TESTIMONY OF U.S. REPRESENTATIVE JERROLD NADLER (D-NY)

Submitted to

The Senate Committee on Environment and Public Works

June 25, 2002

# Environmental Protection Agency Inspector General\'s actions with respect to the Ombudsman and S.606

Thank you, Chairman Jeffords. I would like to thank you and the rest of
the committee for holding this hearing today, and for inviting me to
testify, regarding the EPA Hazardous Waste Ombudsman, and in particular,
the role of the Ombudsman in investigating the response of the EPA to
the September 11^th^ terrorist attack in New York. My colleague, Senator
Clinton, has been an outspoken advocate and knows all too well the
problems citizens in New York have been encountering over the past nine
months. Thank you, Senator Clinton for arranging for the Field Hearing
in New York back in February, and thank you Chairman Jeffords, for the
committee's continued oversight of EPA by examining this issue today.

As the Congressman representing Ground Zero, I thank you for the
opportunity to share the very positive experience of my constituents
with the EPA Hazardous Waste Ombudsman during the clean up of the World
Trade Center. Fortunately, for the majority of us in Congress, we have
not needed to know about the EPA Ombudsman. Those of us who have had the
need have similar stories to share; on the one hand, an agency that
seems to ignore the community's concerns and on the other an Ombudsman
willing to listen and investigate complaints about agency neglect.
Ultimately, in a vast majority of the EPA Ombudsman cases, the
transparent Ombudsman process has helped the Administrator, or regional
officials, take proper action to resolve the disputes, resulting in
greater protection from radioactive and other hazardous waste threats.
Both Democrats and Republicans alike have utilized the EPA Ombudsman to
help restore trust in government where it had previously been shaken.

In 1972, Justice Douglas identified the problem that so often plagues
much of the Federal government:

"The federal agencies of which I speak are not venal or corrupt. But
they are notoriously under the control of powerful interests who
manipulate them through advisory committees, or friendly working
relations, or who have that natural affinity with the agency which in
time develops between the regulator and the regulated."

> ([Sierra Club v. Morton]{.underline}, 92 U.S. 1361, 1371 (1972)).

This quote by Justice Douglas is as relevant today as it was thirty
years ago. Indeed, this is why the EPA Ombudsman was created by Congress
in 1984 when then-Congresswoman Barbara Mikulski faced an unresponsive
Environmental Protection Agency. As the numerous cases that were in
progress by Ombudsman Martin indicate, the need for an independent EPA
Ombudsman is just as critical today as when the office was first
created.

Today, I am here to share first-hand knowledge of events that transpired
in New York following September 11th. The World Trade Center case
highlights how imperative it is that there be an independent and
effective Ombudsman at EPA.

Immediately following September 11^th^, I formed the Ground Zero Elected
Officials Task Force, of which Senator Clinton is a member, to
coordinate the efforts of all the government representatives from the
area. The main goal of the Task Force is to assess the needs of the
community in Lower Manhattan, and to ensure that those needs are
addressed by the appropriate government agencies. One area that clearly
was not addressed was the presence of hazardous waste in people's homes,
schools and businesses. In the days following the attack, the Task Force
heard countless complaints from citizens who suffered from adverse
health effects, and/or lacked the resources necessary to test and clean
their apartments and buildings properly. When EPA was presented with
such information, the agency either maintained that everything was safe,
or claimed that the City of New York was in charge of indoor
environments and that EPA had no authority for indoor environments. The
agency maintained this position even after being presented with
independent test results, conducted by long-time EPA contractors, which
showed elevated levels of hazardous materials inside downtown
apartments.

This situation made it very difficult to quickly and effectively address
the mounting casework from constituents who literally had nowhere to go
to get hazardous waste out of their homes. Citizens were left to fend
for themselves, often ended up in court proceedings against their
landlords and building owners, and expended vast resources on a cleanup
downtown that was not conducted adequately or systematically, but rather
on an ad-hoc basis.

After four months of this untenable situation, I asked the EPA National
Hazardous Waste Ombudsman, Robert Martin, and his Chief Investigator,
Hugh Kaufman, to investigate. Their involvement produced a sea change in
the relationship of my office, as well as of local residents, with EPA.
My position has always been that EPA should use its existing authority
to take any and all actions necessary to find out where hazardous
materials went following the collapse of the World Trade Center, and to
remediate contaminated spaces, and that New York should not be treated
differently than other parts of the country where the EPA has engaged in
response activities. Ombudsman Martin and Mr. Kaufman were able to tell
us what the EPA should have done, could have done, and has done at other
hazardous waste sites around the country. But most importantly, the
Ombudsman process provided a forum to communicate with my constituents,
listen to their complaints and concerns, issue requests for the
production of documents and interrogatories, hold public hearings, bring
in experts from around the country to help the citizens understand the
full magnitude of the issues, make recommendations for corrective
action, and truly get to the bottom of what EPA did and did not do.

The key to all of this is that it was a **public** and **transparent**
process. We held two eleven-hour hearings that were open to the public,
documented with a court reporter, the transcripts of which are available
to anyone. We heard from residents, workers, business owners, city and
state elected officials, firefighters, police officers, parents, and the
NYC Board of Education. We would have liked to hear from the government
agencies, in particular EPA, but they declined our invitation to
participate.

Except for the Ombudsman, the EPA has yet to engage in a public and
transparent process regarding the cleanup of the World Trade Center. If
anything, it has done just the opposite. Questions have gone unanswered,
information was obtained only through FOIA, if at all, and trying to get
the agency to act has been a lengthy, arduous, and often unsuccessful
process. The Ombudsman process was essential to address citizen
complaints, and focus public pressure on the agency to resolve those
complaints.

In the four months from September 11^th^ to January, the EPA maintained
that everything was safe, directed people to the city government for
relief (a government which offered no relief to people other than to
tell them to clean up asbestos-laden dust with a wet mop and wet rag),
and ultimately remained unresponsive to citizens. In the four months
from January to May, the time of the Ombudsman process, EPA reversed its
policy and agreed to initiate remediation inside people's homes. Of
course, there were many factors that contributed to this policy shift,
but I do not believe it would have happened, or happened so quickly,
without the Ombudsman process, and the expertise and hard work of Mr.
Martin, his Chief Investigator Hugh Kaufman, and the people who worked
with them to use the Ombudsman process so effectively.

The EPA is finally beginning a cleanup plan, largely because of pressure
generated by the Ombudsman. Unfortunately, there is now no real
Ombudsman to keep a watchful eye on the agency. This is disconcerting
because the EPA cleanup plan is woefully inadequate. For example, the
EPA plans to clean apartments only on request, which ignores the threat
of cross- and recontamination from uncleaned apartments and from
building HVAC systems. The EPA plan provides for testing only for
asbestos in the air and does not plan to assess dust or hard surfaces
that are also pathways of exposure. Nor will the agency test for any of
the other contaminants that were present in World Trade Center debris
such as lead, mercury, dioxin and fine particulate matter. The cleanup
plan is available only south of an arbitrary boundary at Canal Street,
cutting off other areas covered by the debris cloud, including parts of
Brooklyn, Chinatown and the Lower East Side. Besides not dealing with
many potentially contaminated areas, this presents an environmental
justice problem. The workers will not be wearing protective gear, which
would seem to be a clear violation of OSHA regulations. The EPA refuses
to clean commercial spaces and schools. The EPA has developed this plan
without public comment, and has not established a Citizens Advisory
Group or held public meetings. It has not even established an
Administrative Record accessible to the public.

Quite frankly, the EPA has provided no evidence that the cleanup plan
for World Trade Center debris complies with applicable laws and
regulations, such as the National Contingency Plan and OSHA regulations,
and there is no guarantee that EPA will act in accordance with existing
laws, policies and procedures. The agency must be forced into a public
and transparent process. The people of New York deserve and need an
experienced, strong and independent Hazardous Waste Ombudsman at EPA now
more than ever.

Unfortunately, what has happened to the Ombudsman is just the opposite.
By placing the Ombudsman in the Office of Inspector General, the
position has been stripped of its independence, transparency and
effectiveness. In July 2001, the House Commerce Committee requested that
the GAO investigate EPA management's efforts to interfere with the EPA
Ombudsman's ability to perform his job. Two critical recommendations
were made by the GAO. First, the GAO recommended that EPA should provide
the Ombudsman with a separate budget and, subject to applicable Civil
Service Requirements, the authority to hire, fire and supervise his own
staff. Second, the GAO recommended that the EPA Ombudsman be given more
structural independence. By moving the Ombudsman to the Office of
Inspector General, and stripping away his position description, the EPA
has done exactly the opposite. The necessary procedures that legally
must be followed in operating an Inspector General's office are
inconsistent with the procedures necessary for an independent,
transparent Ombudsman function. For example, employee protection
provisions and openness of operation must be very different in an
Inspector General's office because it is part of a law enforcement
function, whereas an Ombudsman must be more open to the public and, at
times, must be a public advocate.

The EPA Ombudsman is crippled as long as it remains under the control of
the Inspector General. Without independence to control his casework or
his resources, an Ombudsman is one in name only. The situation became so
untenable for Robert Martin that he resigned in protest when the Agency
opted to house the Ombudsman under the Inspector General's office,
change the locks on his doors and remove all his files without his
approval while he was away on EPA-related travel.

Recent events require that we institute an independent, fully funded EPA
Ombudsman Office to receive, investigate and resolve complaints. Perhaps
the best way is to make the Ombudsman an arm of Congress, but wherever
an Ombudsman is placed, the office must have control of its resources,
staff and cases. The Ombudsman must be able to communicate with the
public and must be able to act free from interference by outside parties
or from within the agency itself. Wherever an Ombudsman is ultimately
placed, it is clear that the Office of Inspector General is not
appropriate.

I sit here next to my Republican colleague from Colorado, having
experienced many of the same problems with the EPA: unresponsiveness,
neglect and lack of substantive public involvement. The WTC is a unique
case in the order of its magnitude and precedent, but not with respect
to the growing need for a mechanism to hold agencies accountable and
ultimately resolve citizens' complaints. And dare I say, the World Trade
Center may not be the only case of its kind should future terrorist
attacks occur.

An independent EPA Ombudsman with the necessary resources and staff can
provide an antidote to the malaise that we all know sometimes befalls
Administrative Agencies. This is nothing new to the United States or to
democracies in general. In fact, establishing independent ombudsmen is
good government. The federal government has decades of experience in
establishing strong and independent Ombudsmen. The IRS and HHS have
Ombudsmen to address citizen complaints regarding taxes and long-term
care respectively. Victims of a terrorist attack, and those living with
the threat of hazardous waste, deserve at least the same protection.