[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
THE ROLE OF THE EPA OMBUDSMAN IN ADDRESSING CONCERNS OF LOCAL
COMMUNITIES
=======================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON
FINANCE AND HAZARDOUS MATERIALS
and the
SUBCOMMITTEE ON HEALTH AND ENVIRONMENT
of the
COMMITTEE ON COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
OCTOBER 3, 2000
__________
Serial No. 106-161
__________
Printed for the use of the Committee on Commerce
U.S. GOVERNMENT PRINTING OFFICE
67-120 WASHINGTON : 2000
COMMITTEE ON COMMERCE
TOM BLILEY, Virginia, Chairman
W.J. ``BILLY'' TAUZIN, Louisiana JOHN D. DINGELL, Michigan
MICHAEL G. OXLEY, Ohio HENRY A. WAXMAN, California
MICHAEL BILIRAKIS, Florida EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas RALPH M. HALL, Texas
FRED UPTON, Michigan RICK BOUCHER, Virginia
CLIFF STEARNS, Florida EDOLPHUS TOWNS, New York
PAUL E. GILLMOR, Ohio FRANK PALLONE, Jr., New Jersey
Vice Chairman SHERROD BROWN, Ohio
JAMES C. GREENWOOD, Pennsylvania BART GORDON, Tennessee
CHRISTOPHER COX, California PETER DEUTSCH, Florida
NATHAN DEAL, Georgia BOBBY L. RUSH, Illinois
STEVE LARGENT, Oklahoma ANNA G. ESHOO, California
RICHARD BURR, North Carolina RON KLINK, Pennsylvania
BRIAN P. BILBRAY, California BART STUPAK, Michigan
ED WHITFIELD, Kentucky ELIOT L. ENGEL, New York
GREG GANSKE, Iowa TOM SAWYER, Ohio
CHARLIE NORWOOD, Georgia ALBERT R. WYNN, Maryland
TOM A. COBURN, Oklahoma GENE GREEN, Texas
RICK LAZIO, New York KAREN McCARTHY, Missouri
BARBARA CUBIN, Wyoming TED STRICKLAND, Ohio
JAMES E. ROGAN, California DIANA DeGETTE, Colorado
JOHN SHIMKUS, Illinois THOMAS M. BARRETT, Wisconsin
HEATHER WILSON, New Mexico BILL LUTHER, Minnesota
JOHN B. SHADEGG, Arizona LOIS CAPPS, California
CHARLES W. ``CHIP'' PICKERING,
Mississippi
VITO FOSSELLA, New York
ROY BLUNT, Missouri
ED BRYANT, Tennessee
ROBERT L. EHRLICH, Jr., Maryland
James E. Derderian, Chief of Staff
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Finance and Hazardous Materials
MICHAEL G. OXLEY, Ohio, Chairman
W.J. ``BILLY'' TAUZIN, Louisiana EDOLPHUS TOWNS, New York
Vice Chairman PETER DEUTSCH, Florida
PAUL E. GILLMOR, Ohio BART STUPAK, Michigan
JAMES C. GREENWOOD, Pennsylvania ELIOT L. ENGEL, New York
CHRISTOPHER COX, California DIANA DeGETTE, Colorado
STEVE LARGENT, Oklahoma THOMAS M. BARRETT, Wisconsin
BRIAN P. BILBRAY, California BILL LUTHER, Minnesota
GREG GANSKE, Iowa LOIS CAPPS, California
RICK LAZIO, New York EDWARD J. MARKEY, Massachusetts
JOHN SHIMKUS, Illinois RALPH M. HALL, Texas
HEATHER WILSON, New Mexico FRANK PALLONE, Jr., New Jersey
JOHN B. SHADEGG, Arizona BOBBY L. RUSH, Illinois
VITO FOSSELLA, New York JOHN D. DINGELL, Michigan,
ROY BLUNT, Missouri (Ex Officio)
ROBERT L. EHRLICH, Jr., Maryland
TOM BLILEY, Virginia,
(Ex Officio)
(ii)
Subcommittee on Health and Environment
MICHAEL BILIRAKIS, Florida, Chairman
FRED UPTON, Michigan SHERROD BROWN, Ohio
CLIFF STEARNS, Florida HENRY A. WAXMAN, California
JAMES C. GREENWOOD, Pennsylvania FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia PETER DEUTSCH, Florida
RICHARD BURR, North Carolina BART STUPAK, Michigan
BRIAN P. BILBRAY, California GENE GREEN, Texas
ED WHITFIELD, Kentucky TED STRICKLAND, Ohio
GREG GANSKE, Iowa DIANA DeGETTE, Colorado
CHARLIE NORWOOD, Georgia THOMAS M. BARRETT, Wisconsin
TOM A. COBURN, Oklahoma LOIS CAPPS, California
Vice Chairman RALPH M. HALL, Texas
RICK LAZIO, New York EDOLPHUS TOWNS, New York
BARBARA CUBIN, Wyoming ANNA G. ESHOO, California
JOHN B. SHADEGG, Arizona JOHN D. DINGELL, Michigan,
CHARLES W. ``CHIP'' PICKERING, (Ex Officio)
Mississippi
ED BRYANT, Tennessee
TOM BLILEY, Virginia,
(Ex Officio)
(iii)
C O N T E N T S
__________
Page
Testimony of:
Boggiatto, Kimberly.......................................... 101
Bowers, Bret, Executive Director, Community Leaders for EPA
Accountability Now!........................................ 106
Fields, Timothy, Assistant Administrator, Office of Solid
Waste and Emergency Response, U.S. Environmental Protection
Agency..................................................... 39
Martin, Robert, Ombudsman, U.S. Environmental Protection
Agency..................................................... 44
Mosley, Mary................................................. 104
Material submitted for the record:
Dingell, Hon. John D., letter dated October 12, 2000, to
Nikki L. Tinsley, Inspector General, U.S. Environmental
Protection Agency, enclosing questions for the record, and
responses to same.......................................... 159
Shapiro, Michael H., Acting Assistant Administrator, EPA,
letter dated February 5, 2001, enclosing response for the
record, with attachments................................... 136
(v)
THE ROLE OF THE EPA OMBUDSMAN IN ADDRESSING CONCERNS OF LOCAL
COMMUNITIES
----------
TUESDAY, OCTOBER 3, 2000
House of Representatives,
Committee on Commerce,
Subcommittee on Finance and Hazardous
Materials, Joint with
Subcommittee on Health and Environment,
Washington, DC.
The subcommittees met, pursuant to notice, at 10:10 a.m.,
in room 2123, Rayburn House Office Building, Hon. Michael G.
Oxley (Chairman, Subcommittee on Finance and Hazardous
Materials) presiding.
Members present, Subcommittee on Finance and Hazardous
Materials: Representatives Oxley, Largent, Shimkus, Blunt,
Ehrlich, Barrett, and Luther.
Members present, Subcommittee on Health and Environment:
Representatives Bilirakis, Cubin, Bryant, Brown, Green, and
DeGette.
Also present: Representatives Sawyer and Chenoweth-Hage.
Staff present: Robert Meyers, majority counsel; Amit
Sachdev, majority counsel; Robert Simison, legislative clerk;
Richard A. Frandsen, minority counsel; and Sarah A. Keim,
Presidential Management Intern.
Mr. Oxley. The subcommittee will come to order.
The Chair would recognize the cochair of our hearing today,
Chairman Bilirakis, chairman of the Health and Environment
Subcommittee, for an opening statement.
Mr. Bilirakis. Thank you, Mr. Chairman; and I want to thank
you and your staff for your cooperation in holding this
hearing. Your subcommittee has more jurisdiction in this matter
than does ours, but I know that we are all greatly concerned
about this particular issue, and I want to thank you.
I also want to welcome our witnesses and audience to
today's hearing concerning the role of the U.S. Environmental
Protection Agency's national hazardous waste and Superfund
Ombudsman in addressing concerns of local communities.
Today, we will seek to address several basic questions.
First, we are interested in understanding the Office of the
Ombudsman's interaction with the general public, as well as the
relationship between this office and other offices within EPA.
We are interested in hearing the services which the Office of
the Ombudsman provides and whether the office is allowed
sufficient independence. We are also interested in Assistant
Administrator Fields' view of the Office of the Ombudsman and
what EPA considers to be the permissible functions of the
office.
One of EPA's stated goals is to ensure, and I am quoting,
that all parts of society--communities, individuals, business,
State and local government and tribal governments--have access
to accurate information sufficient to effectively participate
in managing human health and environmental risks, end quote.
Unfortunately, many citizens around the country would
contend that EPA has failed in its relationship with local
communities.
Chairman Oxley and I requested this joint hearing after
becoming acquainted with several instances in which communities
were unhappy with the EPA's responsiveness to their needs,
particularly with regard to Superfund sites. In many cases, the
EPA Ombudsman has become involved and opened up avenues of
communication for the public's concerns to be taken into
consideration. I have received letters from people all over the
United States expressing their support for the EPA Ombudsman. I
have those letters bundled, Mr. Chairman, and I ask unanimous
consent to enter these into the record.
Mr. Oxley. Without objection.
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Mr. Bilirakis. Mr. Chairman, I have also experienced the
work of the Ombudsman firsthand at the Stauffer Superfund site
in my hometown of Tarpon Springs, Florida. At this site it
became increasingly clear over several years that many of my
constituents were shut out of the cleanup process. They felt
that their concerns were not heard by EPA officials in charge
of the site. Therefore, at my request, the EPA Ombudsman is
conducting an independent review of the Stauffer cleanup plant.
To date, public meetings with the Ombudsman have successfully
highlighted the need for additional scientific studies and
increased local residents' confidence in the Superfund process.
My concern is to ensure that the Ombudsman's Office is
allowed to continue to provide assistance to local communities
in holding EPA accountable. While EPA officials have publicly
and privately assured me of their full support for the
Ombudsman's efforts, their actions suggest a different
attitude. Over the past several months, EPA and Justice
Department officials have nearly derailed the Ombudsman's
investigation of the Stauffer site and other cases.
Shortly before a scheduled public meeting in June of this
year, EPA national officials indicated to the Ombudsman that
insufficient funds were available for him to continue his
investigation at the Stauffer site. Only after Chairman Oxley,
Chairman Tauzin and I intervened did the Agency make a
commitment to provide the necessary resources.
At the June meeting in Tarpon Springs, Florida, EPA Region
4 representatives made a brief presentation regarding the
Stauffer site. After only 10 minutes they abruptly walked out
in the middle of a question. Naturally, my constituents and I
were outraged by this display of contempt, dare I say
arrogance, on the part of EPA representatives.
While I am certainly concerned about the Stauffer site and
the well-being of my constituents, my experiences, Mr.
Chairman, also led me the to question whether Stauffer is an
isolated case or is symptomatic of local concerns across the
country; and that is the key point of this hearing. Are
Stauffer and the other sites where the Ombudsman has been
involved isolated cases or do they represent just the tip of
the iceberg? Are we dealing with a true exceptional case or is
this business as usual at the EPA?
At this point, Mr. Chairman, I would like to extend a very
warm welcome to one of my constituents, Mary Mosley, a Tarpon
Springs resident and former city commissioner. Ms. Mosley will
testify in more detail about the EPA and the Ombudsman's
involvement in the Stauffer case. We look forward to hearing
her statement as well as the statements of the other citizen
witnesses, Mr. Bret Bowers from Coeur d'Alene, Idaho, and Ms.
Kimberly Boggiatto from Denver, Colorado. I want to thank you
all for your time and effort in traveling to testify here
today.
I also want to welcome, Mr. Chairman, Mr. Timothy Fields,
Assistant Administrator of EPA's Office of Solid Waste and
Emergency Response, and also the Ombudsman, Mr. Robert Martin.
Mr. Fields is no stranger to this committee, and I know we all
look forward to hearing the administration's views on the role
of the Office of the Ombudsman and its relationship with EPA.
Thank you, Mr. Chairman.
Mr. Oxley. I thank the gentleman and now recognize the
ranking member for the Health and Environment Subcommittee,
gentleman from Ohio, Mr. Brown.
Mr. Brown. Thank you, Mr. Chairman.
Today we are holding an oversight hearing on the Office of
the Ombudsman at the EPA. This office was created 16 years ago
with the passage of the Hazardous and Solid Waste Amendments of
1984.
The function of the EPA Ombudsman is to receive individual
complaints, grievances and requests for information submitted
by any person with respect to the hazardous waste program, to
render assistance and to make appropriate recommendations to
the EPA administrator. I support the function of the Ombudsman.
People need a place to go if an agency bureaucracy is not
responding to inquiries from the public and is not functioning
in an open manner. The Ombudsman provides an opportunity for
citizens to express their views and a channel for those views
to be taken into consideration.
The Ombudsman is currently involved in 14 cases around the
country, including two in my own State of Ohio. To
appropriately and effectively fulfill the function of the
office, the Ombudsman must also perform his duties impartially
and responsibly, gathering facts and information in an
objective manner and treat all parties, including employees of
the executive branch, fairly.
I welcome our witnesses today and look forward to their
testimony.
Mr. Oxley. I thank the gentleman.
The Chair would now recognize himself for an opening
statement; and I am also pleased to be holding the joint
subcommittee hearing today with my colleague, Mr. Bilirakis,
chairman of the Health and Environment Subcommittee, on the
role of the EPA Ombudsman in addressing concerns of local
communities. This is a hearing that goes to the heart of the
public's faith in government. People who live near Superfund
sites have turned to the government for explanations on health.
Responsiveness of EPA to these citizens has been a concern of
my mine for a long time.
With the goal of promoting faster and safer cleanups, I,
along with many colleagues, have introduced Superfund reform
bills that would increase local participation in the remedy
selection process and that would make community involvement a
more integral part of EPA's cleanup criteria.
The Ombudsman's Office within EPA plays an important role.
It serves as a citizen watchdog and as a backstop to ensure
that the best decisions are being made for their community.
Trust in the process is heightened when people know they have
an independent voice to closely examine an agency decision.
Mistrust often leads to controversy and cleanup delays.
Therefore, I was very disturbed when my friend Mr.
Bilirakis told me that EPA appears to be impeding the helpful
work that the Ombudsman's Office has been doing in his
District. We had a telephone conversation with Administrator
Browner on that subject. Yet that conversation did not prevent
the inexcusable conduct of regional EPA personnel who
subsequently walked out of a public meeting in my colleague's
district. Since then I have learned of a Department of Justice
letter that threatens to disrupt the Ombudsman's investigative
work at the Coeur d'Alene site in Idaho.
These situations speak directly to the independence of the
Ombudsman and to the credibility of the Agency. No one, not
elected officials, not appointed agency bureaucrats, should be
afraid to have their decisions subjected to public scrutiny.
I look forward to hearing firsthand from the citizens who
have been dealing with EPA and the Ombudsman regarding
Superfund sites in their community. I will be looking for EPA
assurances that the Ombudsman's Office has the resources and
the independence to play a constructive role in communities
with Superfund sites.
I welcome our witnesses today--Mr. Fields, welcome back to
the subcommittee; we are looking forward to your testimony--and
now recognize the gentleman from Ohio, Mr. Sawyer.
Mr. Sawyer. Thank you, Mr. Chairman. Although I am not a
member of either subcommittee, I do serve with you on the full
committee; and I appreciate your forbearance in allowing me to
take part in these hearings today. I have a statement I will
submit for the record. I look forward to hearing from our
witnesses.
Mr. Oxley. We thank you for your participation.
Are there other opening statements?
The gentleman from Illinois, Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. Thank you for holding
this very important hearing.
You know this is an issue that--not just the Ombudsman but
small business regulatory relief is something near and dear to
my heart. Since February 1999, I have been working to help 159
innocent small businesses in Quincy, Illinois, to obtain
freedom from the Superfund litigation nightmare. And it has
been a nightmare, and it continues to be a nightmare.
Last week, when the EPA Administrator Carol Browner
disproved the Small Business Liability Relief Act, killed its
chances in the House and the measure failed, I lost all faith
that EPA really wanted to work toward small business relief.
Yesterday, when I heard the Keystone Pennsylvania lawsuit
had settled and the EPA was touting a small business victory, I
was appalled but not surprised that the settlement explicitly
preserves waste management's lawsuit against Barbara Williams,
another famous name in the fight against the bureaucracy,
restaurateur from Gettysburg, Pennsylvania. I just wish
Chairman Goodling was here to join us, the restaurant owner who
we all heard about numerous times.
Let me read from some of the release of the EPA: EPA is
pleased to conclude this extensive, expensive and contentious
litigation. That is why we need Superfund reform--because it is
expensive, extensive and contentious.
Here's another quote from their release: But Congress still
needs to address the basic deficiency in the Superfund law
which allowed this huge number of defendants to be sued. Hence,
House Resolution 5175 which the EPA fought to defeat on the
floor.
Also, listen to this, the part of the release: When the
United States sued 11 parties, these parties then sued 130
additional parties, and these 130 additional parties sued 500
additional parties. That is the problem with--that is why we
need Superfund reform.
I understand this hearing is to investigate the role of the
EPA Ombudsman and addressing concerns of local communities. I
would just ask, where were you in Quincy, Illinois?
I look forward to hearing about how the office has been
successful, and I am sure we will hear where it has failed. And
I will look for asking questions of how it can be improved so
that you know the people who are caught in this type of
litigation trap can get some relief from the Federal
Government.
I want to welcome the two panels. I do appreciate you
coming.
Mr. Chairman, I thank you for calling the hearing. I
appreciate Chairman Bilirakis also being here, and I yield back
the balance of my time.
Mr. Oxley. Gentleman yields back.
The gentlelady from Colorado.
Ms. DeGette. Thank you, Mr. Chairman.
I would like to, first of all, welcome Kim Boggiatto for
being here today. She is a resident of the Overland Park
community in my home city of Denver and was instrumentally
involved in successful efforts to force the Environmental
Protection Agency to remove radioactive wastes from the
Shattuck Superfund site in Denver, Colorado, which both Mr.
Fields and Mr. Martin have extensive experience with; and I am
glad to see them here with us today as well. I am really
pleased to have her insight on the role of the EPA Ombudsman's
Office today.
Since 1986, the residents of Overland Park community in
Denver have tried to get the Environmental Protection Agency
and other responsible parties to remove radioactive wastes from
the Shattuck Superfund site. Today, that waste still is in the
middle of a residential neighborhood. Radioactive soil in the
area was mixed with fly ash, then clay and covered with a pile
of rock. A study released in September 1999 by the EPA's 5-year
review panel confirmed what residents of Overland Park had been
saying for years, we cannot be sure that the entombment of
radioactive dirt at the Shattuck Superfund site will protect
human health and the environment.
Thanks to the diligent efforts of the neighborhood
association cleanup, many devoted citizens and the joint
efforts of the elected officials, both city, State and Federal,
the EPA announced June 16 of this year that the waste will be
removed. However, questions continue to arise about what the
Agency and the parties involved in the Shattuck site knew about
the characteristics of the waste and when they knew it.
Most recently, the Department of Energy revealed, for
example, that the Shattuck Chemical Company was one of hundreds
of companies that it secretly contracted with to do nuclear
weapons work in the 1940's and 1950's to process radioactive
and toxic materials. During the discussions concerning
reopening the Shattuck chemical site record of decision, it was
well-known that the Shattuck facility did receive radioactive
waste from the Federal Government. However, a full accounting
of what waste the Shattuck site accepted and disposed of has
been impossible because of missing and inadequate records.
The DOE's disclosure is troubling but not perhaps
surprising to those of us who have been involved with the site.
I will reiterate today what I said to Mr. Fields in a letter
last month upon learning of the DOE report, which is that the
citizens who have worked so long to see this waste removed have
a right to expect that the EPA's promise to move the waste in a
timely fashion will be fulfilled. While I think that there
needs to be additional investigation into some of these sites,
we cannot use it as an excuse to leave this waste onsite.
I sound like a broken record. I have no doubt that the
government intends to move it, but I think we all need to be
ever vigilant to make sure that the poor decision is reversed
and that this waste is removed.
The EPA Ombudsman's Office played an important role in
securing the EPA's commitment to remove the waste by providing
the community with the resources and advocacy to compel the
Agency to act. The independent oversight provided by an
Ombudsman's Office is essential to provide individuals and
communities like Overland Park with an additional voice and an
additional advocate inside an agency like the EPA, particularly
in cases like Shattuck where you are looking at questionable
decisions by a Federal agency.
The role of the Ombudsman must, therefore, be preserved to
ensure that Federal agencies have an internal mechanism that
will be vigilant and make sure that agencies act in the best
interests of the public. The public needs a resource to help
interface with the Federal Government to help obtain
information and to investigate potential malfeasance or remedy
inefficiencies. It is equally important for the Ombudsman's
Office to uphold the highest ethical standards because, after
all, this is the office responsible for maintaining the
integrity and the mission of the Agency.
Mr. Chairman, I want to thank you for having this hearing.
I want to congratulate again Clean-It! and the neighbors and
also the EPA Ombudsman for coming to the right decision in the
Shattuck site, and I yield back anytime I might have left.
Mr. Oxley. Further opening statements?
The gentleman from Missouri, Mr. Blunt.
Mr. Blunt. Thank you, Mr. Chairman. Thank you for holding
this hearing and particularly for focusing on the role of the
Ombudsman in solving problems and eliminating needless problems
for people who are caught in the periphery of legitimate EPA
actions.
As you know, Mr. Chairman, the office of ombudsman's
authority expired in 1988. I think that is why this hearing
would be particularly helpful to determine how the exiting
system is working, what we need to do to reauthorize in the
best possible way a system that meets the needs of people who
are again caught on the edges of EPA decisionmaking.
We took a bill to the floor recently that was designed to
eliminate problems for third-party defendants. That bill was
opposed by the Agency. Hopefully, we can even hear some of the
reasons that that happened and what we can do effectively to
solve the kinds of problems that have been mentioned by my
colleagues here today and the individual trauma, cost and
devastation that can be created by misguided and misdirected
targeting on the part of the EPA and what the Ombudsman's
Office can do to see that that doesn't happen and to help third
parties extricate themselves from this kind of involvement.
I am glad you have held this hearing. I look forward to the
testimony and to the questions.
Mr. Oxley. Further opening statements?
Mr. Green will submit a statement.
Other opening statements?
[Additional statements submitted for the record follow:]
Prepared Statement of Hon. Paul Gillmor, a Representative in Congress
from the State of Ohio
Mr. Chairman, I want to thank you for calling this hearing on the
role of the Environmental Protection Agency (EPA) Ombudsman in
addressing local concerns. It is essential that governmental agencies
are responsive to the needs of the citizens that support them.
The role of the EPA ombudsman was created in 1984 in the Hazardous
Waste and Solid Waste Amendments. This position was established to
create a place where people could issue complaints and request
information on the various programs that EPA operates. Even more so,
while the ombudsman was not supposed to be a policy or decision-maker,
the position did allow the ombudsman to make suggestions directly to
the EPA Administrator. The job of Ombudsman was, statutorily, intended
to end in November of 1988.
Over the last 12 years, Congress has continually funded this
office. As I have had a long-standing interest in the operations of the
EPA, I am intensely curious in knowing whether the Ombudsman's response
to the public and its role as liaison and citizen advocate is
justifying its continued existence. Particularly as the ombudsman's
place in the Superfund debate in concerned, I want to know whether the
people that have used the EPA ombudsman's office feel they have
received an appropriate response. I look forward to their testimony
today.
Mr. Chairman, I believe today's hearing offers us a chance to
answer a couple of important questions about the role of ombudsmen in
our governmental system. First, while the position of ombudsman was
first created over two hundred years ago, why did the United States
wait until ten years ago to consider it an important position for our
government? Second, the ombudsman is supposed to be a job which is
independent of politics and the Executive Agency it is supposed to
serve, does this separation between politics, policy, and performance
still exist. Third, as Superfund is probably one of the EPA programs
that receives greater community attention than some of the others, how
has the EPA ombudsman responded at specific Superfund sites? And last,
since the EPA ombudsman has operated without a congressional
authorization for many years, should this program be affirmed with a
reauthorization or cancelled entirely?
I look forward to the testimony and comments of our two panels and
thank you, Mr. Chairman, for bring attention to this important issue.
______
PREPARED STATEMENT OF HON. TOM BLILEY, CHAIRMAN, COMMITTEE ON COMMERCE
Mr. Chairman, I want to thank you for holding this Subcommittee
hearing today about the role of the EPA Ombudsman in helping local
citizens get answers from EPA about Superfund sites in their
communities.
As I have said many times over the past eight years, the Superfund
law and the Superfund program administered by EPA remain badly broken.
As a result, many Superfund cleanups take too long to complete and cost
too much. Even worse, as we have heard from scores of witnesses, one of
the biggest problems with Superfund has to do with all the lawyers. For
years the program has been inefficient because of the wasted time and
resources as a result of waves of litigation, lawyer fees, excessive
administrative costs and outrageous overhead.
Often the people that stand to suffer the most are citizens who
live in communities across the country that are located near Superfund
sites. Today, I am pleased that we will hear from some of these
residents concerning their experiences with the Superfund program, with
EPA, and with the Superfund Ombudsman.
The Ombudsman was created by law to ensure that affected the
citizens would have a ``lifeline'' within EPA. To be effective,
Ombudsman must be there to help at times when citizens have difficulty
getting their voices heard within the maze of federal bureaucracy. And
the Ombudsman must be able to help bring forward legitimate concerns
when the government creates bureaucratic obstacles that hinder adequate
public participation and ultimately delay cleanups.
I look forward to today's hearing to assess the effectiveness of
the Superfund Ombudsman over the years, and identify areas in which
improvements are needed. I welcome each of the witnesses, especially
the citizens who have traveled a great distance to be here today, and
look forward to their testimony.
Mr. Oxley. Let me recognize now our distinguished colleague
from Idaho who has joined us today for the committee hearing
and obviously has a particular interest in the Coeur d'Alene
site, Mrs. Chenoweth-Hage.
Mrs. Chenoweth-Hage. Mr. Chairman, I want to thank you and
Chairman Bilirakis very much for giving me the opportunity to
participate with your committee in this hearing today, and I
commend you both for your tremendous leadership on this issue.
You have been a godsend to those of us who have labored and
labored under the EPA up in northern Idaho.
I want to especially thank all the members of panel No. 2
for coming so far at their own expense. I look forward to
hearing the testimony of Bret Bowers from Coeur d'Alene who
will speak on this issue, and he also has a short film that
would be most interesting to the committee if he is allowed to
show it.
If there was ever an example, Mr. Chairman, of the need for
an independent Ombudsman process to keep a check on the EPA,
that example exists in northern Idaho. Now picture this: A
beautiful, picturesque lake whose water measures above drinking
water standards is the place where this out-of-control agency
is treating this area as if it is a toxic waste dump, and yet
we just heard the testimony from my colleague from Denver about
the refusal to clean up the Shattuck Superfund site or their
drawing out the process.
So on one end we have a beautiful lake that measures above
drinking water standards that they want to make a toxic waste
dump, yet we had the Shattuck situation over here where they
drug their heels.
Obviously, I can spend several hours today going over with
you the numerous abuses, whether it be livestock feeder areas
or whatever it might be, but the fines, the misrepresentations
that the people of my district have experienced at the hands of
the EPA--in fact, I have for years investigated the issue
involving the North Idaho Lake Coeur d'Alene Superfund area.
The bottom line is that the Agency has created a tremendously
drastic solution in search of a problem up there. It is a
beautiful area to live, and they can't find the problem, and it
is leading to havoc and distress in the communities spread
throughout the whole Coeur d'Alene basin.
Mr. Chairman, I have worked for years to expose the
misdirected policies by the Federal Government in that basin,
but I strongly believe that only when the Ombudsman Bob Martin
and his chief investigator Hugh Kaufman entered into this
process at our request that we achieved a breakthrough on this
issue, and your direct intervention--yours and Chairman
Bilirakis's--certainly helped to elevate this issue.
The sole purpose of the Ombudsman from the very beginning
has been to get to the truth of this matter, asserting that by
only finding the truth can we make good public policy and not
harm the citizens that we are meant to serve. They have not
been afraid to ask the tough questions, as you will see in the
film, no matter what threats they are receiving from their own
agency or even from the U.S. Justice Department.
Mr. Chairman, as you will hear about today, in August of
this year, Mr. Martin and Mr. Kaufman conducted a 15-hour
hearing in Idaho on the Superfund issue, finally bringing to
the surface many troubling questions that have plagued this
area. So, as a result, we are working together and we are
forcing EPA to answer some very important and critical
questions.
Mr. Chairman, I have more in my opening statement. I would
like to submit it for the record.
At this time, I will yield back the balance of my time.
Thank you.
Mr. Oxley. Gentlelady's full statement will be made part of
the record, without objection.
[The prepared statement of Hon. Helen Chenoweth-Hage
follows:]
PREPARED STATEMENT OF HON. HELEN CHENOWETH-HAGE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF IDAHO
Mr. Chairman, I want to first thank you and Chairman Mike Bilirakis
for giving me the opportunity to participate in today's hearing. I
commend you both for your tremendous leadership on this issue. I am
confident that because of your efforts the EPA will change the way that
it does business.
I also want to especially thank Bret Bowers, a constituent of mine
from Coeur d' Alene, Idaho, who has come to testify about the ombudsman
process in Northern Idaho. I encourage the Committee to pay close
attention to his testimony. He is a vocal leader on this issue and
knows first hand the harms of EPA policy in the region, and the need
for an ombudsman process.
Mr. Chairman, if there was ever an example of the need for an
independent ombudsman process to keep a check on the EPA, that example
exists in northern Idaho--where this out-of-control agency is treating
one of the most beautiful river basins in the country as if it were a
toxic waste dump.
I could spend several hours today going over with you the numerous
abuses and misrepresentations that the people of northern Idaho have
experienced at the hands of the EPA. In fact, I have for years
investigated this issue. The bottom line is that the agency has created
a drastic solution in search of a problem--and it is leading to havoc
and distress in the communities spread throughout the Coeur d'Alene
Basin.
Mr. Chairman, I have worked for years to expose the misdirected
policies by the federal government in the Basin. But I strongly believe
that when the Ombudsman, Bob Martin, and his Chief Investigator, Hugh
Kauffman, entered into the process at our request, we achieved a break
through on this issue. Their sole purpose has from the very beginning
has been to get to the truth of this matter, asserting that by only
finding the truth can we make good public policy and not harm the
citizens we are meant to serve. They have not been afraid to ask the
tough questions, no matter what threats they are receiving from their
own agency or even from the U.S. Justice Department.
Mr. Chairman, as you will hear about today, in August of this year
Mr. Martin and Mr. Kauffman conducted a fifteen hour hearing in Idaho
on the Superfund issue, finally bringing to the surface many troubling
questions that have plagued this issue for years but have received
little attention.
As a result of their work, we are finally forcing the EPA to answer
these questions. For instance, why did the EPA prepare a plan to take
over a private mine without even informing the owner of the mine? Or,
why has the agency not even considered the bioavailability of lead in
determining the health and environmental hazards of mixture of minerals
in the soil? Why has the agency not tested for the natural occurrence
of lead in this mineral rich area? Why does it continue to push for an
expansion of the process when there are no discernible health and
environmental problems? What did the agency do with $80 million worth
of Indium?
Mr. Chairman, shutting this process down before we have had a
chance to answer these and many other critical questions would be
nothing short of irresponsible, costly and even tragic. For the sake of
the numerous impacted communities throughout this nation, this $7
billion dollar agency requires an independent investigatory wing--with
much more resources than a shoestring budge of $300,000 and a couple of
public servants expected to cover several investigations at once. I
strongly encourage the committee to support an independent ombudsman
process, and keep these numerous governmental abuses of the people at
bay. Again, I thank you for giving me the opportunity to be here today.
Mr. Oxley. Are there other opening statements?
If not, we now recognize the aforementioned Mr. Tim Fields,
Assistant Administrator for the Office of Solid Waste and
Emergency Response with U.S. EPA, and Mr. Robert Martin, the
Ombudsman with U.S. EPA, as well. Gentlemen, welcome.
Mr. Fields, we will begin with you.
STATEMENTS OF TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR,
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S.
ENVIRONMENTAL PROTECTION AGENCY; AND ROBERT MARTIN, OMBUDSMAN,
U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. Fields. Thank you, Mr. Chairman. It is a pleasure to be
here today before both of your subcommittees to talk about this
very important topic, namely the functions of the OSWER
Ombudsman at EPA.
I am pleased to be here with Mr. Robert J. Martin, the
National Ombudsman for the EPA Office of Solid Waste and
Emergency Response; and I would like to start by just giving a
brief summary of how this function has evolved over the years
since Congress enacted it in legislation in 1984 as part of the
amendments to the Resource Conservation and Recovery Act.
That office was established to address public inquiries or
complaints regarding the Resource Conservation and Recovery Act
of that time. The statutory authority did expire about 5 years
later and EPA, though, believed the function was very valuable
so we agreed to continue this function as a part of EPA's
operation, even though the congressional mandate had expired.
In 1991, the Office of Solid Waste and Emergency Response
expanded the functions of the Ombudsman to include not just the
RCRA hazardous waste and solid waste programs but also
Superfund, underground storage tanks and other elements of our
national environmental cleanup and waste management program.
In 1995, the Administrator of the EPA, Carol Browner,
announced an administrative reform to create 10 Regional
Ombudsmen in our 10 regions that would be there to respond
locally to public inquiries or concerns as well.
We fully support the National Ombudsman function in
headquarters. That is why, when the statutory mandate for this
expired more than 11 years ago, we agreed to continue it and
have since that time.
To address the evolution of the Ombudsman function, though,
which has expanded in authority based on our administrative
policy to do so, we have tried to promote coordination between
the National Ombudsman and the 10 Regional Ombudsmen that exist
in the 10 EPA regional offices..
We are now developing new program guidance to supplement
and update the outdated Hazardous Waste Ombudsman Handbook
which we have been operating under since 1987. A work group was
convened last year, including the National Ombudsman Bob
Martin, some of the Regional Ombudsmen, other headquarters and
regional officials of EPA, to develop an updated guidance
document. The guidance is undergoing internal EPA review at the
current time, and we hope to publish this in the Federal
Register in the next several weeks, making it available for
public comment for 60 days. We then intend to finalize this new
updated Ombudsman guidance in terms of how the EPA Ombudsman
both in headquarters and our regions would operate. The Agency
plans to also publish this draft guidance on our EPA Web site
to make it more available to the public as well.
Today, the National Ombudsman responds to numerous
inquiries and complaints about programs administered by our
waste programs and environmental cleanup programs both in
headquarters and the regions. For the most part, the National
Ombudsman obviously handles cases of national significance or
cases where there is an actual or perceived conflict of
interest on the part of a Regional Ombudsman. The ombudsman's
role is primarily to focus on the Agency's practices and
procedures and how citizens or other interested parties have
been treated under those practices and procedures.
The Ombudsman strives to encourage and promote changes to
policy, practices and procedures that will both impact and
address the concerns of individuals as well as the community as
a whole. I think the Ombudsman has been very successful at
doing that over the years.
The Ombudsman has a wide latitude in terms of selecting and
investigating complaints. The Office of Solid Waste and
Emergency Response recognizes the importance of the Ombudsman
function, and we want to try to make it as independent to the
maximum extent possible under our laws and regulations.
EPA steadily over the years increased the funding for the
Ombudsman function, and we continue to provide support to not
only the National Ombudsman but also additional support to the
10 Regional Ombudsmen as well, to the tune of about a million
dollars a year.
I believe the Ombudsman program is operating very
successfully. I recognize it can operate even better. I assure
you that the Agency will continue to support the Ombudsman
function, irrespective of whether new legislation is enacted or
not. We intend to continue to provide resources to make the
function capable of assisting communities across the country as
it has in the past.
I look forward to responding to questions that the
subcommittees may have on this. I think we share a common goal
with the two subcommittees convened today and Mr. Martin, which
is to make the Ombudsman function as effective and efficient as
it can be so that we can meet the needs of citizens across this
country.
Thank you very much, Mr. Chairman.
[The prepared statement of Timothy Fields, Jr. follows:]
PREPARED STATEMENT OF TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR,
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION
AGENCY
INTRODUCTION
Good morning, I am Timothy Fields, Jr., Assistant Administrator for
the Office of Solid Waste and Emergency Response (OSWER) at the
Environmental Protection Agency (EPA). I am accompanied this morning by
Mr. Robert J. Martin, the OSWER National Ombudsman. Mr. Martin and I
want to thank the Committee for the opportunity to appear before you
today to discuss the national EPA Ombudsman program
HISTORICAL BACKGROUND OF THE OMBUDSMAN
The hazardous and solid waste management laws passed by Congress
created some of the most complex programs administered by EPA and the
States. Recognizing this, Congress established a National Ombudsman
function in 1984 as part of amendments to the Resource Conservation and
Recovery Act (RCRA). Establishing an Ombudsman provided the public with
someone to contact with questions and concerns about the RCRA program.
When the statutory authority for the National Ombudsman program expired
in 1989, EPA's OSWER retained the function as a matter of policy. In
1991, OSWER broadened the National Ombudsman's scope of activity to
include other programs administered by OSWER, particularly the
Superfund program. The National Ombudsman is located in the EPA
Headquarters office in Washington, D.C. and reports directly to the
Principal Deputy Assistant Administrator for Solid Waste and Emergency
Response.
The Ombudsman is authorized to provide information and investigate
complaints and grievances related to OSWER's administration of the
hazardous substance and hazardous and solid waste programs implemented
under the following authorities:
Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) or Superfund;
Resource Conservation and Recovery Act (RCRA), including UST;
Emergency Planning and Community Right-To-Know Act (EPCRA) or
Superfund Amendments and Reauthorization Act, Title III;
Oil Pollution Act; and
Clean Air Act, Section 112(r).
In 1995, a Regional Ombudsman position was created in each EPA
Regional office as part of the Agency's Superfund Administrative
Reforms effort. On June 4, 1996, Administrator Browner formally
announced the appointments of the Regional Ombudsmen. The Regional
Ombudsmen program, at a minimum, operates in support of the Superfund
program. Depending on the Region, however, the Regional Ombudsman may
also provide support to other programs, including RCRA, Underground
Storage Tanks (UST), and chemical emergency prevention and
preparedness.
We fully support the National Ombudsman program under the
jurisdiction of the Assistant Administrator for OSWER. We believe that
the Ombudsman function is a very important one for the Agency and the
public. That is why when the statutory authorization for the Hazardous
Waste Ombudsman function expired, EPA chose administratively to
maintain the Ombudsman function and broaden the scope of the function.
PURPOSE AND STATUS OF DRAFT GUIDANCE
Soon after Congress established the Ombudsman program, the Agency
issued the Hazardous Waste Ombudsman Handbook to help the newly created
National and Regional Ombudsmen administer, and the public understand
what to expect from, the Ombudsman program. During the initial years of
the Ombudsman program, most of the assistance sought by the public was
for help understanding the complicated RCRA program. The Ombudsmen
spent most of their time responding to general questions and directing
requests to the appropriate sources. The handbook reflected this role.
Over the years, the public gained a better understanding of EPA's
hazardous waste programs. Requests for answers to basic questions
became requests for resolution of complaints. The Ombudsman function
has evolved to reflect the changing needs of its clients. The existing
guidance no longer reflects the evolution of the Ombudsman function. In
the Fall of 1999, the Assistant Administrator of OSWER established an
internal EPA workgroup to look at updating the Hazardous Waste
Ombudsman Handbook. The workgroup, chaired by Michael Shapiro,
Principal Deputy Assistant Administrator for OSWER, includes several
Regional Ombudsmen, the National Ombudsman, representatives from the
Office of General Counsel, the Office of Inspector General, the Office
of Enforcement and Compliance Assurance and several senior Regional
Managers. In preparing the updated guidance, the workgroup met with
representatives of the U.S. Ombudsman Association and evaluated and
considered guidance documents from this organization as well as other
organizations with Ombudsman programs and the American Bar
Association's draft Standards for the Establishment and Operation of
Ombudsman Offices. The workgroup has attempted to draft guidance which
reflects key aspects of various external models in a manner that works
for a civil service position within the Federal structure. We believe
the draft guidance will provide for effective and fair implementation
of OSWER's Ombudsman program.
The updated guidance will explain to the public the role of the
National Hazardous Waste and Superfund Ombudsman and Regional Superfund
Ombudsmen today, their scope of activity, and the guidelines under
which they coordinate and carry out their responsibilities. The main
objective in issuing this guidance is to improve the effectiveness of
the program by giving the Ombudsmen, and those who may contact them, a
clear and consistent set of operating expectations and policies.
The guidance is currently undergoing internal Agency review. The
Agency expects this review to be completed in the next several weeks.
EPA will then publish a notice in the Federal Register announcing the
availability of the draft document and requesting public comment. I am
anticipating a public comment period of 60 days. The Agency also plans
to make the draft guidance available on EPA's internet website.
I will now share with you the Agency experience with the operation
and role of the National and Regional Ombudsmen.
THE ROLE OF THE OMBUDSMAN
The Ombudsman is the Agency official designated to receive
inquiries and complaints about the administration of an OSWER program.
It is important to note, however, that the role of the Ombudsman is not
that of decision-maker nor of a substantive expert for the Agency. The
Ombudsman's role is primarily to focus on the Agency's procedures and
how citizens and other interested parties have been treated under those
procedures.
The Ombudsman is not an advocate for a community or any person or
institution. Rather, the Ombudsman encourages and promotes changes he/
she believes will serve both the individual and the public interest.
The Ombudsman seeks to reform and improve management practices,
policies, or administration of such policies that he/she believes are
inefficient or unfair and that may have given or may give rise to a
complaint.
Generally, the National Ombudsman handles cases of national
significance and/or cases of actual or perceived conflict of interest
on the part of the Regional Ombudsman. The Regional Ombudsmen handle
the more routine requests for assistance and conduct more informal
inquiries to investigate complaints. Nevertheless, the Ombudsmen may be
called upon to serve in a number of capacities: 1) providing
information and facilitating informal contact with EPA staff, 2)
conducting informal fact finding inquiries and developing options to
deal with difficult problems, 3) helping to mediate disputes, and 4)
making recommendations to Agency senior management regarding procedural
and policy changes that will improve the program. The goal of the
Ombudsman is to respond to requests in an appropriate and objective
manner as promptly, informally and privately as possible.
Providing Information
Many members of the public and regulated community either do not
know how to get information about the solid and hazardous waste
programs in OSWER or feel frustrated in their attempts to cope with the
complexities of these programs. The Ombudsman may be asked to help a
citizen understand how EPA operates, what the appropriate laws, rules,
or policies are, or how a citizen may directly handle a complaint. The
Ombudsman may answer general questions about any of the programs
administered by OSWER, or may direct the person to the appropriate EPA
staff to answer the questions. The Ombudsman may also facilitate the
communication between a requester and EPA staff. In doing so, the
Ombudsman assists members of the public to gain access to information
about the solid and hazardous waste program that will help them
participate more fully in established Agency processes.
Conducting Inquiries
The Ombudsman may look into a requestor's concerns with respect to
any program or requirement under the solid and hazardous waste programs
implemented by OSWER. The purpose of such an inquiry will be to
ascertain the facts of the case and the perspectives of all the
involved parties. Since the Ombudsman has no direct decision-making
authority, if he/she finds that a policy or procedure has not been
properly followed or someone has not been treated fairly, he/she may
make recommendations to the appropriate Agency officials. In such
cases, the Ombudsman will generally issue a report explaining the
findings and supporting the recommendations made. The officials who
administer activities being criticized will be given a chance to review
the report prior to its release and attach comments to it.
Mediating Disputes
Many of the issues brought to the attention of the Ombudsman may be
resolved through facilitated communication or informal mediation, with
the Ombudsman serving in the capacity of a neutral third party. It is
almost always in the best interests of those who ask the Ombudsman for
assistance and the Agency if a mutually agreeable solution can be
found. If the circumstances seem favorable, the Ombudsman will work
with the parties and help them move toward agreement. The role of the
Ombudsman is not to advocate for a particular outcome, but to try to
increase understanding and to assist in the search for appropriate ways
to reach closure.
Unlike formal mediation, the Ombudsman always retains the
discretion to limit the issues which will be considered (in formal
mediation the issues to be discussed are left to the parties to
decide). Also, unlike formal mediation, the Ombudsman is as concerned
about identifying and encouraging needed institutional reforms as in
solving a specific problem.
Encouraging Institutional Reform
The Ombudsman is in a unique position to improve the management and
implementation of the OSWER-related programs. On a regular basis, he/
she hears issues, concerns and criticisms of the programs from a wide
variety of sources. From this, he/she may identify policies and
procedures which are causing problems as well as opportunities for
making program operations more efficient or effective. Alerting senior
EPA managers to what may be an unwise policy or practice, or unfair
administration of a policy is as important as the resolution of the
specific problem. By making well documented recommendations to EPA
program managers, the Ombudsman can point the way to positive
institutional change that should prevent or reduce future similar
problems from arising in the future.
INDEPENDENCE OF THE OMBUDSMEN
No matter what capacity an Ombudsman is serving in at any given
time, the Agency has worked to ensure the Ombudsmen's ability to
operate independently. As you are probably aware, one of the main
principles an Ombudsman operates under is the ability to operate
independently in determining what cases to work on, how an inquiry
should proceed and what are the findings of a inquiry.
From the time the National Ombudsman was established by Congress,
this function has been a federal government employee reporting to a
senior Agency official. Because the Ombudsman is a federal employee,
the National Ombudsman cannot be completely independent in the normal
course of relations between supervisors and their employees. But, OSWER
recognizes the importance of an Ombudsman being and appearing to be
independent from the organization he/she is investigating. For example,
OSWER has given the National Ombudsman his independence to the maximum
extent possible. The Assistant Administrator (AA) for OSWER does not
monitor the Ombudsman's workload. The AA does not select which cases
the Ombudsman will take, nor directs the Ombudsman how to investigate a
complaint. The AA does not interfere with or attempt to influence the
Ombudsman as he formulates his findings and recommendations.
The National Ombudsman reports to Deputy Assistant Administrator
(DAA) Michael Shapiro. As his supervisor, DAA Shapiro is the approving
official on all procurements requested by the National Ombudsman.
Generally, for ongoing investigations, funding is approved on an as-
needed basis. Where significant resources are requested, DAA Shapiro
may become more involved in a case so he is able to determine that the
resources requested are available and that the procurement is the
effective mechanism to accomplish the Ombudsman's objective.
FUNDING FOR THE OMBUDSMAN PROGRAM
The EPA has provided adequate resources (funding, person-years,
etc.) for the Ombudsman function since it was created. In all cases
when the need has arisen, additional funds have been provided to the
Ombudsman function. That includes the assignment of staff to support
this function and the assistance of the ten Regional Ombudsman as
needed. In addition, the Ombudsman, depending on the site and issues
under review, has accessed the technical expertise of the EPA's
Environmental Response Team to supplement his investigative efforts.
Over the years, funding for the National Ombudsman function has
steadily increased despite the fact the Superfund program budget has
been reduced. In fact, funding has gone from roughly $117 thousand in
fiscal year 1993 to over $519 thousand in fiscal year 2000. The
Regional Ombudsman function is funded at roughly $1 million a year,
under the ten Regional budgets.
ACCOMPLISHMENTS OF THE PROGRAM
The National and Regional Ombudsmen receive many calls for
assistance each year--ranging from routine questions about hazardous
waste laws to specific complaints about unfair practices conducted at a
site or facility. The Agency has frequently adopted recommendations put
forth by the Ombudsman program. Before I close, I would like to share
with you an example which demonstrates the success of the Ombudsman
program.
In 1999, local residents asked the National Ombudsman to look into
the EPA Superfund program activity associated with the Shattuck
Chemical Site in Denver, Colorado. Community members did not feel the
remedy adequately protected public health and the environment. As part
of his investigation, the National Ombudsman held three hearings to
hear the concerns of community members. He also interviewed government
officials, local residents, and EPA staff and reviewed the
administrative record of the site. In October 1999, the National
Ombudsman issued his draft recommendations. Subsequently, EPA selected
an alternative remedy for the Shattuck Chemical Site.
Is the program operating successfully? I believe so. Generally, as
a result of the Ombudsman's involvement, a better decision is reached,
communities are satisfied with the outcome and public health and the
environment are protected. The Agency will continue to support the
Ombudsman function and make resources available so that it may continue
to assist communities across the nation.
Mr. Oxley. Thank you, Mr. Fields.
Mr. Martin.
STATEMENT OF ROBERT MARTIN
Mr. Martin. Thank you, Mr. Chairman. I am pleased to be
here this morning to appear before you and the honorable
members of this committee.
In speaking just extemporaneously for a moment, I have been
doing this job for 8 years; and in the course of doing that job
I have talked to a lot of people, and I have met a lot of
people all over the country and meeting with those people and
working with them has enriched my life. I want to recognize
them as I appear before you today, and I am very glad that you
will be hearing from some of them in the course of this
hearing.
I have a few things which I would like to speak to in the
spirit of doing our job better and in doing what the EPA must
do, which is to protect human health and the environment, that
is its mission, particularly in the Superfund program. As we do
that, I think it is critically important that we listen to
people more, because I don't feel we have listened enough, and
it is a very hard job to do, to listen.
I also feel that we need to be more compassionate, because
we have so much power in the Superfund program. The Agency has
so much power in that program, and we need to feel how we
affect people's lives every day in the exercise of that power
or by not exercising that power.
Third, I feel we need to be more thorough in our job. There
have been countless times when I have undertaken cases in
different parts of the Nation where I have heard that we have
missed this or have missed that, and I think it is very
important to catch it all in the front end. I think that people
in the end want to know how big of a problem they are facing,
if they are facing one. They may not be able to fix it right
away, we may not have enough money, may not have enough
resources, it may take a long time, but we need to stay in a
place of truth with that, with people. And also, obviously,
where there may not be a problem we should not be focusing
extraordinary resources to examine that.
So with that being said, I am very honored to be before you
today and would be glad to respond to your questions, not only
in this session but individually as well as afterwards and
perhaps in meetings. Thank you sir.
Mr. Oxley. Thank you, Mr. Martin, and job well done for 8
years. We appreciate your sincerity and your commitment to your
job.
Mr. Fields, let me first indicate to you what appeared to
be good news last week when the announcement came from U.S. EPA
that the Keystone landfill site in Pennsylvania had been
adjudicated and there was a settlement, and what appeared to be
on the surface very good news turned out to be, based on the
timing at least, rather interesting, to say the least.
Let me quote you from Mr. Campbell, Bradley M. Campbell, I
am sure you know the EPA Administrator for Pennsylvania, for
eastern Pennsylvania. He says, quote, EPA is pleased to
conclude this extensive, expensive, contentious litigation. We
are eager to shift more of our attention and resources from the
courtroom to cleanup--EPA Administrator Bradley Campbell--but
Congress still needs to address the basic deficiency in the
Superfund that allowed this huge number of defendants to be
sued. And indeed there were over 130 original defendants that
ballooned to 580 additional parties.
He goes on to say, today's settlement reflects the
fundamental Superfund reforms which made it fair to the little
guys who never should have been sued by the large polluters in
the first place, said Steve Herman, Assistant Administrator for
EPA's Office of Enforcement, Compliance and Assurance.
Those quotes sound familiar, but most of those came from
this side of the dais. By using these reforms, we protected
small waste contributors from costly third-party lawsuits and
deterred similar litigation in future cases.
It was particularly interesting because about that time, as
you know, we were working with EPA to craft legislation that
would not only take care of the small business folks at the
Keystone landfill, including the now famous Barbara Williams
and her restaurant, but indeed all of those folks who stood in
their shoes or stand to be in their shoes over the next few
years unless we solve this incredible morass that has
encompassed many of these small business people whose only sin
was sending chicken bones to the local landfill.
Now, as you know, we had that legislation, H.R. 5175, on
the floor last week, and we worked very hard in trying to
assuage some of the concerns that EPA had with the bill. But,
frankly, I am disturbed that at the moment we thought we could
move forward in a bipartisan manner your staff refused to meet
with my staff, even though we requested a meeting to work on
some of those changes. Matter of fact, the changes we made in
the original legislation of the 1999 text were changes that EPA
had requested.
What I am going to do is give you a copy of the bill that
was unable to secure two-thirds votes in the House last week
and ask you by the end of the week if you can make some written
comments back to this committee as to why EPA chose to oppose
this very common-sense legislation, particularly in the face of
statements that came out of the EPA about--beating their chest
about how successful they were in this settlement in
Pennsylvania.
I might also point out that, despite all of the apparent
good work that was done, the aforementioned Barbara Williams,
in actuality this settlement does nothing for her. As a matter
of fact, it preserves the right of Waste Management to pursue
their suit against her.
So let me first ask if you can provide us with some
information in that regard, regarding the legislation and how
it squares with that settlement in the statements therein, and
also whether in fact that that is correct that Barbara Williams
is still subject to litigation after over 5 years in this
predicament.
Mr. Fields. Okay. I will be happy to--the three points you
made there, I will be happy to provide written comments back on
H.R. 5175 and the administration's concerns about elements of
that bill that we would have, you know, we would have concerns
about and we ran out of time.
[The following was received for the record:]
Attached is a letter from Timothy Fields, Jr., Assistant
Administrator, Office of Solid Waste and Emergency Response,
which provides legislative language that addresses the
Superfund liability of small parties.
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Mr. Fields. Obviously, as the Administrator has said, Mr.
Congressman, as I have said many times, we do support targeted
Superfund liability relief for small parties. However, this
bill was different than the one that we were working on in
terms of a draft last fall, and we ran out of time in terms of
being able to resolve all of our issues.
We want to continue to work with this committee to provide
liability relief for small businesses, and we would like to
continue to work with you and others in Congress to do that in
the future. However, we do have some concerns, and I think that
was communicated in a letter the Administrator sent to
Congress, went to Congressman Tauzin and others on September
22.
Two other points you made and I want to make clear, and I
think this is a comment that Congressman Shimkus alluded to in
his opening remarks. I want to make very clear that the
statement is not correct about the Keystone settlement and the
vulnerability of Barbara Williams' former restaurant. My
understanding is that she has now sold that restaurant.
But in the consent decree, we explicitly required that the
selling parties, Waste Management, the Noels, they would have
to waive their claims against all parties, including the
nonsettlers like Barbara Williams. We included similar waivers
in our prior settlements with the original generator
defendants, the selling third and fourth parties and the de
micromis parties.
The truth is, we have done everything in our power to
protect Barbara Williams and those who are similarly situated.
No one who settled with EPA can sue any of the nonsettlers. So
we want to clarify that, because we have seen some statements
by NFIB which were incorrect on that point.
Mr. Oxley. If I could interject, that statement came from
EPA, not from NFIB; is that correct?
Mr. Fields. No. EPA is trying to set the record straight.
We saw a statement from NFIB that, despite that settlement
signed on Keystone, that Waste Management could still sue
Barbara Williams.
I want to set the record straight and say EPA's position is
and the settlement language says specifically--if you want I
can give you the cite; it is in section 24, paragraphs 179
through 185--it makes very explicitly clear that the selling
parties cannot sue Mrs. Williams or any other nonsettlers as
part of this consent decree that has been signed. That is our
position. That is our reading of that consent decree.
Mr. Oxley. Now is your reading of our bill that Barbara
Williams and all of those folks would be relieved of liability
straight up?
Mr. Fields. Your bill and that particular element of your
bill that you sponsored, Mr. Chairman, H.R. 5175, it would
solve the problem of the small business like Barbara Williams
who generated----
Mr. Oxley. How come we couldn't get 290 votes for it?
Mr. Fields. H.R. 5175 was not the same bill that we were
discussing.
Mr. Oxley. No, it wasn't. Actually, we accommodated EPA on
several issues, including, if I might point out, applying the
de micromis exemption prospectively.
Now do you agree that H.R. 5175 addresses this concern?
Because that was the concern that we were told by EPA--and we
specifically addressed that.
Mr. Fields. Mr. Chairman, you did address that concern.
I do want to point out, though, that the bill we were
discussing with NFIB, that was not really a bill but a draft
proposal of October, 1999, that was different than H.R. 5175,
was introduced this session. It is true that you and your staff
worked with us heroically to try to address a lot of our
concerns. We do still have some lingering concerns, though.
For example, the Administrator is concerned that the burden
of proof has shifted to the government. The government must
prove that a business that sent over a hundred pounds of
waste--that a business that sent over a hundred pounds of waste
is not exempt.
You know, I will give you comments specifically on the bill
this week, but there were elements in this bill that we could
still not support.
Mr. Oxley. So it is EPA's position that the burden of proof
should be on Barbara Williams and not on the Federal
Government, is that your position?
Mr. Fields. Well, we don't think that the government----
Mr. Oxley. Is that yes or no? Is that yes or no?
Mr. Fields. The answer is, we do not believe that the
government should have to prove that a business sent over a
hundred pounds of waste.
Mr. Oxley. That is a unique and very interesting theory in
American law. Because you know when I went to law school a long
time ago, we studied that people were innocent until proven
guilty and that the burden lay on the government to prove that
those people were indeed guilty. So, basically, the EPA is
turning this legal concept on its head, is it not?
Mr. Fields. Well, the problem, Mr. Chairman, is that
oftentimes the business records are not--oftentimes not
available. This would cause litigation because we would be
disputing whether or not----
Mr. Oxley. You wouldn't want litigation. We certainly
haven't had a whole lot of litigation.
Mr. Fields. We want to avoid that, and we think this
particular element of the bill would encourage litigation.
Mr. Oxley. Would encourage litigation. You mean, even more
litigation than we already have?
Mr. Fields. Because of the unavailability of adequate
records to document how much material actually went to a
material site.
Mr. Chairman, we will be happy to give you some comments by
the end of the week as you request on your bill, but I wanted
you to share with you that, as the Administrator said in her
letter, there are elements like that we believe would increase
transaction costs and promote litigation. We will be happy to
give you a letter for the record that gives you specific
elements of how we believe that bill, H.R. 5175, would promote
litigation and increase transaction costs. That is what you are
requesting. We are willing to do that.
Mr. Oxley. This is, as the Four Tops sang, ``the same old
song,'' Mr. Fields, 1965, I think, by the way.
Mr. Fields. I heard it.
Mr. Oxley. But we have been through this, and it just seems
to me from where I sit that our efforts to try to make some
common sense in this Superfund law which we have been at for it
seems my entire adult life, it is always a moving target. If it
is not the de micromis settlement prospectively, then it is
burden of proof.
So I get the sense that we are in a game where the goal
posts keep being moved on us, even like Charlie Brown, where we
get set to kick the field goal and Lucy, a/k/a Carol, pulls a
football out and I end up flat on my keister.
You know, I am getting pretty damn tired of that. It is the
same old story. We try to get a reasonable bill on the floor of
the House that was supported by virtually all Republicans and
46 or so Democrats, that made a lot of sense and would get
these small business people out of the litigation nightmare,
not create more litigation, create less litigation. This is not
brain surgery here. Yet we found a situation where we couldn't
get it done because somebody had a political agenda, and I just
find that unfortunate.
Let me yield to the gentlelady from Colorado.
Ms. DeGette. Thank you, Mr. Chairman.
Let me just say that that particular bill, H.R. 5175, when
it came to the floor was not a bill that the minority had seen
or had the opportunity to work on. People like me really felt
like it was a good step toward resolving some of these
liabilities for the small folks like the restaurant owners who
have been mentioned today and others. However, there were some
other details in the bill that were really problematic.
I think we could have worked those details out had we known
about it before it came to the floor, but, as we all know,
Superfund is very technical. There is a long established body
of law, and the last thing we want to do is upset the equities
in existing laws which would encourage litigation.
So I would offer--Mr. Chairman, for next year I would offer
personally to work with you on this issue. It is an issue, as
you know, I have worked on a lot; and I will guarantee you if
we come up with an agreement I won't pull the football out and
leave you on your keister.
Mr. Oxley. Thank you.
Ms. DeGette. You are welcome, Charlie.
Let me get back to the topic at hand a little bit. I would
like to ask Mr. Fields, you heard me talk in my opening
statement about these new findings by the Department of Energy
about some States that processed radioactive materials; and I
am wondering if the recent disclosure by the DOE needs to be
investigated by the EPA as regards the Shattuck site so that we
can properly characterize and dispose of the waste.
Mr. Fields. Yes, Congressman DeGette, we are including
Shattuck. We initially, through the USA Today article, had
identified 153 sites. We have now discovered in discussions
with DOE several hundred others. We are investigating all those
sites, one of which was Shattuck; and the Department of Energy
is also doing a file review on a parallel track to determine
what information they have about this waste disposal area so--
as well.
So I assure you there is an ongoing investigation by EPA,
DOE and others trying to assess exactly what is the situation
regarding radiation waste at Shattuck in light of this
disclosure in recent weeks.
Ms. DeGette. How will this affect the timetable for removal
of waste at Shattuck?
Mr. Fields. We don't believe it will affect, in any way,
the timetable for removal of waste. We are in the design phase
right now. We committed to the community we would have this
material moving away within 2 years. That is the same time
schedule we are on. We are doing this effort aggressively, on a
parallel track, with the design being done.
We will have to make sure, however, the waste is properly
characterized. Any waste that goes offsite will have to be
characterized to determine exactly what is there and whether or
not the facility we are going to take it to is properly
licensed to take that material. So it is critical we get this
investigation that you alluded to done quickly. So that can
factor into the schedule for moving this material offsite.
Ms. DeGette. But it is your view today the removal schedule
should not be affected.
Mr. Fields. We do not intend for the removal schedule to be
updated.
Ms. DeGette. I think that is pretty clear.
Mr. Martin, let me ask you if you have any sense why your
office's investigation of the Shattuck site did not uncover any
of the information that the DOE just released.
Mr. Martin. When I undertook my review of the Shattuck
site, which began last June, we did meet with officials from
the company, this W.S. Shattuck Company, were provided a tour
of the site; and since that time I can tell you I have had
suspicions that the waste at the site was other than as
described on the basis of questions that we have asked and also
on the basis of documents that we reviewed in the
administrative record in the region. It is a concern that we
have had, and we are investigating.
Ms. DeGette. Mr. Martin, to follow up a little bit, I know
that there were a number of statements by you and by the chief
investigator about potential criminal activity at the Shattuck
site made in the press and other places. I am wondering if, to
your knowledge, there have been any reports made to local law
enforcement or Federal law enforcement officials about criminal
activity or anything you have uncovered at the site.
Mr. Martin. I made no statements about potential criminal
activity in the course of the hearings which we undertook for
the Shattuck site. However, to the extent we have any reason to
believe through our review of the record or otherwise by
talking to officials within the region, the State or the
company that there may be, you know, criminal activity, we will
refer them to the Inspector General of the EPA.
Ms. DeGette. But to your knowledge no referrals have made
to date.
Mr. Martin. I have made no such referral.
Ms. DeGette. Thank you.
Let me ask you generally, I know the ABA is looking at
general Ombudsman standards and the subcommittee issued a
report this past July to the American Bar Association House of
Delegates recommending a set of standards for the Ombudsman
office to follow.
On the one hand, the recommendations stated that the
Ombudsman should not conduct an investigation that substitutes
for administrative or judicial proceedings; and an Ombudsman
review should not serve as the foundation for disciplinary
activity or civil action or a determination of a violation of
law or policy. The report goes on to say, and, by the way, the
subcommittee says that the ABA supports the greater use of
ombudsmen; and it says that ombudsmen should review allegations
of unfairness, maladministration, discourteous behavior,
incivility, inappropriate application of law or policy,
inefficiency or decision unsupported by fact.
I am wondering, Mr. Fields, if you can tell me, does the
EPA Ombudsman follow these guidelines? And if not, do they
intend to in the draft report that you are working on? And if
not, tell me how it operates differently.
Mr. Fields. Well, the EPA has looked at the American Bar
Association Ombudsman guidelines. We have looked at this report
that you have referred to as well. We are looking at all those
sources. We are looking at the guidelines of the U.S. Ombudsman
Association. We are looking at those elements of those
guidelines that are the best components, and we intend to apply
those and incorporate those into the EPA guidance we are
developing that we will make available to the public shortly.
We think there are certain elements of those guidelines
that fit the EPA structure, but there are some elements that do
not. Complete confidentiality, for example. We cannot provide
complete independence, for example. We are working to try to
make sure those elements of those various models that have been
published by various organizations including ABA are
incorporated into our guidance that we are developing and make
sure that they are compatible with Federal law and EPA policy
and procedure.
Ms. DeGette. Mr. Martin, would you have any comment on
that?
Mr. Martin. Yes, I would.
I served and still serve on the Working Committee for the
American Bar Association for Ombudsmen, and I was integrally
involved in the development of the language which you have
spoken of just a moment ago. And I think the direct point is
that once an Ombudsman becomes an adjudicatory body it is no
longer an Ombudsman. Therefore, an Ombudsman cannot be a judge,
cannot make recommendations which are binding upon the entity
that it reviews. This function has never done that and I don't
believe ever will.
Mr. Oxley. Gentlelady's time has expired.
The gentleman from Florida, the chairman of the Health
Subcommittee.
Mr. Bilirakis. Thank you, Mr. Chairman. I will just
continue in that vein.
In 1990, as I understand it, the Administrative Conference
for the United States recommended that all government agencies
with frequent contact with the public consider establishing an
Ombudsman service. The conference also indicated that, and I
quote, Mr. Fields, ``it is important that Ombudsmen be
independent of the line offices and that they are seen as
independent.''
Well let me just say, this is difficult. It is difficult
for those of us who have worked with, and developed
relationships with, the Ombudsmen over many months, to get them
in a position where they are sitting here to the right hand of
their boss, not under oath and asking them to basically say
what is in their hearts. And in all honesty--that makes it very
difficult for me.
Because, let me just put it this way, Mr. Fields, with all
due respect--this is not intended to be any kind of a threat or
coercion or anything of that nature. I don't really know what
Mr. Martin is going to testify to here today. He was asked to
testify, and apparently accepted the invitation to testify.
Ordinarily, a written statement is submitted to this committee
prior to that testimony. We did not receive a written
statement. We were told he was not going to be able to testify.
Then, of course, this morning he is here to make an oral
statement. You know, a reasonable person would certainly read
an awful lot into all of that.
I would hope that no matter what happens here today or
during the process of reauthorizing and maybe putting into law
specifics in terms of the functions of the Ombudsman, that
there would not be any repercussions on Mr. Martin or any
members of his staff. And I know that you will tell me there
won't be, but you and I know that sometimes things are said and
other things happen, whether the person who made the comment
means it or not.
You were asked, Mr. Martin, to testify before this
committee. You did not provide a written statement. Now you are
here today to speak orally. Is there anything you would like to
share with this committee in that regard? It is true you were
invited to testify.
Mr. Martin. That is correct, Mr. Chairman.
Mr. Bilirakis. It is true that you planned to testify.
Mr. Martin. That is correct, Mr. Chairman.
Mr. Bilirakis. And it is true that that changed and then
this morning you are to give an oral statement.
Mr. Martin. There was confusion, Mr. Chairman, about the
submission of testimony to the committee. I had a discussion
with our Office of Congressional Affairs in which they
indicated that a statement or statements would be prepared for
Mr. Fields and myself. That discussion occurred around
September 23. I then understand from my staff that there had
been a joint statement prepared by the Agency as late----
Mr. Bilirakis. Joint statement for the two of you.
Mr. Martin. Yes, sir, yeah. That had been prepared by the
Agency.
Mr. Martin. Yes, and as of last evening, in fact, the joint
statement was still prepared; and then I understand a statement
was submitted that was from Mr. Fields alone.
Mr. Bilirakis. Did you feel that you should provide your
own statement?
Mr. Martin. I feel the Office of Ombudsman--I feel, as
Ombudsman, that I should be able to provide my own statement to
this committee. I understand that because of legal difficulties
within the agency, perhaps the administration, any such
statement would have to be cleared through the Office of
Management and Budget and perhaps other entities as well. I
understand those difficulties. But to answer your question,
yes, I do feel I should be able to.
Mr. Bilirakis. Had you prepared your own statement and went
through the process and just didn't make it through the
process?
Mr. Martin. No, sir. I was led to believe that a joint
statement would be prepared and submitted.
Mr. Fields. Mr. Chairman, could I enter this one and
clarify this, just to add to this question?
Mr. Bilirakis. I suppose so.
Mr. Fields. Mr. Martin--and I--and we apologize. There was
some confusion. Mr. Martin was on leave, and we did talk to
staff in the Ombudsman. We assumed that one statement from the
administration--obviously, Mr. Martin was not restricted in any
way from being able to communicate with this committee.
We traditionally prepare one statement that allows several
witnesses--whether it is me and Steve Herman or me and Lois
Schiffer--when we get letters from committees of Congress we
traditionally put together one statement and have both
witnesses there to respond to questions. But I assure you there
was not any attempt to try to stifle a statement from the
Ombudsman.
Mr. Bilirakis. Mr. Fields, with all due respect, again, I
don't think there is any confusion. The letter of invitation is
right here; and it is pretty darn clear, the form of your
testimony and that sort of thing.
You know, it gets again to the independence aspect. It gets
to the problems that led up to this hearing, the problems that
we ran into in our different sites in Denver, in Idaho and
Florida, et cetera.
You know, you made the comment, sir, that the Ombudsman's
Office is operating very successfully. Maybe some people would
say in the eyes of EPA maybe too successfully. You know, I was
part of this committee when we did the Superfund bill, as was
Mr. Oxley. Not too many people up here were here at this time.
The Superfund bill took up all hours of several days and
nights, and it was a very contentious type of a thing. It
shouldn't have been, I suppose, but it was because partisanship
always plays a part. But I do remember very clearly back when
the Ombudsman concept was being brought up and a lot of us
ended up supporting the Superfund bill; and many people who,
frankly, were being blasted by various special interest groups
were thanked after it all was done.
But in my mind I am not sure they understood what the role
of the Ombudsman would be in Superfund program, and I sure
understand it now from what I have seen in Tarpon Springs.
Thank God for it and thank God for those people who--I wasn't
one of them--came up with the concept. I suppose I supported
it. I can't remember back to 1984. But my point is it has
probably worked too well from what I have seen.
Now, you know, we have seen documentation, Mr. Fields,
basically withholding funds from the Ombudsman's office. Maybe
they are doing their job too darn well. I don't want this to be
a militant type of hearing. Do you agree that the Ombudsman--as
you have stated, Mr. Fields, is not an advocate for a community
or any person or institution? That is in your testimony. I
believe you have said that.
Mr. Fields. That is in my testimony. That is my statement.
Mr. Bilirakis. It has also been in some of the
communications I have read that your office sent out. Mr.
Martin, do you agree with that?
Mr. Martin. An Ombudsman should not serve as an advocate
for any particular person but can serve as an advocate for--to
be frank, the truth, after an investigation is under way or has
been performed and I may find facts that I believe are
undeniable and if I feel those facts are being ignored by the
Agency, I then advocate for those facts.
Mr. Bilirakis. When you feel that way, what sort of
response are you accustomed to receiving from the Agency?
Mr. Martin. Well, the process at times can be long and
arduous, but I feel that over the course of the past 8 years
the Agency has adopted many of my recommendations--I would say
70 to 80 percent.
Mr. Bilirakis. Mr. Fields, just one last question. My time
has expired. I appreciate the Chair's indulgence. Do you agree
that the Office of the Ombudsman should be reauthorized?
Mr. Fields. We have no problem with the Office of the
Ombudsman being reauthorized. We do have concerns with some of
the legislative proposals, though, that would add elements to
that reauthorization.
Mr. Bilirakis. In other words, you feel that your agency
should continue to control their actions.
Mr. Fields. No. We think, though, that the ABA model
statute is not the appropriate guideline to embody as the
overarching body for the Ombudsman activities. We think there
are elements of those provisions that cause problems for a
Federal Government Ombudsman, but we support the Ombudsman
function being reauthorized. We think it is a valuable
function. We would continue to operate this function
irrespective of whether or not Congress reauthorizes this
legislation.
Mr. Bilirakis. I would like to get into funding and that
sort of thing. My time has expired.
There will be further questions that I and others will be
submitting to you; hopefully, you will respond to those in due
time.
Thank you, Mr. Chairman. I am sorry to have taken up so
much time.
Mr. Oxley. Time of the gentleman has expired.
Chair now recognizes gentleman from Wisconsin first, right?
No, the gentleman from Ohio, Mr. Sawyer.
Mr. Sawyer. Mr. Chairman, I was worried that you had
forgotten where I was from for a second there.
First of all, let me say thank you to both of you gentlemen
for being here. It is good to see you both.
Let me direct my first question to a matter of specific
history within my district regarding the industrial excess
landfill. Back in 1997 the concerned citizens of Lake Township,
who had been working on the issues surrounding that site for
some time, asked then Senator John Glenn and me to intervene on
their behalf with the Agency to allow them to conduct tests of
soil and water site. After more than 6 months, in August 1997,
we obtained permission for the testing to begin. I thought that
was particularly--a particularly good idea because up to that
time test results had been problematic.
Just about the time that the test permission was obtained,
that same citizens group determined that it really did not want
to undertake tests. Instead, they requested a review by the
Ombudsman. That request was denied, and I pressed for the
Ombudsman's participation. Senator Glenn at that point withdrew
from that request, feeling that until the tests had actually
been conducted he didn't want to pursue another avenue of
inquiry.
I had hoped at the time that the Ombudsman could become in
its very special way an active participant, not just reviewing
the history of the site but, more importantly, in examining the
site to decide how best to protect the public health and safety
and the confidence of the residents in the area. So I pleaded
the case with Administrator Browner, and the Ombudsman was
given permission for a preliminary review in September 1998.
Mr. Martin, you advised me that your findings would be
available shortly. You came to my office in October 1998 and
repeated the same assertion. In January 1999, you conducted a
hearing, all of which I am very grateful for. We met again in
the spring of 2000 in May of this year when you suggested that
your findings were imminent. Can you tell me what shortly or
imminent means?
Mr. Martin. Means this week, sir.
Mr. Sawyer. Does it mean this week?
Mr. Martin. Yes.
Mr. Sawyer. I am looking forward to that. It has been
frustrating as you, I am sure, can appreciate, particularly as
we have seen other avenues of resolution move forward along
parallel tracks.
Mr. Fields, has it been your experience that this kind of
timetable is normal?
Mr. Fields. Well, obviously, the Ombudsman has a lot of
major cases that are before him. I am sure that Mr. Martin has
been--being the good public servant he is--is trying to balance
all those priorities he has to deal with. He has a number of
cases involving Superfund and RCRA sites across the country,
and many members on these two subcommittees are aware of those
cases. So I know that the history of the IEL matters go back
more than 10 years.
I do want to say one of the reasons it took a while to even
initiate the Ombudsman review was because this site, as you
know, has been subject to four major reviews even before the
Ombudsman got involved--the Science Advisory Board, the Office
of Inspector General, Clean Sites Incorporated, EPA's radiation
labs. So it is probably one of the most studied Superfund sites
in the history of EPA.
But--I look forward to the Ombudsman's report, but I do
know that, you know, Mr. Martin does have to balance a lot of
major cases all going on at the same time in trying to make
judgments as to which ones he does first, but sometimes the
cases do get delayed necessarily just because of the need to
balance competing priorities across the country.
Mr. Sawyer. Mr. Martin, do you have a comment?
Mr. Martin. Yes, sir.
I thank you for your patience and your forbearance. I also
thank you for your intervention. Because when the request for
my help came from citizens in your community, I was denied by
Administrator Browner, and you did intervene, and that was a
successful intervention.
Since that time, yes, I have done a public hearing in the
community. I have completed my review of the reviews that Mr.
Fields had just spoken of, and I am prepared to sit down with
you this week and give you my preliminary recommendations.
Mr. Sawyer. I look forward to counselling with both of you
when that report becomes available. Thank you very much.
Mr. Martin. The issue of resources----
Mr. Sawyer. I do understand that.
Mr. Chairman, I have been asked to pose one further
question by the staff, if I might. The question revolves around
the question of whether the Ombudsman and his employees have
arrest powers and the right to take an individual into custody.
This centers around an event on June 5 in a town meeting in St.
Petersburg, Florida, where the chief investigator is
characterized here as giving the Miranda warning to two EPA
employees from Region 4.
I am not an attorney, but to my knowledge that warning is
only given in the case of a criminal investigation. Was this
intended to be a Miranda warning? Let me read it to you from
the record.
The chief investigator speaking said, you have the right to
remain silent. You have the right to counsel. Anything you say
may be used against you in a court of law. Proceed to the
witness.
Mr. Fields. Is that for me or Mr. Martin?
Mr. Sawyer. It is for both of you.
Mr. Fields. Your question is, does the Ombudsman function
have subpoena powers or----
Mr. Sawyer. Or arrest powers.
Mr. Fields. The Ombudsman function, as currently
constituted, does not have those authorities or powers.
Mr. Sawyer. What would be the purpose of a Miranda warning
then?
Mr. Fields. I will have to defer to Mr. Martin on that. I
was not at the hearing. I will let Mr. Martin speak to the
purpose of the statement on June 5.
Mr. Martin. I will be glad to respond, sir.
To be clear, no, the Office of Ombudsman--the Ombudsman
function has no arrest powers, has no detention powers, does
not do criminal investigations.
I want to get to the specific point of what was said in the
context of the hearing that I did in Tarpon Springs, Florida,
earlier this year where the issue of the warning arose.
Prior to that meeting, Mr. Kaufman, who serves as my chief
investigator, had met with staff from our Office of Inspector
General with whom I have had a working relationship for many
years in many cases; and I have done criminal referrals to the
Office of Inspector General. Mr. Kaufman was advised--and I
would also like to note that he has really the firsthand
testimony which can be provided on this issue--was advised, and
he is present behind me, that it may be necessary for us to
give certain warnings to preserve a potential criminal case
that the IG would do in the event we made a referral after
completion of our investigation.
Since that time, the Office of Inspector General, at our
request and at the request of Mr. Fields, has provided us with
a memorandum of instruction on when warnings can be issued.
Mr. Sawyer. Thank you very much.
Ms. DeGette. Would you yield?
Mr. Sawyer. I would, but if you could share with us that
instruction.
Mr. Fields. We will be happy to share this for the record.
It is a memo dated September 12, 2000, from the Office of
Inspector General that we will be happy to provide for the
record. Mr. Kaufman has also provided a response to this memo
as well, and those could be provided for the record to this--to
both subcommittees.
[The following was received for the record:]
Attached are two memorandum, the first is from Mark Bialek,
Counsel to the Inspector General to Michael Shapiro, Principal
Deputy Assistant Administrator. The second is from Hugh
Kaufman, Senior Engineer to Mark Bialek. These memorandum
explain the EPA Inspector General's position in regard to
whether the OSWER National Ombudsman has subpoena or arrest
power.
[GRAPHIC] [TIFF OMITTED] T7120.046
[GRAPHIC] [TIFF OMITTED] T7120.047
[GRAPHIC] [TIFF OMITTED] T7120.048
[GRAPHIC] [TIFF OMITTED] T7120.049
[GRAPHIC] [TIFF OMITTED] T7120.050
Mr. Sawyer. Let me yield to the gentlelady.
Ms. DeGette. If the gentleman would yield, I, in fact, am a
lawyer and used to do a fair amount of criminal work.
Frankly, the administration of the Miranda warning by
someone who has no law enforcement or administrative authority
is not going to be meaningful at all in a court of law. Because
a knowing waiver can't be made by anybody who might give
perjurious testimony or testimony that would cause them to
self-incriminate. So, therefore, I would suggest, Mr. Fields,
when you develop your new standards you include this issue in
your new standards. Because unless you have an agent of a
Federal, local or State law enforcement agency to administer
the Miranda warning, this isn't going to have any effect
anyway.
Mr. Fields. I agree--Mr. Chairman, I will respond quickly.
I agree with that, and it has been clarified now in this
memorandum that came from the Office of Inspector General that
only qualified Office of Inspector General personnel and
criminal enforcement division personnel from the Office of
Enforcement have the power and the authority to conduct
investigation of potential criminal violations and
administrative misconduct and issue such warnings, as you just
pointed out; and that will be made explicitly clear in future
guidance.
Mr. Oxley. Gentleman's time has expired.
The Chair now recognizes the gentleman from Illinois, Mr.
Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman.
Mr. Martin, I am glad that you are here. You have a very
gentle spirit, and I say that with all due compliments because
I think you probably need it in that job.
Also, we, as Members of Congress, there are 435 ombudsmen,
and this is our job and in many different areas. This is why I
have taken on the Quincy issue so fervently. I find it hard to
be an effective Ombudsman if you are not even allowed to
provide your own written statement. How can you be totally
independent?
I understand that it would have to get vetted through some
folks, but I just find that symptomatic of a problem that
really, Mr. Fields, I hope you end up addressing at some time.
Mr. Martin, who is giving you advice behind your--who is
the gentleman behind you with the beard and glasses and from
what office does he come from?
Mr. Martin. It is Mr. Kaufman with the Office of Solid
Waste and Emergency Response which Mr. Fields is representing
and which I am in, and he has served as my chief investigator
in a number of cases.
Mr. Shimkus. Is he in the Office of the Ombudsman or is he
in Mr. Fields' office?
Mr. Martin. He is technically in Mr. Fields' office,
because my position description is such that I have no
authority to supervise any EPA employees.
Mr. Shimkus. I thank you. I think that is also a telling
issue of some independence or lack thereof.
Mr. Fields, how many times have I asked for some language
from you in a hearing of this sort to relieve small business,
provide them some liability protection? I can remember two
times, and I can remember two times you providing the
affirmative action assurance that you would provide me or this
committee some language. Have I ever received language?
Mr. Fields. We have worked on language with committee
staff, Mr. Congressman. I don't recall us providing language
specifically to you. I do know that we had worked on language,
but I don't recall whether we provided it.
I would just make one quick--this will be 30 seconds--just
to clarify that Mr. Martin, his statement would not have to be
cleared by any of the administration to submit a statement.
That is not a requirement we have in terms of Mr. Martin
being----
Mr. Shimkus. Let us don't go there because, obviously, it
didn't happen today.
I would like to place in the record statements from the
NFIB concerning EPA's lack of leadership on small business
relief legislation.
[The information follows:]
[GRAPHIC] [TIFF OMITTED] T7120.051
[GRAPHIC] [TIFF OMITTED] T7120.052
Mr. Shimkus. I would also like to show you--and I am
referring to Mr. Fields--and place in the record some draft
text that we were provided in November 1999.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T7120.153
[GRAPHIC] [TIFF OMITTED] T7120.053
[GRAPHIC] [TIFF OMITTED] T7120.054
[GRAPHIC] [TIFF OMITTED] T7120.055
[GRAPHIC] [TIFF OMITTED] T7120.056
[GRAPHIC] [TIFF OMITTED] T7120.057
Mr. Shimkus. On top of the first copy of the fax line, it
says the Office of Administrator at EPA. The first copy is
incomplete. So I have an additional complete copy that has both
EPA and NFIB's name on the fax lines, and I want to know very
clearly with a yes or no, if possible, was this paper produced
at the EPA after discussions with the EPA?
Mr. Fields. This is November, 19--I see it says November 3,
1999.
Mr. Shimkus. November 3, 1999, EPA, AO and then--the same
line--with another line from NFIB Government Relations.
Mr. Fields. I provided a letter for the record August 18,
2000 which said that NFIB and EPA had developed some language
in November 1999. I don't know if this is the specific same
language, but I assume this is close to or similar to language
that we were working on at the time with NFIB staff and EPA
staff. I would have to read this carefully and verify for you
to know if that was exact same language, but I know we were
working on language at the time.
Mr. Shimkus. Please do because we obviously believe that it
is the same language and that really this committee has moved
in great strides to try to meet many of the EPA's demands and
especially in the bill we had on the floor.
The bill addresses a relationship with entities to parents,
subsidiaries and affiliates as requested by the EPA. The bill
addressed the potential effect of the bill on concluded actions
as requested by administration staff. The bill withdraws
liability protections if a small business fails to comply with
administrator support orders to compel compliance with requests
for information as requested by
EPA. The bill narrows the definition of households as
requested by the EPA.
Finally, at the request of the Administrator's staff, the
bill makes clear that settlement offers must be in the public
interest.
I mean, we have moved really very far to meet your desires.
I think the chairman's frustration has been experienced by
myself, too, is we just want to know what you want. I mean,
that is all. I think that is pretty clear.
So I want to follow up on the chairman's request that you
take 5175 and tell us what you want; and if you can do that by
the end of this week we may be able to run another shot at this
on the floor.
As an Ombudsman for the citizens in my District--and I tell
my colleagues and I said this on the floor--their time will
come. Their time will come when the local restaurant owner is
being the third party of a suit. As I mentioned in the opening
statement, they will be in that block of 580 that are the third
iteration of a suit in which their net income for the year will
be at risk, either through a settlement offer by the EPA or
countless litigation to get them out of this fund, and we have
all agreed they don't need to be there.
So since we are going to have probably another week here in
Washington, we do have time to fix this; and so I will take you
at your word that you----
Mr. Fields. We will provide comments, yes, Chairman Oxley.
Mr. Shimkus. Not just comments. We are not asking for
comments anymore. We are done with comments.
Mr. Fields. That is what the chairman----
Mr. Shimkus. No, he didn't. He wants legislative language.
He wants language that you would approve in a bill to exempt
small businesses from this trap.
You know, the Administrator's position on this and the
failure to fight for small businesses, to say that it would
expand litigation, is the biggest red herring I have ever
heard, when the whole intent is to leave liability--the whole
intent of the----
Mr. Fields. There are elements of the bill----
Mr. Shimkus. [continuing] language. We don't want
overviews. We don't want synopses. We want legislative language
to fix the bill, and I will take you at your word.
With that, Mr. Chairman, I will yield back my time.
Mr. Oxley. Gentleman yields back.
The Chair now recognize the gentlelady from Wyoming, Ms.
Cubin.
Mrs. Cubin. Mr. Chairman, I don't have any questions at
that time.
Mr. Oxley. Then the Chair turns to the gentleman from
Oklahoma, Mr. Largent.
Mr. Largent. Thank you, Mr. Chairman. I do have some
questions.
Mr. Martin, when you were asked a question earlier you said
that you believe that your office was an advocate for the
truth. And the question I had for you when you said that was do
you feel if the Ombudsman's Office is controlled or manipulated
by the EPA that you can still pursue the truth?
Mr. Martin. No.
Mr. Largent. Okay. Did you have written testimony prepared
for this hearing this morning?
Mr. Martin. No.
Mr. Largent. You never had a testimony prepared for this
hearing.
Mr. Martin. That is correct.
Mr. Largent. Did you seek permission to provide testimony
for this hearing when asked?
Mr. Martin. I understood it was being prepared by the
Agency.
Mr. Largent. Which agency?
Mr. Martin. The EPA.
Mr. Largent. The invitation went to you, and the Agency
began preparing the testimony for you, is that what you are
saying?
Mr. Martin. That was my understanding, yes.
Mr. Largent. Did you not think that that was odd or is that
normal operating procedure, that your testimony that you would
provide before this hearing would be provided by the Agency or
perhaps the gentleman that is sitting behind you?
Mr. Martin. I did not receive the invitation letter
directly.
Mr. Largent. Did your office receive an invitation
directly? Because we have a copy of it. Maybe there is a
problem with the Postal Service. Maybe we can get them here.
Mr. Martin. We did receive the invitation, I believe,
yesterday; and it had been opened.
Mr. Largent. It had been opened.
Mr. Martin. Yes before we received the invitation.
Mr. Largent. Who opened the invitation?
Mr. Martin. I don't know, sir.
Mr. Largent. Do other people routinely open your mail
before you receive it?
Mr. Fields. Mailroom--EPA's mailroom opens the mail
oftentimes when it comes in, letters.
Mr. Largent. Well, Mr. Martin, have you had a chance to
read the testimony that the Agency provided for this hearing?
Mr. Martin. Yes, I reviewed it this morning prior to the
hearing.
Mr. Largent. And do you agree 100 percent with its contents
provided to this committee?
Mr. Martin. I think there is some areas where clarification
is needed.
Mr. Largent. What would those areas be and what would you
say to clarify them?
Mr. Martin. I believe that in the area of the Regional
Ombudsmen program, for example, there have been difficulties
with the implementation of that program as it has been
established by the Agency. The Regional Ombudsmen do not serve
full time in those capacities. Instead, it is more like 5 to 10
percent of their jobs; and their regular job is to report to
the people whom they would be reviewing in their particular
regions. That is a problem, and I think that it needs to be
addressed by the Agency, perhaps by Congress in its discretion.
Mr. Largent. So, basically, it would be similar to, say,
having Firestone executives heading up NHTSA, overseeing the
production of tires and quality control on tires. Essentially
that is what is taking place, is that right?
Mr. Martin. I think there are inherent conflict of interest
problems, yes.
Mr. Largent. And it is my understanding that when this law
was created back in 1984 that the original authorizing language
required that the Ombudsman--you were to report directly to the
EPA Administrator. Is that how you operate today?
Mr. Martin. No, sir.
Mr. Largent. Who do you report directly to?
Mr. Martin. I report to Mr. Fields deputy, Mr. Shapiro, and
at times Mr. Fields.
Mr. Largent. Why is that? Why are we not following the
original intent of the law from 1984? How did that get altered?
Mr. Martin. I cannot speak for the Agency about the
reporting issue, but needless to say it is a decision of the
Agency to have the reporting structure at this time.
Mr. Largent. That is the hand you were dealt?
Mr. Martin. That is correct.
Mr. Largent. Do you feel like it would lend to the autonomy
of the Ombudsman position if you reported, in fact, directly to
the EPA Administrator.
Mr. Martin. Yes, I do; and there is a study by the
Administrative Conference of the United States which describes
that as necessary.
Mr. Largent. Thank you, Mr. Martin.
Mr. Chairman, I yield back my time.
Mr. Oxley. Gentleman yields back.
The Chair is now pleased to recognize the gentlelady from
Idaho who has joined our deliberations today. Welcome.
Mrs. Chenoweth-Hage. Thank you, Mr. Chairman.
I wanted to follow the line of the questioning initiated by
Mr. Largent.
I find it extraordinary that EPA was created under an
executive order and yet the Congress thought so strongly about
an Office of the Ombudsman that under Public Law 98-616 the
office was created by the Congress, and so it is of great
concern to those of us Members who are involved in these issues
to make sure that the Ombudsman remains independent.
I also find it extraordinary, Mr. Martin and Mr. Fields,
that under EPA publications it is--the Office of the
Ombudsman--is described as a high-level employee who serves as
a point of contact for members of the public that have concerns
about Superfund activities and that the ability to look
independently into problems and facilitate communication that
can lead to solutions, end quote, is a responsibility of the
Ombudsman. I find that word ``independently'' to be very, very
important to us.
In addition, Mr. Fields, in 1990 the Administrative
Conference of the United States, of which EPA participated in,
published a report that states, it is important that Ombudsmen
be independent of the line offices and that they are seen as
independent.
Now, in your testimony you went to great lengths, Mr.
Fields, to talk about the handbook and the standards that are
going to be published with regards to the conduct and the job
responsibilities of the Ombudsman. I find that extraordinary. I
find that to have EPA write rules and regulations and put forth
standards for an Ombudsman whose office was created by the
Congress whose--it has been stated very clearly they should
remain independent, that is the antithesis of independence.
Mr. Fields. I should clarify that the Hazardous Waste
Ombudsman Handbook that was written back in the late 1980's,
1987, was actually drafted by the first Ombudsman who was Mr.
Martin's predecessor. Mr. Bob Knox was instrumental in drafting
that first Ombudsman's handbook.
So it was not something that EPA management dictated in
terms of how the Ombudsman functioned or operated. It was
actually done by staff. And particularly the National Ombudsman
at the time was integrally involved in developing a Hazardous
Waste Ombudsman Handbook. It was felt that there needed to be
some procedures and guidelines on how the function should
operate and how the Ombudsmen should go about doing their
business. In the event that a subsequent Ombudsman came along
that new Ombudsman would not have to start from scratch as
there would be a handbook.
As you know, Mr. Martin is now the second National
Ombudsman we have had and that handbook was at least I think
helpful when Mr. Martin began his job 8 years ago.
Mrs. Chenoweth-Hage. And I think that handbook clearly lays
out the need for independence and the concern that the Congress
had when they implemented and passed and voted on Public Law
98-616.
My concern is with the standards that you have testified to
that Lois Schiffer, Assistant Attorney General here in
Washington, DC, had indicated that the Ombudsman's
investigative matters should not be at issue in any issue
pending the--that has pending litigation or administrative
proceedings. Well, almost everything the EPA does is
administrative proceedings. So knowing that Lois Schiffer has a
big bark and that she has sent communications with regards to
that particular issue, I am concerned that this is the kind of
standard that we are going to see published and noticed in the
CFR.
Mr. Fields. Well, Ms. Schiffer has sent communications, I
know, to you, Congresswoman, about that point and also to me.
As you know, we--EPA decided that we still could proceed
with an Ombudsman investigation in the Coeur d'Alene basin that
you and other members of the Idaho delegation requested. We
believe you can do an effective Ombudsman investigation and not
impede matters involving ongoing litigation. The government
must speak with one voice during litigation. As you know, as we
have tried to do that.
And I think we have tried to work with Mr. Martin's office
to make sure that he can continue to conduct an investigation
of the issues of concern to the public in Coeur d'Alene and not
adversely impede ongoing litigation. That is an issue we are
trying to continue to work with.
But in spite of the recommendation initially by the
Department of Justice that we not proceed with the Ombudsman
hearing, we agreed and I supported, as you know, the need for
the Ombudsman's investigation and hearing to proceed.
Mrs. Chenoweth-Hage. Thank you, Mr. Fields.
I see that my time is almost up, but I do note that under
the administrative regulatory news it states that the Ombudsman
should facilitate communication between citizens and where
there is systemic failure or systematic failure to propose more
general reforms--I just have to say that from my own personal
experience, information that we were not able to acquire, such
as plans to seize mines without notice to the owner, lack of
chain of custody with regards to how samples were drawn, that
is the first thing that impressed me about this Ombudsman, was
his first question to me was, has there been a chain of custody
that you have been able to turn up? If not, I will investigate
that. That is the kind of investigation the people are crying
out for and I think the Congress needed when it passed public
law.
Thank you.
Mr. Oxley. Time of the gentleman has expired.
The gentlelady from Wyoming.
Mrs. Cubin. Thank you, Mr. Chairman.
I am referring to the letter that Carol Browner sent
regarding the legislation that Mr. Shimkus was discussing with
you on H.R. 5175. I would like to just quote one sentence from
it: For many years I have encouraged congressional committees
in both the House and the Senate to pass reasonable, targeted
legislation that addresses the Superfund liability of small
parties. Can you be specific with me what the EPA has done,
what those exact recommendations have been, other than the
substance of the bill H.R. 5175? In other words, what didn't
the Congress do that Administrator Browner wanted done?
Mr. Fields. Well, the Administrator was referring to in her
September 22 letter that over the last 7 years now we have
obviously implemented a set of reforms to provide liability
relief for small parties----
Mrs. Cubin. Name them. Name some for me, please,
specifically, sir.
Mr. Fields. The administrative reforms we have implemented
have provided de minimus settlements to more than 21,000
parties that are impacted by Superfund liability. We have
implemented a program of de micromis settlements where we
settled for zero dollars or one dollar for very small, tiny
parties at Superfund sites.
Mrs. Cubin. And how many small business, third-party
defendants have actually been helped by some of the things that
you have done? I personally believe you would have a very, very
difficult time in identifying people for me that have been
helped by those things.
Mr. Fields. Many of those 21,000 parties are, in fact,
small businesses. We will be happy to get back to you for the
record with an estimate of how many of those among that
universe are small businesses.
Mrs. Cubin. I would appreciate that very much.
Mr. Fields, you state that many people don't know how to
get information on solid and hazardous waste programs, or that
they are frustrated by program complexities. Why have EPA
personnel failed to provide easy access to this information?
How many employees work in providing information to the public
on solid and hazardous waste site s? And how many employees
work in the National Ombudsman office?
Mr. Fields. I don't know precisely how many people are
working in EPA's enforcement program trying to identify amounts
of waste, I think that is what you are referring to, that have
been shipped to Superfund sites. There are hundreds of them, I
know, across the country. The old records are difficult to
find. It is a hard task, doing the searches necessary to
document those waste amounts. But I would provide for the
record to the subcommittees precisely how many of our
enforcement personnel are involved in doing those tasks.
[The following was received for the record:]
The Environmental Protection Agency (EPA) recognizes the
need for people living near Superfund sites to be well-informed
and involved in decisions concerning sites in their
communities. Through years of implementation of the program,
EPA has determined that early and meaningful community
involvement in the cleanup decisions is important in order to
have a successful Superfund site cleanup. On-Scene
Coordinators, Remedial Project Managers and Community
Involvement Coordinators work with community members to ensure
they understand what Superfund activities being conducted at a
site and how the community can participate in the process. Each
year, EPA staff members conduct hundreds of public meetings and
door-to-door visits, and distribute thousands of fact sheets to
communities. Many times EPA establishes a satellite office near
a Superfund site to ensure community members have easy access
to Regional staff.
EPA also provides communities with technical assistance so
that they are better able to meaningfully participate in
cleanup decisions. The cornerstone of EPA's efforts is the
Technical Assistance Grant (TAG) program. Under the TAG
program, community organizations can apply for an initial grant
of up to $50,000 to hire their own independent technical
advisors. In FY2000, seven new TAGs were awarded, and
approximately $1.25 million was given out for these new awards
and for amendments to existing TAGs.
A corollary to the TAG program is the Technical Outreach
Services for Communities (TOSC) program. Through TOSC, EPA
funds the Hazardous Substance Research Centers to provide
independent technical assistance for communities. In FY 2000,
the TOSC program was funded at $1.300 million. TOSC was active
at 118 sites in FY 2000.
EPA's Community Advisory Group (CAG) program seeks to bring
together early in the process a broad group of stakeholders who
are interested in the work going on at the site in their
community. Started in June 1993, the CAG program is designed to
enhance community involvement in the Superfund process. A CAG
is designed to serve as the focal point for the exchange of
information among the local community and EPA, the State
regulatory agency, and other pertinent Federal agencies
involved in cleanup of the Superfund site.
Additional components of EPA's Superfund community
involvement program include translations of public documents,
and access to neutral facilitators. Some of the Superfund sites
have non-English speaking populations surrounding them. In
these cases, EPA translates public information documents into
the languages of the people living near the site and provides
interpreters at public meetings. EPA also provides community
members with access to neutral conveners, facilitators, and
mediators.
In addition to the National Ombudsman, two full-time EPA
employees, Senior Environmental Employee grantees and a number
of student interns are assigned to assist the National
Ombudsman. Also, the National Ombudsman has access to sources
outside of EPA if additional assistance is needed to help him
conduct an investigation. The Ombudsman function, depending on
the sites and issues under its review during any one time,
draws upon the existing technical resources of the Office of
Solid Waste and Emergency Response, and particularly that of
the Environmental Response Team, to supplement its
investigative efforts. Each Regional Office has designated a
Regional Superfund Ombudsmen as well.
Mr. Fields. In terms of the people involved in the National
Ombudsman's program across the country, I will defer to Mr.
Martin for more details on his immediate staff.
Mrs. Cubin. If you could just submit that for me.
[The following was received for the record:]
The Office of Ombudsman was abolished by Acting Assistant
Administrator Tim Fields on October 31, 1997, one week after my
receipt of a subpoena to appear in my official capacity before
a Federal criminal grand Jury on the Times Beach Ombudsman
case. There has been no Office of Ombudsman, therefore, since
October 31, 1997 (See, Attachment 2). During my entire tenure
as Ombudsman, I have been and continue to be the only permanent
EPA employee assigned to the National Ombudsman function.
[GRAPHIC] [TIFF OMITTED] T7120.058
[GRAPHIC] [TIFF OMITTED] T7120.059
Mr. Fields. I know there are 10 people in the regions who
are spending some of their time on this function as well.
Mrs. Cubin. I think the question that I cared the most
about is why the EPA has failed to provide easy access to this
information, as you stated yourself.
Mr. Fields. Well, it is not easy information to get access
to. Oftentimes, the records are not adequate to document how
much waste has been shipped.
Mrs. Cubin. When you say it is true that folks are being
requested to give the information, they don't know what they
are supposed to give.
Mr. Fields. Well, maybe we could provide--as you were
indicating, maybe we could provide better guidance or clarity
providing the precise types of information people ought to be
submitting. That is probably something we can work on.
Mrs. Cubin. The subcommittee asked you to provide funding
figures for the Ombudsman office for the current year and for
the previous 5 years. I wonder why you didn't provide this
specific information but instead you chose to only provide
fiscal year 1993 and 2000 information. Why is that?
Mr. Fields. I just did that just to summarize for the
record. I have actually provided for this committee--I have
with me today precise documentation that goes back for 10 years
indicating the dollar figures for the Ombudsman's Office. It
was roughly $230,000 in 1998, $360,000 in 1999, $519,000 in
2000. I have numbers going back to 1990. I think it was like
$117,000 in 1990. So I will provide for the record this piece
of paper that documents from 1991 through 2000 the precise
amounts that have been allocated for the Ombudsman function.
[The following was received for the record:]
Below is the annual budget for the National Ombudsman for
the past ten years:
FY91....................................................... $116,000.00
FY92....................................................... $113,000.00
FY93....................................................... $117,000.00
FY94....................................................... $136,000.00
FY95....................................................... $142,000.00
FY96....................................................... $158,000.00
FY97....................................................... $157,000.00
FY98....................................................... $262,000.00
FY99....................................................... $345,000.00
FY00....................................................... $519,000.00
Also, the National Ombudsman function, depending on the
sites and issues under its review during any one time, draws
upon the existing technical resources of the Office of Solid
Waste and Emergency Response (OSWER), and particularly that of
the Environmental Response Team, to supplement its
investigative efforts.
There are Regional Superfund Ombudsmen in each Regional
Office, as well. These functions are funded at a total of
roughly $1 million a year.
Mrs. Cubin. Okay. Two things--I am not sure that just those
single figures will be adequate. Will you be willing to provide
further accounting to the committee if so requested?
Mr. Fields. Sure.
Mrs. Cubin. Then, last, do you believe that the office is
being funded adequately at the levels that you----
Mr. Fields. The Ombudsman function has been funded now at
roughly $500,000 to $600,000 this year. I think, you know, and
I will--we have got to make sure we provide the resources that
Mr. Martin needs to do his functions.
Mrs. Cubin. Do you think it is adequate?
Mr. Fields. I think the budget of what we provided this
year, of 500,000 to $600,000, is an adequate amount.
Mrs. Cubin. Mr. Martin, do you think it is adequate?
Mr. Martin. I want to clarify a question you had posed
earlier about the number of people who work in my office. It is
me--and Mr. Kaufman has been assigned at least half time to the
office. I also have three interns whose term will be expiring
near the end of this year who have been with me since the
beginning of the summer. So this is the staffing. Given where
the case load is going, it is extremely large, I think more
resources will be needed.
Mrs. Cubin. Doesn't seem like much of a commitment to me on
the part of the EPA to actually try to work with constituents
with one person across the United States officially working on
their behalf to try to settle discrepancies between the Agency
and citizens.
But thank you very much. My time has expired.
Mr. Bilirakis. Would the gentlelady yield?
Mrs. Cubin. Certainly.
Mr. Bilirakis. I would agree with you. It certainly doesn't
seem to be consistent with the mission statement EPA has
regarding cleanup of these Superfund sites.
Mr. Fields, just very quickly, discussion took place
regarding the Miranda warning and the instructions that were
furnished to the Ombudsman's Office on the part of the
Inspector General. We have a September 12 letter from Mark
Bialek, Counsel to Inspector General. Is that the letter to
which you referred?
Mr. Fields. That was the letter I was referring to.
Mr. Bilirakis. Is there another letter?
Mr. Fields. I said there was a response from Mr. Kaufman. I
think we agreed we would provide that for the record as well.
Mr. Bilirakis. That was a response from Mr. Kaufman to Mr.
Bialek.
Mr. Fields. Yes.
Mr. Bilirakis. Any further communications from Mr. Bialek
in response to Mr. Kaufman?
Mr. Fields. I am not aware of any further communications. I
saw this letter, and then there was another letter from Mr.
Kaufman on this matter. I am not aware of any other
communications on this.
Mr. Bilirakis. Well, the letter from Mr. Kaufman you are
providing for the record.
Mr. Fields. I don't have a copy of that with me today, but
we did agreed to provide it.
Mr. Bilirakis. Without objection, will the----
Mr. Oxley. Without objection.
Mr. Bilirakis. Without objection, that will be the case.
All right, thank you very much.
Mr. Oxley. Gentlelady from Idaho.
Mrs. Chenoweth-Hage. Mr. Chairman, I just did some quick
math. Considering the fact that this Ombudsman has 14 major
cases going on around the Nation, he is spending, on an
average, about $36,000 per case; and that includes travel,
everything. It is--I think $500,000 is not much of a commitment
to justice and truth.
Thank you very much.
Mr. Fields. Mr. Chairman, may I just add to that comment?
I want to point out there are 10 other Regional Ombudsmen
that we are funding for about a million dollars across the
country in addition to the $500,000 that I talked about for
2000. We have also supplemented Mr. Martin's support with
support for the environmental response team at Edison, New
Jersey, other EPA staff that also provide support. So it is not
just that amount. There are other people across the country and
in headquarters who are providing support over and above that
$519,000 amount.
Ms. DeGette. Mr. Chairman, if I could add my two cents.
Mr. Oxley. Very briefly, gentlelady from Colorado.
Ms. DeGette. I agree with my colleague to the north, Mrs.
Cubin.
I would chime in, also, that with the increased caseload of
the Ombudsman and with the burdens that we are putting on him
at not just a regional level but also a national level and with
the new rules and requirements that you are in the process of
promulgating it would seem to me that the Agency would want the
make a commitment at the national level to have assistance for
the Ombudsman and professional, paid, full-time staff that
could assist in these investigations.
I would echo, my view, too, if we are going in the
direction of involvement in more cases for the Ombudsman, to be
effective and responsible I think he is going to need to have
adequate resources.
Mr. Oxley. Gentlelady's time has expired.
Let the Chair, in closing, do two or three housekeeping--
the Chair would like to enter into the record a copy of the
transmission report. This was the transmission of the
invitation to appear at the hearing today to Mr. Martin, care
of Randy Deitz. Mr. Martin, is that Randy Deits?
Mr. Fields. Randy Deitz is the gentleman behind me here.
Mr. Oxley. He work for you, Mr. Fields?
Mr. Fields. Mr. Deitz works in the Office of Congressional
and Government Relations at EPA.
Mr. Oxley. Okay. This is a copy of the hearing invitation
letter. Just for the record, the document was confirmed and
sent on 9/27 at 4:35 p.m. That was Wednesday afternoon, just
for the record.
[The material follows:]
[GRAPHIC] [TIFF OMITTED] T7120.060
[GRAPHIC] [TIFF OMITTED] T7120.061
Mr. Oxley. Mr. Fields, as you know, my colleague Helen
Chenoweth-Hage has been closely following EPA Superfund-
related activities in northern Idaho. One of her concerns is
the EPA's plans for the new Bunker Hill Mine in Kellogg, Idaho.
Congresswoman Chenoweth-Hage is not satisfied that she has
received all of the EPA documents relevant to this site. I am
going to submit several requests for information to you on her
behalf. Can I have your assurance that you will respond to the
request in a timely manner sought by my colleague from Idaho?
Mr. Fields. I will do so, sir.
Mr. Oxley. Thank you.
Finally, Mr. Fields, in the discussion about the funding
for ombudsmen and the like, you had indicated you had all the
funding records with you.
Mr. Fields. Yes, and our Congressional Affairs Office will
make sure your staff are given those documents.
Mr. Oxley. Can we have those submitted for the record?
Mr. Fields. Sure.
Mr. Oxley. Thank you.
[The following was received for the record:]
Below is the annual budget for the National Ombudsman for
the past ten years:
FY91.................................................... $116,000.00
FY92.................................................... $113,000.00
FY93.................................................... $117,000.00
FY94.................................................... $136,000.00
FY95.................................................... $142,000.00
FY96.................................................... $158,000.00
FY97.................................................... $157,000.00
FY98.................................................... $262,000.00
FY99.................................................... $345,000.00
FY00.................................................... $519,000.00
Also, the National Ombudsman function, depending on the
sites and issues under its review during any one time, draws
upon the existing technical resources of the Office of Solid
Waste and Emergency Response (OSWER), and particularly that of
the Environmental Response Team, to supplement its
investigative efforts.
There are Regional Superfund Ombudsmen in each Regional
Office, as well. These functions are funded at a total of
roughly $1 million a year.
Mr. Oxley. The gentleman from Illinois.
Mr. Shimkus. Thank you.
I know we are trying to move forward, but I do want to ask
Mr. Martin--and I appreciate--I really do appreciate you being
here and the challenges, based upon current law, reading some
of the descriptions, I am not sure how--I think it is a very
tough job that you have. I would like, if you would then, to
follow up with legislation to answer a question on whether the
Ombudsman should be reauthorized. And if the answer is yes,
what would be your suggestions of how it would change?
Now being an Ombudsman and being part of the EPA, I don't
know how you effectively do that without allowing the EPA's
hand to get involved in the recommendation. I have I think a
good sense that you want to, you know, continue a role for the
Ombudsman, and I think you probably had some ideas of how we
can improve it.
And, Mr. Fields, I would respectfully ask that you allow
him to submit those recommendations to us unedited so that we
can look at the reauthorization and look at ways that we can
improve it.
Mr. Fields. I have no problem with that at all.
[The following was received for the record:]
The Hazardous Waste and Superfund Ombudsman Office should be
reconstituted and reauthorized consistent with H.R. 3656 for a period
of ten (10) years. Moreover, the legislation to reauthorize the Office
of Ombudsman should include, at a minimum:
* Re-establishment of the Office of Ombudsman;
* Allocation of resources under the control of the Office and as
defined by the Office, to implement the function;
Authorization to perform duties consistent with the IRS Ombudsman
function, already established by Congress.
Mr. Shimkus. Based upon the terminology or the language,
the Ombudsman shall not affect any procedures or grievances,
appeals or administrative matters which comes out of the
current law, and I didn't get a chance to ask about your
involvement with small businesses and individual aspects. It
seems like the overall issue and the overall fight--but I think
there seems to be--we need to develop some more independence
and we need I think to broaden the scope a little bit.
Because a lot of us, we are Members, we are ombudsmen; and
that is why we get so fired up about this. So I think there is
a lot of sympathy for the battles that you have to fight, and I
just appreciate you being here. It is usually not an enjoyable
experience sometimes, but it is healthy as we move forward on
legislation.
So if you would provide that--Mr. Fields, if you would
allow that to occur, I would appreciate that.
With that, Mr. Chairman, I yield back my time.
Mr. Oxley. The gentleman may respond very briefly.
Mr. Fields. We will definitely adhere to the Congressman's
request in terms of Mr. Martin's providing his suggestions to
the subcommittees on the views on how the Ombudsman operation
should operate.
Mr. Oxley. Gentlemen, thank you for your testimony.
Appreciate it.
We will now turn over the Chair to the co-chairman, Mr.
Bilirakis.
Mr. Sawyer. Mr. Chairman, just before, let me say thank you
for the opportunity to participate in this way and thank you to
both of our witnesses for their responses.
Mr. Oxley. Next session you may want to join the
subcommittee.
Mr. Bilirakis [presiding]. I would ask, as I move over to
the main chair, that a representative of the administration
stay in the room to hear the testimony, particularly in this
case, of the citizens' panel. So, Mr. Fields, it would be great
if you can stay, but if you can't, we understand. But
hopefully, you will have someone here to take notes and all
that. Because we are all working for the same people, that is
the taxpayers; and we should all be greatly concerned.
Mr. Fields. I agree. I, unfortunately, cannot. I have to go
to a meeting with our Administrator. But I will assure you we
will have staff here to be available.
Thank you, Mr. Chairman.
Mr. Bilirakis. Next panel, Mr. Bret Bowers, Executive
Director of Community Leaders for EPA Accountability Now! from
Coeur d'Alene, Idaho; Ms. Mary Mosley, former city commissioner
and civic activist from Tarpon Springs, Florida; and Ms.
Kimberly Boggiatto from Denver, Colorado.
I would hope as we go into your testimony that you will
complement or supplement your written statement in your 5
minutes. Your entire written testimony, by the way, is part of
the record.
We do have legislation to reauthorize the Office of the
Ombudsman which would provide specifics in terms of its
functions and an increase in funding, and I would hope that we
can get the support of all the members of the subcommittee.
Having said all that, in view of the way you have lined up
there, we will start off with Ms. Boggiatto. Please proceed,
ma'am.
STATEMENTS OF KIMBERLY BOGGIATTO; MARY MOSLEY; AND BRET
BOWERS, EXECUTIVE DIRECTOR, COMMUNITY LEADERS FOR EPA
ACCOUNTABILITY NOW!
Ms. Boggiatto. Good afternoon, Mr. Chairman and members of
the subcommittees. I am extremely honored by your invitation to
testify before you today with respect to the role of the EPA
National Ombudsman in addressing concerns of local communities.
I would also like to thank Congresswoman DeGette and her
staff for her hospitality over the past couple of days.
I today am representing Clean-It!, which is our local
citizens' group that was formed for the sole purpose of
advocating for the removal of the radioactive and toxic waste
at the Shattuck Superfund site in south Denver. And
Congresswoman DeGette's office was nice enough to provide us
with the beautiful picture over there of our very own
radioactive waste dump.
Clean-It! stands for Citizens Loving Our Environment and
Neighborhood--Invincible Together, and not only does it make a
great acronym but I think it is pretty accurate as far as what
we have been able to accomplish.
The Shattuck site is contaminated by radioactive and toxic
wastes from a decade of radium processing. The contamination
found at the Shattuck site is not unique in Denver. There were
approximately 10 other Superfund sites with similar
contamination. What makes Shattuck unique is that it is the
only one of these sites where the EPA decided that the
appropriate remedy was onsite disposal. EPA decided for all of
the other sites that removal of the radioactive soils should be
to a licensed, low-level radioactive waste disposal facility
and that that was the only remedy that was--both satisfied
existing laws and regulation and was protective of human health
and the environment. In fact, EPA originally determined that
the wastes at the Shattuck site should also be removed and then
went to public comment with that preferred alternative back in
the early 1990's.
However, after closing the public comment period, EPA
decided, apparently, to reverse its decision and subsequently
issued a decision that ordered the radioactive materials left
on the site.
The Ombudsman's investigation was critical in discovering
sort of behind-closed-doors meetings that EPA Region 8 held
with the owner of the site, and these meetings appeared to have
factored into EPA's reversal of their original recommendation.
In early 1999, the National Ombudsman Bob Martin and
Investigator Hugh Kaufman came to Denver to listen to the
citizens' concerns regarding Shattuck. Mr. Martin and Mr.
Kaufman were the first EPA officials who actually listened.
They treated the citizens with respect and with dignity, and
that was in sharp contrast to how the citizens had been treated
by Region 8 officials over the previous decade.
Also, in the spring of 1999, EPA Assistant Administrator
Timothy Fields began to look into EPA Region 8's management of
the Shattuck site. Assistant Administrator Fields initiated a
mediated stakeholder process that lasted roughly 6 months and
included a thorough technical review of the existing remedy. I
believe that the Ombudsman's investigation swayed EPA
headquarters to focus attention and resources on Shattuck.
The Ombudsman's investigation was essential in exposing
improperly withheld documents, which I hear is a theme at many
of these other sites, as well as concerns about the kinds of
waste that might be disposed of at the Shattuck site. And we
have heard some talk from Congresswoman DeGette today about the
potential defense waste and other such things.
In short, the Ombudsman's investigation of EPA Region 8's
mismanagement of Shattuck was instrumental in the recent
decision that Shattuck wastes must be removed from the site.
The citizens knew that if an honest review were conducted the
wastes would have to be removed. Bob Martin and his staff were
the only EPA officials truly willing to look at the abuse of
power by and gross incompetence of EPA Region 8 officials and
staff. I believe that this abuse of power and incompetence not
only extends up to Regional Administrator Bill Yellowtail but
also emanates from him.
My experience working with the Ombudsman's Office has
bought to my attention some changes that would improve the
operation of the office. The improvements essentially fall
within two categories: resources and independence.
It is clear from my experience that additional staff would
be very useful for the Ombudsman's Office. This would allow for
more thorough reviews and investigations as well as the ability
to accept more cases. The office also needs a larger budget not
only to fund the additional staff but also to hire experts and
pay for independent laboratory analyses where appropriate.
Perhaps even more important is the issue of independence.
It is imperative that the Ombudsman has the final decision as
to which cases are investigated and how the office's budget is
allocated. It is my impression that EPA too often attempts to
exert influence over the cases that are accepted for review and
the extent to which a case is investigated by constraining the
activities that will be funded. Imagine if EPA could determine
these subcommittees budgets so as to dictate which oversight
hearings could be held or which bills could be considered. Such
a situation would clearly hinder your ability to oversee the
EPA and result in an enormous disservice to the citizens of
this Nation.
Just this kind of disservice results when the Ombudsman's
budget is manipulated so as to impede his investigations. The
Ombudsman and his staff are uniquely prepared to review and
investigate EPA's actions because of their extensive knowledge
and applicable statutes and regulations as well as their broad
technical and scientific knowledge. Because the Ombudsman's
Office accepts cases at the request of elected officials, it
functions to support and enhance your ability to scrutinize the
actions and decisions of the EPA.
Mr. Bilirakis. Please summarize, if you could, Ms.
Boggiatto.
Ms. Boggiatto. Certainly. I would just like to add, there
are guidelines out there that have been discussed of those of
the EPA as well as some guidelines that appear to be relevant
that were published in 1990 in the Federal Register on the role
of the Ombudsman within Federal agencies that uphold the
independence and integrity of this office. I do not believe
that EPA administration is the appropriate place for the
guidelines to be developed and that that would serve generally
to diminish independence and compromise the integrity of the
Ombudsman's Office.
Essentially, the argument for a strong EPA Ombudsman comes
down to simple human nature: The best incentive for being
honest is knowing you would be caught if you weren't. That is
how I see the role of the Ombudsman, essentially, is that the
further resources you give the Ombudsman's Office the more the
EPA will realize that they have to make good decisions and they
have to be accountable to the people. Because if they are not,
we have an active and aggressive Ombudsman's Office who will
expose the injustices, and I think that will serve to really
reform the Agency and stop many of the situations we all have
experienced.
[The prepared statement of Kimberly Boggiatto follows:]
PREPARED STATEMENT OF KIMBERLY BOGGIATTO
Good morning Mr. Chairmen and members of the subcommittees. I am
extremely honored by your invitation to testify before you today with
respect to the role of the Environmental Protection Agency (EPA)
National Ombudsman in addressing concerns of local communities. My name
is Kimberly Boggiatto and I am representing Clean-It! Clean-It! stands
for Citizens loving our environment and neighborhood--Invincible
together! We are a local citizens' group that formed to advocate for
the removal of the radioactive and toxic waste from the Shattuck
Superfund site in south Denver.
The Shattuck site is contaminated by radioactive and toxic wastes
from decades of radium processing. The contamination found at the
Shattuck site is not unique in Denver; there were approximately ten
other superfund sites with similar contamination. What makes Shattuck
unique is that it is the only one of these sites where the EPA decided
that the appropriate remedy was onsite disposal. EPA decided for all of
the other sites that removal of the radioactive soils to a licensed,
low-level radioactive waste disposal facility was the only remedy that
both satisfied existing laws and regulations and was protective of
human health and the environment. In fact, EPA originally determined
that the wastes should be removed from the Shattuck site as well.
However, after closing the public comment period in which strong
support for removal was expressed, EPA issued a decision that ordered
the radioactive soil disposed of on site. The Ombudsman's investigation
was critical in discovering the ``behind closed doors'' meetings that
EPA Region VII held with the owner of the site which appear to have
factored into EPA's final decision to bury radioactive waste only a
block from residences, within the densely populated City of Denver.
In early 1999, the National Ombudsman, Bob Martin, and Investigator
Hugh Kaufman, came to Denver to listen to the citizens' concerns
regarding Shattuck. Mr. Martin and Mr. Kaufman were the first EPA
officials who actually listened to the concerns of our community. They
treated the citizens with respect and dignity, in contrast to the
numerous EPA Region VIII officials and staff over the previous decade.
Also in the spring of 1999, EPA Assistant Administrator for the Office
of Solid Waste and Emergency Response (OSWER), Timothy Fields, began to
look into EPA Region VIII's management of the Shattuck site. Assistant
Administrator Fields initiated a mediated stakeholder process that
lasted roughly six months and included a technical review of the
existing remedy. I believe that the Ombudsman's investigation swayed
EPA Headquarters to focus attention and resources on Shattuck.
The Ombudsman's investigation was essential in exposing improperly
withheld documents as well as concerns about the kinds of waste that
might be disposed of at the Shattuck site. In short, the Ombudsman's
investigation of EPA Region VIII's mismanagement of Shattuck was
instrumental in the recent decision that the Shattuck wastes must be
removed from the site. The citizens knew that if an honest review were
conducted, the wastes would have to be removed. Bob Martin and his
staff were the only EPA officials truly willing to look at the abuse of
power by and gross incompetence of EPA Region VIII officials and staff.
I believe that this abuse of power and incompetence not only extends up
to Regional Administrator Bill Yellowtail, but also emanates from him.
My experience working with the Ombudsman's Office has brought to my
attention some changes that would improve the operation of the Office.
The improvements essentially fall into two categories: resources and
independence.
It was clear from my experience that the Ombudsman's Office would
be well served by additional investigators. Additional staff would
allow for more thorough reviews and investigations as well as the
ability to accept more cases. The Office also needs a larger budget not
only to fund the additional staff, but also to hire experts and pay for
independent laboratory analyses as appropriate.
Perhaps even more important is the issue of independence. It is
imperative that the Ombudsman has the final decision as to which cases
are investigated and how the Office's budget is allocated. It is my
impression that EPA too often attempts to exert influence over the
cases that are accepted for review and the extent to which a case is
investigated by constraining the activities that will be funded.
Imagine if EPA could determine the subcommittees' budgets so as to
dictate which oversight hearings could be held or which bills could be
considered. Such a situation would clearly hinder your ability to
oversee the EPA and result in an enormous disservice to the citizens of
this nation.
Just this kind of disservice results when the Ombudsman's budget is
manipulated so as to impede his investigations. The Ombudsman and his
staff are uniquely prepared to review and investigate EPA's actions
because of their extensive knowledge of the applicable statutes and
regulations as well as their broad technical and scientific knowledge.
Because the Ombudsman's Office accepts cases at the request of elected
officials, it functions to support and enhance your ability to
scrutinize the actions and decisions of the EPA.
Fortunately, there are guidelines that describe the proper role and
operation of the Ombudsman. The American Bar Association has
established guidelines that appear to be well suited to the EPA
National Ombudsman. These guidelines would provide for the independence
and integrity necessary for a constructive Ombudsman's Office. Also, in
1990 recommendations regarding the role of Ombudsmen within federal
agencies were published in the Federal Register. These guidelines also
appear to uphold the independence and integrity of the Ombudsman. Given
that independent and appropriate guidelines already exist, EPA should
not attempt to create its own set of guidelines for the operation of
the Ombudsman's Office. Internal guidelines would inevitably diminish
independence and compromise the integrity of the Ombudsman when just
the opposite result is needed.
The argument for a strong EPA Ombudsman comes down to simple human
nature: The best incentive for being honest, is knowing you would be
caught if you weren't. This tenet conveys the vital role that the
Ombudsman's Office plays within EPA. In order to continue in that role,
the Ombudsman's Office needs support from Congress both in terms of a
secure source of funding and a clear statutory mandate of independence.
Thank you again for the opportunity to testify before you today. I
am happy to answer any questions that you may have.
Mr. Bilirakis. Thank you very much. Very well put.
Ms. Mosley, you are on. Please pull the microphone forward.
We want to be able to hear.
STATEMENT OF MARY MOSLEY
Ms. Mosley. I want to thank the distinguished members of
the two subcommittees for the opportunity to speak regarding
the role of the Ombudsman's Office.
I have been involved in the Stauffer Superfund site in
Tarpon Springs, Florida, for nearly 25 years. During that time,
I learned that Environmental Protection Agency Region 4 is an
agency out of control and conducts their duties as though their
allegiance is to the polluter rather than to the Superfund
communities they are mandated to protect. The needs of our
community have not been met; and, fortunately for us,
Congressman Mike Bilirakis and Robert Martin have been holding
hearings since last December asking questions that the EPA has
not wanted to answer.
The EPA has withheld information from our community and is
very polished at misrepresenting the truth, a fact which I am
delighted to see has not escaped this panel. At one hearing, in
response to Congressman Bilirakis's polite request to remain
more than 10 minutes to answer the community's questions, EPA
adamantly refused and flounced out of the meeting. The
community was outraged that the EPA would treat an elected
official acting on our behalf in such a manner.
The EPA chose a monolith as a remedy for our Superfund site
which would cover 25 to 35 acres without having first conducted
sufficient testing to determine if the site could ever support
a mound of such magnitude. The site, which contains wastes such
as asbestos, arsenic, radium 226 and more, already has
sinkholes, is surrounded by sinkholes and is, coincidentally,
located directly above two aquifers, one of which serves as the
main drinking water source for a large portion of the State.
Should the proposed monolith fail, it would be disastrous to
important water supplies.
I might add there have been experts that have attended
meetings that said that the monolith will not be successful,
that the sinkholes have already opened communication between
the two aquifers.
Robert Martin and his chief investigator Hugh Kaufman
exposed the flaws of the monolith at Shattuck in Denver. After
the investigation by the Ombudsman's Office, the EPA reversed
itself and admitted that the only way to ensure the public
health and welfare was for Shattuck's wastes to be hauled to a
repository.
The elected officials of Tarpon Springs also feel that the
removal of waste is the only safe solution for our community,
but the wastes at our Superfund site are so toxic that they
would have to be treated before a nuclear dump would accept it.
In conclusion, the EPA has worked for 6 years with
insufficient investigations. They now admit to having data
gaps. The EPA has neglected, to date, to adequately define the
magnitude and extent of groundwater contamination originating
from the site. Despite having a poor record of scientific
approach, the EPA continues to decrease the number of
contaminants of concern. There are other problems too numerous
to mention in the brief time allotted today.
To counter the failure of the EPA to responsibly administer
the Superfund Act, the Ombudsman's Office must be well funded
and independent of any attempts that might be made to silence
the voice of truth. The Ombudsman's Office is one of the best
examples of good and honest government. Please give them the
support needed to continue doing their job well.
Thank you.
[The prepared statement of Mary Mosley follows:]
Prepared Statement of Mary Mosley
I would like to thank the distinguished members of the Subcommittee
on Health & Environment and the Subcommittee on Finance & Hazardous
Materials for the opportunity to speak regarding the role of the
Ombudsman's Office.
I have been involved with the Stauffer Superfund Site in Tarpon
Springs, Florida for nearly twenty five years. During that time, I
learned that the Environmental Protection Agency (EPA) Region 04 is an
agency out of control and conducts their duties as though their
allegiance is to the polluter rather than to the Superfund communities
they are mandated to protect. The needs of our community have not been
met and fortunately for us, Congressman Mike Bilirakis and Robert
Martin, EPA Ombudsman have been holding hearings since last December
asking questions that the EPA has not wanted to answer.
The EPA has withheld information from our community and is very
polished at misrepresenting the truth. At one hearing, in response to
Congressman Bilirakis' polite request to remain more than ten minutes
to answer the community's questions, EPA adamantly refused and flaunted
out of the meeting. The community was outraged that the EPA would treat
an elected official acting on our behalf in such a manner.
The EPA chose a monolith as a remedy for our Superfund Site which
would cover twenty five to thirty five acres without having first
conducted sufficient testing to determine if the Superfund Site could
even support a mound of such magnitude. The Site which contains wastes
such as asbestos, arsenic, radium 226 and more, already has sinkholes,
is surrounded by sinkholes, and is coincidentally located directly
above two aquifers--one of which serves as a main drinking water source
for a large portion of the state. Should the proposed monolith fail, it
would be disastrous to important water supplies.
Robert Martin and his chief investigator Hugh Kaufman exposed the
flaws of the monolith at Shattuck in Denver, Colorado. After the
investigation by the Ombudsman's Office, the EPA reversed itself and
admitted that the only way to ensure the public health and welfare was
for Shattuck's wastes to be hauled to a repository.
The elected officials of Tarpon Springs also feel that the removal
of wastes is the only safe solution for our community, but the wastes
at our Superfund Site is so toxic that it would have to be treated
before a nuclear dump would accept it.
In conclusion, the EPA has worked for six years with insufficient
investigations which they now admit to having ``data gaps.'' The EPA
has neglected, to date, to adequately define the magnitude and extent
of groundwater contamination originating from the Site. Having a poor
record of scientific approach, the EPA continues to decrease the number
of Contaminants of Concern for the Site. There are other problems too
numerous to mention in the brief time allotted today.
To counter the failure of the EPA to responsibly administer the
Superfund Act, the Ombudsman's Office must be well funded and
independent of any attempts that might be made to silence the voice of
truth. The Ombudsman's Office is one of the best examples of good and
honest government. Please give them the support needed to continue
doing their job well.
Thank you.
Mr. Bilirakis. Thank you, Mary.
Mr. Bowers, you are on, sir.
STATEMENT OF BRET BOWERS
Mr. Bowers. Thank you, sir. Thank you, Mr. Chairman. Good
morning.
My name is Bret Bowers. It has been nearly 30 years since I
have been to Washington, DC. I used to live here as a young
boy. I am proud to be back.
I am a husband, and I am a father. I am a proud, third-
generation Air Force veteran, and I love my country, and I love
living in Coeur d'Alene, Idaho. However, the circumstances that
have brought me here are very disturbing.
I am here on behalf of C.L.E.A.N.--Community Leaders for
EPA Accountability Now--based in Coeur d'Alene, Idaho. I am
here to tell our story, to tell you what EPA has done in our
community and how they have failed to take action on our
concerns. Even more, I want to explain how important it has
been to have an Ombudsman to whom we can appeal when no one
else in the EPA would listen.
C.L.E.A.N. was created in 1998 in response to the EPA's
intention of declaring Lake Coeur d'Alene and our entire region
a Superfund site. It doesn't sit well, knowing that National
Geographic magazine has named our lake one of the five most
beautiful lakes in the world, and today the Idaho Department of
Environmental Quality calls lake Coeur d'Alene a world-class
lake.
C.L.E.A.N. organized with support of community and business
leaders, the Chamber of Commerce, realtors, citizens and
elected officials--including county commissioners, city
councilmen, mayors and State legislators. We committed
ourselves to understand the EPA's processes, recognizing the
history that already exists with Superfund in neighboring
Shoshone County, home of the Bunker Hill Superfund site and
upstream of Lake Coeur d'Alene.
The problem that has brought me to here today took 100
years to create, 14 hours to explain during our Ombudsman
hearing, and I have 5 minutes.
EPA and the Department of Justice actions threaten not only
our economic stability but also our environment and the way
others around the region and the world look at our region.
The EPA would like the Ombudsman and all of us to believe
the Bunker Hill was never limited to the 21 square mile
boundary the EPA helped create on the National Priorities List
in 1983. After 17 years, $200 million has been spent in the
box. The EPA now wants to start completely over and expand the
site into a 1,500 square mile region, creating the Nation's
largest Superfund site. Just when many of us thought the end
was near, the EPA wants to start over by changing the rules.
Therefore, any legislation to reauthorize the Ombudsman is
good news to us. But, sir, we need more than an internal EPA
investigation on this. We welcome the Federal Government's
help, not its heavy hand.
Until the Ombudsman hearing, our local elected leaders
believed the only way they had their voices heard and concerns
heard was to pay for the opportunity through friends of the
court amicus briefs in litigation at the U.S. District and
appellate court levels.
We recognize the need for cleanup. So do the mines. They
have offered $250 million to settle a lawsuit and begin
cleanup.
Many of us are working in cooperation with the State to
finalize a plan that prioritizes cleanup and develops
legislation for Federal funding that you will have the
opportunity to vote on next year. But questions have been
raised dealing with not just the environment, but human health.
How can the EPA discount the scientific, site-specific
evidence showing children living in the Bunker Hill site have a
much lower accumulation of blood lead than EPA's national
default models show? Why won't the EPA consider lead-based
paint as a potential source of exposure when the majority of
homes in the Silver Valley were built before the 1970's?
Today, inside the Bunker Hill site, 94 percent of the
children are within the EPA's remedial action goal. On average,
communities inside the Bunker Hill site have been under the
Centers for Disease Control's standard since 1990.
On the environmental side, the discharge from the operating
mines today account for less than 1 percent of the metal
floating in the river system. But after $200 million have been
spent in the box, we now know that EPA's central impoundment
area has become the largest source of metals into the south
fork of the Coeur d'Alene River.
Why should EPA be allowed to mandate a water quality
standard State and industry must meet but the EPA cannot
achieve itself at the Bunker Hill site?
Outside the box, science tells us the largest loader of
lead into our watershed is the result of erosion from the river
banks. So why did EPA stall and then reduce in size a
stabilization project to the point there may not be any
tangible results?
We are concerned because the threat of basin-wide Superfund
could have devastating economic ripples throughout the inland
Northwest.
Here are the facts for Shoshone County where hard-working
families want to turn around the stigma Superfund has placed on
them for the last 20 years. What used to be the world's largest
lead, silver and zinc mining district with 90 operating mines
is now down to just three; 7,500 miners are down to 800. In
fact, it is the only county in Idaho with a population
decrease, one of only four nationwide. Shoshone County has had
the State's highest unemployment rate and highest child poverty
rate and has seen its assessed value drop from $1.3 billion to
less than $500 million.
Those facts have caught the attention of all of us, trying
to overcome the onslaught of environmental regulations that
have but all shut down our region's natural resource
industries.
EPA believes they can expand the site even though Lake
Coeur d'Alene meets Federal drinking water standards. EPA has
studied and found our beaches are safe. We can swim and play in
the lake all we want, and the Centers for Disease Control's
ATSDR has determined our fish in the lake and in the river and
the lateral lakes and the flood plain are safe to eat.
So why do Federal plans for cleanup call for dredging our
river and the lake with a $3.8 billion price tag that will
bankrupt not only businesses and communities but it will ruin
water quality for decades to come? Why should the EPA be
allowed to characterize our beautiful region in a negative
light as they have done repeatedly in national publications?
The Ombudsman investigation put a spotlight on EPA's
position onsite boundaries. EPA's view gives them an open-ended
time line at further expense to our communities, our private
property rights and our environment.
So it all boils down to trust. How can we trust the EPA
when in 1991 Region 10 Administrator Dana Rasmussen wrote to
Congressman Larry Larocco with, quote, let me state
unequivocally, it is not EPA's intention to expand the
boundaries of the site. We recognize that there are many other
regulatory tools besides Superfund legislation to affect
environmental improvements.
Yet, now we're facing major expansion.
Mr. Chairman, I will summarize in closing.
How can we trust the Department of Justice when they are
the driving force behind the lawsuit and tried to prevent the
Ombudsman from taking part in our recent hearing? We shouldn't
be forced to spend the next 30 years paying off a debt our
Federal Government helped create by sending troops to help mine
metals during the world wars.
I ask you to ensure the National EPA Ombudsman's Office is
reauthorized and that you pass new legislation that seeks to
secure Federal funding for basin cleanup in our region, prevent
further delays in remediation and restore citizens' faith in
government. After all, had the Ombudsman's Office not been
called in or if C.L.E.A.N. hadn't formed, do you think any of
the concerns or questions raised here today by not only me but
these other two ladies here would have been brought to
anybody's attention?
Thank you very much.
[The prepared statement of Bret Bowers follows:]
PREPARED STATEMENT OF BRET BOWERS, COMMUNITY LEADERS FOR EPA
ACCOUNTABILITY NOW,
Good morning, my name is Bret Bowers. It's been nearly 30-years
since I lived in Washington D.C. I've returned, as a proud, 3rd-
generation Air Force veteran, a husband and a father . . . who loves my
family and these great United States.
However, the circumstances that have brought me here are very
disturbing. I am here on behalf of C.L.E.A.N., Community Leaders for
EPA Accountability now based in Coeur d'Alene, idaho.
I'm here to tell our story . . . to tell you what EPA has done in
our community and how they've failed to take action on our concerns.
Even more, I want to explain how important is has been to have the
Ombudsman to whom we can appeal to . . . when no one else in the EPA
will listen.
CLEAN was created in 1998 . . . in response to the EPA's intention
of declaring Lake Coeur d'Alene and our entire region a Superfund site.
It does not sit well . . . knowing that National Geographic magazine
has named our lake one of the five most beautiful lakes in the world.
Today, the Idaho Department of Environmental Quality calls Lake Coeur
d'Alene . . . a world class lake.
C.L.E.A.N. organized . . . with support of community and business
leaders, the Chamber of Commerce, realtors, citizens and elected
officials--including, county commissioners, city councilmen, mayors,
and State legislators.
We committed ourselves to understand the EPA's process . . .
recognizing the history that already exists with superfund in
neighboring Shoshone County . . . home of the Bunker Hill Superfund
site and upstream of Lake Coeur d'Alene.
The problem that has brought us to this point . . . took 100-years
to create . . . 14-hours to explain during our recent Ombudsman hearing
. . . and a problem I must describe in 5-minutes.
EPA and Dept. of Justice actions threaten not only our economic
stability, but also our environment . . . and the way others around the
country and the world look at our region.
The EPA would like the ombudsman and all of us to believe the
Bunker Hill site was never limited to the 21-sq. mile boundary they
helped establish on the national priorities list in 1983.
After 17-years at the site, $200-million dollars have been spent.
The EPA now wants to start completely over, and expand the 21.sq-mile
``box'' into a 1500-sq. mile region . . . creating the nation's largest
Superfund site. Just when many thought the end was near, the EPA is
changing the rules.
Therefore, any legislation to reauthorize the Ombudsman is good
news to us. But . . . we need more than an internal EPA investigation.
We welcome the Federal Government's help . . . not its heavy hand.
Until the Ombudsman hearing, our local elected leaders believe the
only way they had their concerns heard, was to pay for the opportunity
. . . through ``friends of the court'' briefs in litigation at the U.S.
District and Appellate Court levels.
We recognize the need for clean-up. So do the mines . . . they've
offered $250-million to settle the lawsuit and begin clean-up.
Many of us are working in cooperation with the State of Idaho to
finalize a plan that prioritizes clean-up . . . and develops
legislation for Federal funding that you will have the opportunity to
vote on next year.
But questions have been raised dealing with not just the
environment, but human health also.
How can the EPA discount the site specific evidence showing
children living in the Bunker Hill site have a much lower accumulation
of blood-lead than EPA's national default models show?
Why won't the EPA consider lead-based paint as a potential source
of exposure when the majority of homes in the Silver Valley, were built
before the 1970's?
Today, inside the Bunker Hill Superfund ``box'' . . . 94% of the
children are within the EPA's remedial action goal. On average,
communities inside the Superfund site have been under the Centers for
Disease Control's standard since 1990.
On the environmental side today . . . the discharge from the
operating mines accounts for less than one-percent of the metals
loading in the river system. But, after $200-million dollars have been
spent in the box . . . we now know the EPA's central impoundment area
has become the largest source of metals into the south fork of the
river.
Why should EPA be allowed to mandate a water quality standard State
and industry must meet, but the EPA cannot achieve itself . . . at the
Bunker Hill site?
Outside the box . . . science tells us the largest loader of lead
into our watershed . . . is the result of erosion from the river banks.
So why did EPA stall and then reduce in size a stabilization project to
the point . . . there may not be any tangible results?
We are concerned because the threat of basin-wide Superfund could
have devastating economic ripples throughout the inland northwest.
Here are the facts for Shoshone County . . . where hard working
families want to turn around the stigma Superfund has had on them.
What used to be the world's largest lead, silver and zinc mining
district with 90 operating mines . . . is now down to just three in
full-time production. 7500-miners are down to 800. In fact, it's the
only county in Idaho with a population decrease, one of only four
nationwide.
Shoshone County has had the State's highest unemployment rate and
highest child-poverty rate. And it has seen its assessed value drop
from $1.3-billion to less than $500-million dollars.
Those facts have caught the attention of all of us . . . trying to
overcome the onslaught of environmental regulations that have all but
shut down our region's natural resource industries.
EPA believes they can expand the site . . . even though Lake Coeur
d'Alene meets Federal drinking water standards. EPA has studied and
found our beaches are safe. We can swim and play in the lake all we
want . . . and the Centers for Disease Control's A-T-S-D-R has
determined our fish in the lake and the river are safe to eat.
So why do Federal plans for clean-up call for dredging our river
and the lake . . . with a $3.8-billion dollar price-tag that will
bankrupt businesses and communities and ruin water quality for decades
to come?
Why should the EPA be allowed to characterize our beautiful region
in a negative light as they have done in national publications?
The Ombudsman investigation put a spotlight on EPA's position on
site boundaries. EPA's view gives them an open-ended timeline at
further expense to our communities, our private property rights and our
environment.
And so it all boils down to trust. How can we trust the EPA . . .
when in 1991, Region-10 Administrator Dana Rasmussen wrote to
Congressman Larocco with, ``Let me state unequivocally, it is not EPA's
intention to expand the boundaries of the site. We recognize that there
are many other regulatory tools besides superfund legislation to affect
environmental improvements.'' Yet, now we're facing major expansion?
How can we trust the Department of Justice when they are the
driving force behind the lawsuit, and tried to prevent the Ombudsman
from taking part in our recent hearing?
In closing, we shouldn't be forced to spend the next 30-years
paying off a debt our Federal Government helped create . . . by sending
troops to help mine metals during the world wars.
I ask you to ensure the national EPA Ombudsman's Office is
reauthorized. and, that you pass new legislation that seeks to secure
Federal funding for basin clean-up, prevent further delays in
remediation and restore citizen's faith in government.
After all, had the Ombudsman not been called in, or if CLEAN hadn't
formed . . . do you think any of the concerns and questions raised
today would have been brought to your attention?
Mr. Bilirakis. Thank you, Mr. Bowers.
I am going to recognize myself.
I know that Ms. Mosley, for instance, has been a very
active environmentalist in our area for a long, long time, very
much concerned about the environment, very consumer oriented. I
would wager to say that Ms. Boggiatto and Mr. Bowers have been
in the same category. So the thing that has really amazed me
about all of this is the fact that it is the people who are so
very pro-environment who appear to have lost confidence in the
credibility of the Environmental Protection Agency.
Now, any comments regarding that, Ms. Boggiatto?
Ms. Boggiatto. Yes, thank you.
Actually, when I first moved----
Mr. Bilirakis. Short comments, I only have 5 minutes.
Ms. Boggiatto. Sure. I have lost some confidence. I used to
have a lot of faith in the Environmental Protection Agency to
always use the best available science and data, and after the
involvement with the Shattuck site I realized that that is not
always the case, which is unfortunate.
Mr. Bilirakis. Yes, it is really unfortunate, isn't it? You
start to lose faith in your government, so to speak.
Ms. Mosley.
Ms. Mosley. Congressman Bilirakis, before Mr. Martin's
office was contacted, we tried to contact, many of us in the
community, the Region 4 Ombudsman's Office; and, to my
knowledge, none of our calls were returned. At least I can
speak for myself, none were returned.
Thank you, sir.
Mr. Bilirakis. And that is significant because there are
regional Ombudsmen, so to speak. Mr. Fields referred to them,
with the idea of basically trying to convince us that it is
really not just one Ombudsman but a number of them spread
around the country. And what you are saying is that, for the
longest time, they still didn't return your calls. I know your
persistence and your perseverance, and I think that also speaks
for many of the people in the group down there who have shown
their concern in this regard.
Ms. Mosley. That is right.
Mr. Bilirakis. EPA is in the room, and I hope they are
picking all that up.
Mr. Bowers.
Mr. Bowers. Mr. Bilirakis, what I also would like to say is
simply that, to give you an idea, just during the RIFS
litigation, litigation for a lawsuit that is going to go to
trial in January, and during the RIFS that we have been
involved with over the Coeur d'Alene Basin, just in the last
2\1/2\ years EPA has spent roughly a million dollars a month on
litigation and studies instead of cleanup. That should really
summarize, hopefully, to you and to all the folks here on
Capitol Hill that if they are so concerned about the
environment then why are they spending more money fighting
through litigation rather than helping the communities that
know that some cleanup still may need to be done regardless of
how it got there or who is responsible?
Mr. Bilirakis. I know Ms. Chenoweth-Hage will go into this,
but when did the EPA's involvement in Coeur d'Alene start?
Mr. Bowers. Well, the EPA started in 1983 with the Bunker
Hill Superfund site. It was declared as the box on the NPL, as
my testimony indicated, and now they want to start completely
over and start from square one. And our communities, especially
the communities surrounding the Bunker Hill site in particular,
have had it; and they are literally at breaking point in terms
of emotional stress over this issue and what lies ahead in
terms of the next potentially 30 years.
Mr. Bilirakis. Are there EPA personnel located in the area
that have been there for some time?
Mr. Bowers. Yes, there are.
Mr. Bilirakis. I have always been wanting to get that clear
in my mind. Go ahead. Why don't you explain that?
Mr. Bowers. I am not sure exactly how long the personnel
that have been there have been there. I know that, to give you
an idea of the questionable judgment on their call by the EPA
staff in our region serving at the Bunker Hill site, they have
gone to great lengths not only in national publications to
disparage our community with some of their negative comments,
but they are actually handing out propaganda from extreme
environmental groups critical of the natural resource
industries. The EPA has been handing out that documentation.
Mr. Bilirakis. The EPA has been handing that out?
Mr. Bowers. That is correct.
Mr. Bilirakis. And you know that for a fact?
Mr. Bowers. Handed it right to me on a tour.
Mr. Bilirakis. EPA personnel?
Mr. Bowers. That is right.
Mr. Bilirakis. And are they located there?
For instance, in our site down in Tarpon Springs, Florida,
we don't have any EPA people that are actually located right in
the site area. Do you have EPA people that are located right in
the area and working on this effort?
Mr. Bowers. I am not sure of how many of the ones that
routinely work on our site at Bunker Hill live in the area.
I know that one, the gentleman I am referring to is Earl
Liverman, he lives in Coeur d'Alene and commutes back and
forth, which is about 40 miles upstream. But we can get folks
flying over from Seattle Region 10 headquarters on a regular
basis at the drop of a dime for the environmental groups to
come over and help explain such things as the RIFS or whatever
they want to come over and talk about. They will drop a dime
and fly right over, but yet they are not necessarily responsive
to our needs about the concerns we have for our environment.
Mr. Bilirakis. The expenditures have been approximately a
million dollars a month and this goes back to the early 1980's?
Mr. Bowers. No, no, sir. The million dollar a month figure
that I gave you is just during the course of the RFIs which
began late 1997.
Mr. Bilirakis. I see.
Well, my time is up. Gentlelady from Colorado.
Ms. DeGette. Thank you, Mr. Chairman.
Ms. Boggiatto, you were in the room when you heard Mr.
Fields testify that the recent disclosures by the Department of
Energy about sites that were involved in processing radioactive
and toxic materials should not change the timetable for
cleanup. Do you think that that will give some reassurance to
the neighbors who are concerned that this will be further
delayed?
Ms. Boggiatto. The fact that Mr. Fields said it wouldn't
be?
Ms. DeGette. Right.
Ms. Boggiatto. No.
Ms. DeGette. Why not?
Ms. Boggiatto. I am sure Mr. Fields has the best
intentions, as he has been quite good in our community, coming
out to talk with us and such. But the fact that EPA doesn't
intend for something to delay their actions doesn't necessarily
correlate to actual delays, in my experience; and I hope that
it does not. But the citizens do want a full characterization
of what is actually at that site; and, as I understand it, for
the trainloads or the truckloads to move off the site they will
have to know what exactly is in it so they will know what kind
of facility is licensed. So I hope that can be done as quickly
as possible. These sort of fears from the Ombudsman's Office
about what kinds of things could be there have been coming up
now for at least a year, and I would certainly like to see an
aggressive investigation so that it wouldn't----
Ms. DeGette. Why it is important for the neighbors to have
a cleanup schedule that has some certainty and also some
efficiency, if you will?
Ms. Boggiatto. Well, we would like to see the waste dump
gone. I mean, after all, no one needs to see that every day in
your neighborhood; and it would be very nice to have that over
with. There is still a lot of effort on the community's part,
working with EPA and businesses around the area, on how all
this will happen and how the waste is being characterized, if
it is the same as the other sites. There are still some
controversies that are sort of ensuing that take a lot of
people's emotional energy as well as physical time, and we
would all like I think for a nice, clean site and to see a
developed site in this area.
Ms. DeGette. People have been concerned about what is on
the site and whether it is leaking, whether the
characterization was correct, for 8 or 9 years now, right?
Ms. Boggiatto. Oh, absolutely. In fact, they were told back
in the early 1990's that the waste would be removed and that it
was dangerous and that was what was necessary. They have been
concerned for at lest a decade, and we would like to see this
gone, both for the potential health effect as well as the
environmental effects that that site would have as well.
Ms. DeGette. Thank you.
Mr. Bowers, just to clarify, it looks to me, in reviewing
your testimony and also your vitae, that C.L.E.A.N. is
basically a group that is put together by businesses and the
Chamber of Commerce to make sure that their interests are being
represented. Would that be a fair assessment?
Mr. Bowers. Not only businesses and the Chamber of
Commerce, ma'am, but certainly it includes our elected
officials at the city and county and State representative
level.
Ms. DeGette. Okay. But now you are actually on the payroll
of the Chamber of Commerce and then C.L.E.A.N. is pretty much
an arm of the Chamber of Commerce, would that be correct?
Mr. Bowers. That is correct.
Ms. DeGette. Thank you, Mr. Chairman. I don't have any
further questions and yield back the balance of my time.
Mr. Bilirakis. The gentleman from Illinois.
Mr. Shimkus. Thank you, Mr. Chairman; and I appreciate
those testifying here today.
Ms. Mosley, you were here when Mr. Fields was testifying
and obviously you followed a lot of the questions and the
Ombudsman reports to his deputy. Do you believe people in the
local community understand that the Ombudsman is just another
EPA employee?
Ms. Mosley. Oh, I think they, the average person, thinks
that he is an EPA employee, but he certainly is not average.
Mr. Shimkus. And following the discussions we had and using
the terminology of the law, the Ombudsman was supposed to have
access to the highest officials in the EPA. Do you think that
is--based upon your observation of the testimony earlier today,
do you think that occurs?
Ms. Mosley. Absolutely not.
Mr. Shimkus. Ms. Boggiatto, do you think that actually
occurs, same question, based upon--I know you are a little
bit--you are a little bit different because you had, if I am
correct, a lot of frustration over many, many years, like many
of us do, but you have actually seen some positive aspects and
then now might be a change back as we look at--so the same
question, do you think that the Ombudsman--the application of
the statute and the authorization says he has access to the
officials in the EPA. Do you think that is true?
Ms. Boggiatto. I think he has access to Mr. Fields, and he
is one of the highest officials. Access is one thing. Actually
being sort of listened to and respect and supported well is
another.
Mr. Shimkus. Thank you.
Mr. Bower, same kind of question.
Mr. Bowers. Sir, could you repeat the question for me?
Mr. Shimkus. Well, the basic tenet of the authorization
legislation says that the Ombudsman should have access to the
highest officials in the EPA. Do you think that that occurs?
Mr. Bowers. Well, he might have access to the highest
officials within the EPA, but I am afraid that, despite the
efforts of that we have already seen in our communities with
the Ombudsman and certainly with the tape that I have brought
here today--and I hope I get a chance to show that or at least
enter it into the record--I can certainly say for a fact that I
am not so sure EPA Region 10, let alone headquarters right here
in our Nation's capital, really does care about any of the
findings that the Ombudsman's Office has.
Mr. Shimkus. And let me just follow up, again, you observed
the discourse we had on small business liability relief and the
trouble we have getting language from the EPA. Ms. Boggiatto,
it reminded me of a comment you made that here we had promises
in the 1990's that the waste would be removed; and then based
upon those promises--those promises not being fulfilled or at
least uncertainty is pervasive. Those are kind of reaffirmation
of the kind of frustrations we have with EPA and frustration
and inability to get some clear guidance and affirmation of
what is going to occur in the future and how we can move.
Tell me how that affects--and I think my colleague Diana
DeGette mentioned this--how does this affect the community when
there is uncertainty and, really, your association and
organization----
Ms. Boggiatto. Well, as we all know, when you live next to
a toxic or radioactive waste dump, you live--and I don't live
right next to this site, but many of the citizens I work with
do live within sight of it--that is emotionally stressful, to
say the least, because you are in fear for your health and your
children's health and the rest of your family's health; and I
think that toll is a huge burden.
It also--the fact that in 1992 or so the citizens were told
by EPA that the preferred alternative was removal and that they
then changed, reversed course without going back to public
comment on that and then said, ``Tough luck, watch us bury it''
there is--it is hard to--it is sort of hard to regain the faith
in the administrative agency after that.
In fact, when I first moved to Denver, I did not get
involved in this site because I was convinced the citizens had
it wrong, that EPA could not have done what they were alleging,
and waited a couple of years until 1998 to finally get
involved, when I realized, you know, that I think there is
something here.
Mr. Shimkus. Exactly the same experience I felt with the
issue. The EPA comes in and says, ``Tough luck, you settle or
you get sued.'' That is just a bad way of doing business.
I would end with this, Mr. Chairman, and ask for our
panelists here also to--if they could, in their reviewing of
the process, what recommendations would you provide for us if
we look at reauthorizing the Ombudsman--what more tools does he
need? I mean, you are on the front lines. You are trying to
deal with issues. How do we empower him to get the word to the
highest officials in the Agency and not only get heard but have
a receptive ear?
Mr. Bilirakis. Might I recommend a very, significant
question? Might I recommend that they ought to give some
thought to it based on their experiences, and hopefully they
can furnish that to us in writing, John.
Mr. Shimkus. That is what I would request, Mr. Chairman.
Mr. Bilirakis. That is, I think, a very good idea. Would
you be willing to do that? There will be additional questions
that will be furnished to you. I don't know how we are on
reauthorization because of what is happening up here, with only
a few days to go and that sort of thing, but it may be on a
fast track. Hopefully, it is. So the sooner you provide us your
suggestions, and recommendations in response to Mr. Shimkus'
question on the Ombudsman areas you feel ought to be changed or
improved, the better.
I didn't mean to cut you off.
[The following was received for the record:]
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Mr. Shimkus. I have finished with my questions. I
appreciate you taking the time to visit with us.
I yield back my time.
Mr. Bilirakis. The gentlelady from Idaho, Mrs. Chenoweth-
Hage.
Mrs. Chenoweth-Hage. Thank you, Mr. Chairman.
Mr. Chairman, before I begin my questioning, I have a
matter here. It is entitled, The Investigative Report
Concerning Abuse of Federal Law and the Citizens of North Idaho
by the EPA. It is an investigative congressional investigative
report that I put together. It is in its draft final stage; and
I would, without objection, like to enter the final report into
the record.
It points out 18 different areas that this Ombudsman, who
has an average of $35,000 a case, he is looking into 18
different issues. He looks into everything I want to him to,
just in this one site. It is so massive.
Mr. Chairman, I remember a long time ago a judge said to me
during a hearing, you never want to open a door in a line of
questioning that you are not prepared to walk through as well
as everybody else, let everybody else in. Well, that happened
up in the hearing. That was a 14-hour hearing conducted by our
Ombudsman, and that has been captured on film. I have referred
to it, as has Mr. Bowers; and I wonder if, without objection,
if we might be able to show that 3\1/2\ minute film of the
questioning by the Ombudsman of an EPA attorney.
So I would yield back the balance of my time if, without
objection, we can do that, Mr. Chairman.
Mr. Bilirakis. How long will that take?
Mr. Bowers. Three and a half minutes.
Mr. Bilirakis. Three and a half minutes. Let us do it, if
there is no objection.
Ms. DeGette. Mr. Chairman, if I can just--reserving my
right to object. I am not going to object. Let me just say that
we didn't learn about the videotape until this morning. It
wasn't submitted as part of the prepared testimony of Mr.
Bowers. But, having said that, I am always a proponent of
sunshine.
Let me just add that the issue of the boundaries of the
Bunker Hill site is moot, because the Court of Appeals
overturned the challenge and no one challenged it in the
District of Columbia. So the issues in the Asarco case, which
is scheduled to start on January 22 of next year, are the
liability and natural resources damage issues, and that is
going to be happening in the District Court of Idaho.
So I would ask that a summary of the scope of the facility
and the actual transcript sections where this issue was
discussed at the Ombudsman hearing on August 19 of this year be
inserted into the record to supplement the videotape so that we
can have the full discussion rather than an edited portion. I
think it is irregular to have edited portions of field hearings
shown in hearings, but I won't object to it so long as the
record----
Mr. Bilirakis. Without objection, that will be the case.
Thank you very much for your consideration.
[The information referred to follows:]
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[Video played.]
Mr. Bowers. That is the end of the video.
Mrs. Chenoweth-Hage. Mr. Chairman, I see my time is up.
Mr. Bilirakis. I thank the gentlelady.
Well, I think our time is up, and we will excuse the panel.
I will just say Ms. DeGette is the only one of the members
of the subcommittee left, but if she could have experienced--
and she probably has, maybe even more so at Shattuck--what we
have been going through down there regarding the premature
decision-making without full and adequate research, I think we
would all be pretty shocked and aghast at the overall picture.
Ms. DeGette. If the gentleman would yield, that was the
part of the problem that we saw in Shattuck, was apparently in
the late 1980's, early 1990's, under the Reagan/Bush, or at
least the Bush administration, EPA, the initial record of
decision was apparently made in back rooms between the Region 8
EPA administrator, Shattuck and heavens knows who else.
So, you know, one of the great things that we have really
cherished in Denver is the community activists who just
wouldn't take no for an answer ever and also the active
involvement of the Ombudsman who really helped all of us who
were working on it. So thank you for your leadership on this,
and good luck to all your folks in Florida.
Mr. Bilirakis. And good luck to all your folks in Denver,
and hopefully we can work together when it comes to
reauthorization.
Mrs. Chenoweth-Hage. Mr. Chairman, before you bring the
gavel down, I would just have one point that I would like to
clarify that was brought up. That is the Asarco suit. That case
was almost remanded--almost all of it was remanded back. So
there are many, many other issues involved in the Superfund
site in northern Idaho, and it will be in ongoing litigation.
Thank you, Mr. Chairman.
Mr. Bilirakis. Thank you.
Mr. Bowers and ladies, Ms. Boggiatto and Ms. Mosley, thank
you so very much for taking time away from your families--Ms.
Mosley brought her family with her--and your jobs to come here.
Some of you have traveled quite a distance, and we appreciate
it very much.
Again, get that information to us and anything else that
you feel you haven't already communicated here today which you
feel might be significant in what we are going to do.
This hearing is adjourned.
[Whereupon, at 12:50 p.m., the subcommittees were
adjourned.]
[Additional material submitted for the record follows:]
[EPA did not respond to questions 2, 3, 6, and 9 of letter
sent by Chairman Bilirakis and Chairman Oxley.]
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