Environmental Protection Agency Administrator Anne M. Gorsuch will be ordered to appear before the House Energy and Commerce oversight subcommittee as soon as Congress returns in late November to explain why she didn't turn over documents that the committee had subpoenaed on three toxic waste dumps.
Congressional sources said her refusal to provide the documents is another in a series of attempts by the Reagan administration to assert "executive privilege" and withhold documents and enforcement files that have been readily available to House committees in the past.
Committee Chairman John D. Dingell (D-Mich.) said yesterday that the documents are key to an investigation into hazardous-waste enforcement and use of a multibillion-dollar government cleanup fund. The investigation also "involves specific allegations of misconduct and unethical behavior" by an EPA official, he said.
At the center of the controversy is an opinion issued just over a year ago by Attorney General William French Smith, outlining his philosophy on executive privilege. Based on that opinion, Interior Secretary James G. Watt refused in February to turn over documents on mineral leasing to the same subcommittee.
After the subcommittee and then the full panel voted to hold Watt in contempt of Congress, White House counsel Fred Fielding allowed the documents to be turned over.
A report early this month by the full committee took serious issue with Smith's opinion.
"He was disingenuous in his legal analysis, misquoted the Supreme Court to premise a flawed hypothesis, and reached a faulty conclusion, thereby ill-serving the president and the nation by recklessly provoking an unnecessary constitutional confrontation between Congress and the president," the report said.
The report accused Smith of misquoting the Supreme Court ruling in United States v. Nixon in which the court ordered the former president to turn Watergate tapes over to congressional investigators. The opinion said that officials who expect "public dissemination of their remarks may well temper candor with a concern for appearances . . . . " In his defense of executive privilege, Smith quoted the same passage but left out the word "public."
Five committee Democrats went further in their criticism of Smith: "The embarrassingly inadequate legal underpinnings of the administration's position only underline the constitutional illiteracy of this administration in general and these two Cabinet officers in particular . . . . Both Secretary Watt and Attorney General Smith were engaged separately and together . . . in a number of bald attempts to withhold information from the Congress on a myriad of subjects for any and all reasons."
Art Brill, a Justice Department spokesman, said of the attorney general's opinion, "We think it was a very sound opinion. We consider Dingell's attack to be one-sided and slanted." He said that in the EPA case the committee is seeking files on ongoing prosecutions, which he called a "dangerous precedent."
Robert A. McConnell, assistant attorney general for legislative affairs, wrote the committee this month to say that the subpoenaed documents would be "extraordinarily valuable to potential defendants who would wish to frustrate enforcement efforts."
The subcommittee subpoenaed Gorsuch last Thursday after arguing about the documents for a month with lawyers for the Justice Department and the EPA. The subpoena ordered Gorsuch to turn over the files by 4 p.m. Friday or to appear at a hearing yesterday to explain why she didn't comply. None of the files was produced by the Friday deadline.
Dingell allowed the hearing to be postponed because Gorsuch was on the West Coast making a series of speeches.
Subcommittee aides said EPA officials initially expressed a willingness to deliver the files on the government's $1.6 billion Superfund for a confidential review, but the Justice Department intervened.
According to subcommittee aides, EPA counsel Robert M. Perry was directed by a Justice official to turn over to Justice copies of the subpoenaed documents and eliminate copies from the EPA files. Theodore Olson, head of the office of the legal counsel at Justice, denied having given that order.
Committee aides said Perry will be subpoenaed to testify along with Gorsuch.
Justice has offered to allow subcommittee aides to see the files, but not to copy them.
The subcommittee wants to review files in three cases: the Stringfellow acid pits near Glen Avon in Riverside County, Calif.; a site in Tar Creek, Okla., and the Berlin and Farro industrial waste site in Swartz Creek, Mich., northwest of Detroit.