

An additional $152,000 has been requested to obtain the expertise of other expert consultants who can address structural, heat, egress, mold and asbestos issues.

“In order to ensure the safety and health of workers, this monitoring may require the procurement of expertise that the Office does not have available on staff,” Chrisler said in her testimony last month. “The current staff complement of the OOC has been stretched in both [full-time equivalent] resources and contractor funding, and we currently do not have available the expertise to address many of the specifics involved in the abatement of the tunnels hazards.”

Separate from the OOC-initiated complaint that is currently in settlement, the 10 members of the tunnel shop team filed a retaliation complaint against the AOC in October 2006 stating they had been subject to a hostile work environment since they came forward last spring to let Congress know about the poor working conditions.

The “request for counseling” the workers filed in October is the first step in the OOC’s dispute resolution process and eventually could lead to a suit being filed in the U.S. District Court for the District of Columbia.

That process currently is in a mediation phase, but members of the tunnel shop team have said they don’t expect the case to be resolved without going to federal court.