Agencies weigh options as contempt vote looms

With the House's principal oversight committee set to vote to hold Environmental Protection Agency and Office of Management and Budget officials in contempt of Congress for failing to turn over subpoenaed records, the agencies Thursday will consider whether to claim executive privilege for withholding the documents or just surrender them, according to people briefed on the discussions.

House Oversight and Government Reform Chairman Henry Waxman, D-Calif., last month subpoenaed EPA Administrator Stephen Johnson and Susan Dudley, head of OMB's office of Information and Regulatory Affairs, for records on their roles in EPA's March announcement of new ozone air quality standards.

Though each agency has produced thousands of pages, they have not produced some documents related to internal meetings and communications with the White House.

The committee has argued documents should be produced unless the agencies make a valid claim of executive privilege, which courts have recognized as protecting some presidential deliberations from congressional oversight.

The agencies have thus far declined to assert privilege. But with the contempt vote set for Friday, both agencies may do so, according to officials. It is also possible they will turn over the material, the sources said.

OMB and EPA, meanwhile, blasted Waxman for pressing the issue despite efforts to reach an agreement.

"It is unfortunate that Chairman Waxman is characterizing the committee's work with us ... in the way that he has," an EPA spokesman said. "They have been unmoving and we have been accommodating."

The spokesman said he believed the dispute will be resolved before the contempt vote.

In a letter sent Wednesday to Waxman, OMB General Counsel Jeffrey Rosen said the chairman's June 13 letter announcing the contempt hearing "fails to provide a complete picture of our extensive and ongoing efforts to achieve a mutual accommodation."

Rosen wrote that 7,558 pages of documents produced by OMB offers a full picture of the office's role in helping to formulate the ozone decision. "There is no legitimate basis to pursue a resolution of contempt," he said.

Documents posted online by the agency show that OMB and EPA disagreed over the need for a secondary ozone standard, causing President Bush to intervene to back OMB's position.

Noting that courts encourage branches of government to seek accommodations to avoid constitutional confrontations, Rosen said "the facts involving the ozone rule are available and the committee has not demonstrated any legitimate need for going beyond the extensive information that was provided."