The House Committee on Oversight and Government Reform could vote as early as June 23 on a resolution to hold the Office of Information and Regulatory Affairs administrator in contempt, while House Democrats say no such vote should happen.
At issue is the ongoing conflict over the EPA's regulatory powers of the nation's waterways, and attempts by the Oversight Committee, led by Rep. Jason Chaffetz of Utah, to gain document disclosure from the OIRA within OMB.
OMB provided the committee with more than 13,000 documents June 15, also assuring that it would complete review of the requested documents by no later than June 22. But whether the initial documents are enough to forestall a vote is in question.
The resolution, obtained by Federal Times, would recommend that the House hold OIRA Administrator Howard Shelanski in contempt of Congress, following a year-long battle over the agency's correspondence related to the "Waters of the United States" rule.
Related: Read the resolution
"OIRA and OMB have made great efforts to comply with the committee's unreasonable demands for documents over a nine-year period, yet Republicans leaked a report they knew—they knew—was inaccurate and riddled with errors," Oversight Committee Ranking Member Elijah Cummings, D-Md., said. "I am glad the Republicans canceled their misguided contempt vote for next week, but this leak was a reckless, irresponsible attack intended to get cheap headlines that are not based on facts, and it undermines the integrity, the credibility and the work of our committee."
Despite Cummings' assertions that the vote was off, a committee aide said plans for the resolution are still on, with a possible markup announced by no later than June 20.
An OMB spokeswoman said via email the agency was "surprised both by the timing and the substance" of the Oversight committee's resolution, noting that it already produced 33,000 pages of documents.
"OMB has worked in good faith to respond to the committee's incredibly broad subpoena that spans a more than nine-year period," she said. "In addition to producing tens of thousands of pages of documents, OMB has made multiple employees available for hearings and transcribed interviews. OMB has also consistently advised the committee that it was cooperating and would provide the committee with the information it was seeking.
"We believe there is no basis for the committee to hold the OIRA administrator in contempt."
The WOTUS rule governs what bodies of water the EPA and Army Corps of Engineers have legal authority over to implement Clean Water Act protections. The EPA expanded the scope of the rule in May 2015 to provide more federal authority over rivers, wetlands and marshes following an initial draft rule in 2014.
EPA promulgated the new rule on June 29, 2015, with it scheduled to go into effect on Aug. 28, but 13 states sued to have an injunction placed on the rule on Aug. 27 and a legal battle ensued.
On Oct. 9, 2015, the Sixth Circuit Court of Appeals ordered a nationwide stay of the WOTUS rule while it examined the scope of its enforcement.
The House Oversight Committee began investigating OIRA's role in instituting the rule in March 2015, as it serves as the administration's implementer of federal regulation.
The committee requested all correspondence related to the OIRA's review of the WOTUS rule be delivered to it no later than May 25, 2015, but the resolution claimed that Shelanski refused and that the Office of Management and Budget called the request too broad.
Chaffetz subpoenaed the correspondence on July 14, 2015.
"Mr. Shelanski has failed to comply, and an unknown number of responsive documents are being withheld," the resolution said. "Further, Mr. Shelanski and his staff testified at Committee hearings about their intentions, specifically, that he does not plan to comply with the legal obligation imposed by the Committee's subpoena."
Since the 2015 subpoena, Shelanski has appeared before the committee at hearings in March and April and said that the broad nature of the subpoena has taken time for his staff to compile.
But the committee has said most of the documentation provided by OIRA was filled with duplicates and doesn't cover the scope of the correspondence it has requested.
"To date, OIRA has made 12 limited productions to the committee, the majority of which were produced from a search of only six months of the nine-year rulemaking process," the resolution said.
"Of the 18,896 pages produced to date, over 78 percent (or 14,770 pages) of those are duplicates, including 52 identical copies of the rule itself and ten copies of the rule's economic analysis. In fact, in its largest production to date of 8,570 pages on May 23, 2016, only 50 pages were unique documents that had not previously been produced or otherwise duplicated."
A committee aide said a markup of the resolution could be announced as soon as June 20, but right now, the resolution is expected to move forward.