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S. HRG. 107–667

NOMINATIONS OF THE 107th CONGRESS,

SECOND SESSION

HEARINGS

BEFORE THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

JANUARY 24, 2002

LINDA MORRISON COMBS, TO BE CHIEF FINANCIAL OFFICER,

ENVIRONMENTAL PROTECTION AGENCY

J. PAUL GILMAN, TO BE ASSISTANT ADMINISTRATOR FOR RESEARCH AND

DEVELOPMENT, ENVIRONMENTAL PROTECTION AGENCY

MORRIS X. WINN, TO BE ASSISTANT ADMINISTRATOR FOR ADMINISTRATION AND

RESOURCE MANAGEMENT, ENVIRONMENTAL PROTECTION AGENCY

MAY 7, 2002

JOHN P. SUAREZ, TO BE ASSISTANT ADMINISTRATOR FOR ENFORCEMENT AND

COMPLIANCE ASSURANCE, ENVIRONMENTAL PROTECTION AGENCY

JULY 18, 2002

JOHN BRESLAND and CAROLYN MERRITT, TO BE MEMBERS OF THE

CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

(

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION: JANUARY 3–DECEMBER 16, 2002

JAMES M. JEFFORDS, Vermont, Chairman

MAX BAUCUS, Montana

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

THOMAS R. CARPER, Delaware

HILARY RODHAM CLINTON, New York

JON S. CORZINE, New Jersey

BOB SMITH, New Hampshire

JOHN W. WARNER, Virginia

JAMES M. INHOFE, Oklahoma

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

LINCOLN CHAFEE, Rhode Island

ARLEN SPECTER, Pennsylvania

BEN NIGHTHORSE CAMPBELL, Colorado

KEN CONNOLLY, Majority Staff Director

DAVE CONOVER, Minority Staff Director

(II)

(III)

CONTENTS

Page

JANUARY 24, 2002

OPENING STATEMENT

Jeffords, Hon. James M., U.S. Senator from the State of Vermont ................... 1

WITNESSES

Combs, Linda Morrison, nominated to be Chief Financial Officer, Environmental Protection Agency .................................................................................... 5

Committee questionnaire ................................................................................. 11

Letter, Office of Government Ethics ............................................................... 26

Prepared statement .......................................................................................... 9

Responses to additional questions from Senator Smith ................................ 26

Gilman, J. Paul, nominated to be Assistant Administrator for Research and

Development, Environmental Protection Agency .............................................. 3

Committee questionnaire ................................................................................. 29

Letter, Office of Government Ethics ............................................................... 38

Prepared statement .......................................................................................... 27

Responses to additional questions from:

Senator Crapo ............................................................................................ 40

Senator Smith ............................................................................................ 40

Senator Voinovich ..................................................................................... 38

Winn, Morris X., nominated to be Assistant Administrator for Administration

and Resource Management, Environmental Protection Agency ...................... 2

Committee questionnaire ................................................................................. 43

Letter, Office of Government Ethics ............................................................... 51

Prepared statement .......................................................................................... 41

Responses to additional questions from Senator Smith ................................ 51

MAY 7, 2002

OPENING STATEMENTS

Bond, Hon. Christopher S., U.S. Senator from the State of Missouri ............... 68

Boxer, Hon. Barbara, U.S. Senator from the State of California ....................... 61, 64

Corzine, Hon. Jon, U.S. Senator from the State of New Jersey ......................... 53, 65

Jeffords, Hon. James M., U.S. Senator from the State of Vermont ................... 53

Smith, Hon. Bob, U.S. Senator from the State of New Hampshire ................... 65

WITNESS

Suarez, John Paul, nominated to be Assistant Administrator for Enforcement

and Compliance Assurance, Environmental Protection Agency ....................... 54

Chart, What polluters pay ............................................................................... 77

Job performance evaluation as Assistant U.S. Attorney ............................... 80

Letters of support:

Michal A. Guadagno, U.S. Department of Justice .................................. 78

New Jersey Police Benevolent Association .............................................. 83

Prepared statement .......................................................................................... 69

Responses to additional questions from:

Senator Boxer ............................................................................................ 80

Senator Corzine ......................................................................................... 74

Page

IV

Suarez, John Paul, nominated to be Assistant Administrator for Enforcement

and Compliance Assurance, Environmental Protection Agency—Continued

Responses to additional questions from—Continued

Senator Jeffords ......................................................................................... 71

Senator Smith ............................................................................................ 72

Senator Wyden .......................................................................................... 75

Summary of trials ............................................................................................. 78

JULY 18, 2002

OPENING STATEMENTS

Jeffords, Hon. James M., U.S. Senator from the State of Vermont ................... 85

Smith, Hon. Bob, U.S. Senator from the State of New Hampshire ................... 92

WITNESSES

Bresland, John S., nominated to be a Member of the Chemical Safety and

Hazard Investigation Board ................................................................................ 86

Committee questionnaire ................................................................................. 95

Prepared statement .......................................................................................... 93

Merritt, Carolyn W., nominated to be a Member of the Chemical Safety

and Hazard Investigation Board ......................................................................... 87

Committee questionnaire ................................................................................. 108

Prepared statement .......................................................................................... 106

ADDITIONAL MATERIAL

Letter, Response to IG report, CSB Commissioners ............................................. 157

Report, Management Issues, Inspector General of the Chemical Safety and

Hazard Investigation Board ................................................................................ 115

(1)

NOMINATION OF THREE NOMINEES TO THE

ENVIRONMENTAL PROTECTION AGENCY:

LINDA MORRISON COMBS; J. PAUL GILMAN;

AND MORRIS X. WINN

THURSDAY, JANUARY 24, 2002

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC.

The committee met, pursuant to notice, at 2:30 p.m. in room SD– 406, Senate Dirksen Building, Hon. James M. Jeffords, chairman

of the committee, presiding.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS,

U.S. SENATOR FROM THE STATE OF VERMONT

Senator JEFFORDS. Good afternoon to you. We have this afternoon three nominees for positions with the Environmental Protection Agency. They are: Ms. Linda Morrison Combs, nominated to

be Chief Financial Officer. Well, that is impressive.

Then Mr. J. Paul Gilman, nominated to be the Assistant Administrator for the Office of Research and Development, another very

important job.

Then Mr. Morris Winn, nominated to be Assistant Administrator

of the Office of the Administration and Resources Management.

That is an interesting, fascinating job.

I look forward to the hearing with each of you and want to comment you on your willingness to commit to public service. Each of

you brings a great deal of experience and expertise to these positions. I hope we will be working together to assure the protection

of the environment.

I would like to let everyone know how we are going to proceed

this afternoon. Before giving your statement, please introduce any

family members you have here. As I go to each of you, I would be

pleased if you would do that.

Also, you may summarize your statements as much as you desire, if that feels appropriate. Your full statement will be included

in the record.

We will save questions until each of you has finished your statement. After all members have a chance to ask questions and I am

the only one here, I think, and probably will be, I’ll conclude the

hearing by asking each of you two obligatory questions.

For those committee members who are unable to be here today

or who have additional questions, we will forward those questions

to them. All members have a limited length of time to submit questions to you if they are not here at the hearing.

2

As soon as the committee receives all the responses, then we will

act on your nominations and I want to be as expeditious as possible.

So, with that, Morris, why don’t you start us off and introduce

any of your family that you may have with you.

STATEMENT OF MORRIS WINN, NOMINEE FOR ASSISTANT ADMINISTRATOR FOR ADMINISTRATION AND RESOURCES

MANAGEMENT, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. WINN. Thank you, Mr. Chairman. Unfortunately my family

is not with me. They are back home in Austin, Texas. They are

rooting for me from afar. Thank you very much.

It’s with great honor and privilege, Mr. Chairman, that I am

here today as the nominee of President Bush and Governor Whitman for EPA’s Assistant Administrator for Administration and Resource Management, which I’ll refer to as OARM. I am extremely

proud to serve in the Bush Administration and with Governor

Whitman, both of whom are working to enhance the level of public

health and environmental protection for all Americans. I look forward to working with this committee, the Congress, and the EPA.

If I can for just a second speak briefly about my background and

discuss where I hope to bring new ideas and leadership to this position if I am confirmed. I have about 30 years of public service experience in the great State of Texas. I have worked for four Governors, two attorneys-general, four commissioners of insurance, and

a State Comptroller all who had very different philosophical views.

I had a leadership role in managing diversity, providing human

resources programs as well as providing a full range of administrative support. I developed an effective strategy to recruit, train and

retain a high caliber of State employees.

In my last job, Senator, I had the occasion to hire approximately

700 employees in less than 24 months without any grievances or

lawsuits in that process. Throughout my career I have pursued

public service passionately, employing a balanced management of

people and tasks. I consider myself a fiscal realist. I intend to be

frugal with spending the taxpayers’ dollars under my management.

I believe that public service requires integrity, energy and purpose.

It is not simply a job, nor is it just a profession to me. I consider

this a very high honor. I firmly believe that our Federal employees

are indeed the Agency’s most valuable asset. As we collectively

raise the bar of fairness and equity in the workplace, I believe we

must recognize that there are heroes on both sides of every issue.

There are employees who can tell us about all the injustices in

the workplace and discrimination. There are also those employees

who can tell us about all the good and wonderful things in the organization. I believe that we need both of these perspectives to improve the workplace productivity and agency performance.

My goal is to help EPA and its employees find their will to serve

a growing and more demanding customer base. I aim to establish

a system of total accountability where employees at all levels in the

organization will own their jobs, that is, the duties assigned to

them. I believe that employees should be free to succeed or fail

based on their measured performance.

3

The tragic events of September 11th and the prospects of terrorist activity have raised anxiety levels throughout our Nation.

Federal employees have shown courage and dedication in continuing to serve the American public. I will work to ensure the

safety of EPA’s employees and facilities as we meet our needs.

I am also aware that both the Congress and the President have

concerns about the Federal Government’s human capital crisis and

the resulting workforce challenges.

I will ensure that we integrate workforce planning into the Agency’s strategic and budget planning process and under the umbrella

of EPA’s human capital strategy, I will work hard to support all

of the President’s management agenda initiatives.

Last, I will work to ensure a high level of integrity and accountability in our financial resources management. Each year twothirds of EPA’s budget is obligated as contracts or grants. The

management of these resources is very important and it must be

done well.

If confirmed, I will strengthen oversight and make sure that we

have an early warning system built into our processes that the

American people can receive cost-effective results from contracts

and grants. I will not take this position for granted. I realize it will

be a very tough challenge for me as well as for our organization

in these troubling times.

However, if I am confirmed, I pledge to bring the full weight of

my integrity, energy and experience to bear on meeting the challenges and raise the bar of excellence for EPA and for OARM.

I will be pleased to answer any questions you may have. Thank

you very much.

Senator JEFFORDS. Thank you.

Paul, please proceed.

STATEMENT OF J. PAUL GILMAN, NOMINEE FOR ASSISTANT

ADMINISTRATOR FOR RESEARCH AND DEVELOPMENT, U.S.

ENVIRONMENTAL PROTECTION AGENCY

Mr. GILMAN. Mr. Chairman, I would like to introduce my wife,

Ginny and our two sons, Samuel and Will. We are also accompanied by a long-time friend, Angela Ray.

Senator JEFFORDS. I see a wave coming at me there. Thank you

very much.

Mr. GILMAN. It is a privilege to appear before you, Mr. Chairman. It is certainly a privilege and it’s also an honor to appear as

a nominee for the Assistant Administrator for the research and development efforts at EPA.

I am excited about the opportunity to serve with Governor Whitman. I would like to first address what I believe are my qualifications for the position. My education, research and employment experience, I think, have contributed to those qualifications.

Most recently I was at Celera Genomics, a private sector

reesearch enterprise, and was able to participate in the creation of

a very fast-paced and highly productive research program there.

My knowledge of research management was greatly enhanced by

that. I believe my immersion in new fields of genomics and

bioinformatics will be useful as we begin to use these tools in the

scientific and technical challenges in the environmental sciences.

4

I have served as an external member of the Department of Energy’s Laboratory Operations Board where we studied the management of their Federal research facilities. I think that opportunity

has contributed again to my general knowledge of Federal research

facilities.

I also spent time before that as the person in charge of the programs for life sciences and agriculture at the National Academy of

Sciences and Engineering’s National Research Council. That gave

me quite an education on the significant issues and the scientific

context that face EPA on a daily basis.

While at OMB, I had direct responsibility for budget formulation

for the EPA and other science-related agencies and also participated in the regulatory review process.

At the Department of Energy, I had principal responsibilities in

advising the Secretary in scientific and technical matters, especially related to human health and environmental research and environmental remediation.

I spent 13 years in the U.S. Senate as a staff member, my first

year as a congressional science fellow for the American Association

for the Advancement of Science. I had a broad education in sciencerelated issues and in environmental and human health issues as

well.

I participated in this committee’s investigation of the Three Mile

Island Accident, the Nuclear Waste Policy Act of 1982, and broad

oversight in a number of regulatory agencies.

I would like to share with you, Mr. Chairman, my thoughts

about the nature of science in government and in EPA. I believe

those that pursue science and engineering in government take on

a special role and a particularly weighty responsibility.

I do believe that in doing so you become an advocate for the

truth. There’s a quote of Albert Einstein’s engraved on the monument to him outside the National Academy of Sciences Building. It

captures my feelings on this matter and my commitment to your

committee and to my President. Professor Einstein said, ‘‘The right

to search for truth implies also a duty. One must not conceal any

part of what one has recognized to be true.’’

There has been substantial change in the Office of Research and

Development at EPA under the past two Assistant Administrators.

Dr. Robert Huggett set the major research programs on a new

course, designed to have science serve the mission of the Agency

and to move away from solely research for research’s sake.

Dr. Norine Noonan further moved in that area and also instituted a very vigorous planning process aimed at making the right

research available to the Agency’s regulators when they need it.

We are beginning to see the results of that effort. If confirmed, I

will sustain the reforms that they instituted. Where appropriate I

will initiate new ones with the goal of pursuing the best use of

science in the EPA regulatory process.

Thank you for the opportunity to appear before you, Mr. Chairman.

Senator JEFFORDS. Ms. Combs, please proceed.

5

STATEMENT OF LINDA MORRISON COMBS, NOMINEE FOR

CHIEF FINANCIAL OFFICER, U.S. ENVIRONMENTAL PROTECTION AGENCY

Ms. COMBS. Thank you, Mr. Chairman. I regret that my family

is not here today. They are back in North Carolina, where I come

from. But I do appreciate the opportunity and I am very pleased

to appear before you today as you consider my qualifications for the

position of Chief Financial Officer at the Environmental Protection

Agency.

I am deeply honored that I have been nominated by President

Bush for this important post and I certainly want to thank Governor Whitman as well for her confidence in me in considering me

for this position.

It is indeed a privilege to be considered once again for a position

of great trust within the Federal Government. Some of the most rewarding years in my career have been spent in executive positions,

primarily in the management positions and in the finance positions

at the Department of the Treasury, the Department of Veterans Affairs and the Department of Education.

I would welcome the opportunity to serve the public once again

at the EPA. This Agency’s staff is well known for their personal

commitment to the organization’s mission of protecting human

health and the environment. This is a commitment that I share,

while recognizing as well the special contributions that sound financial management can and should also make to the business of

environmental protection.

In short, I believe that we must manage and account for our

physical resources just as carefully as we protect and preserve our

natural resources. As you very well know, the Chief Financial Officer of any organization carries a tremendous weight and tremendous responsibility. It is a pivotal position where planning, budget,

accountability, and resource management all come together as they

should.

I think that the CFO in a Federal Government agency bears an

additional responsibility of being accountable to the public that we

serve.

I believe that the experiences that I bring with me from North

Carolina where I have participated in State government, local government, as well as the private sector, and the experiences that I

bring with me having served the other Federal segments that I

mentioned a moment ago, give me the broadest possible prospective

on the kinds of challenges that I am likely to face in the CFO position at the EPA.

If I am confirmed, it will be my goal to buildupon the progress

that has been made since my last position in the executive branch.

The CFO position was created in 1990 when I was at the Department of the Treasury. I was pleased to be able to work with Congress and the White House and OMB to make that possible.

I can see already from the short time that I have been back that

there have been tremendous improvements made. But we still have

room to grow. Managing performance and results for EPA and the

public that we serve will be my goal. In support of that goal I just

want to pinpoint for you in the next couple of minutes just a couple

of highlights of the opportunities that I see ahead.

6

First and foremost, I see the opportunity we have of meeting the

Agency’s financial obligations with precision and timeliness. I am

committed to that. We have an obligation to pursue the President’s

management agenda which my colleague, Morris Winn, mentioned

a moment ago as well. We will both, if we are confirmed, have

some joint as well as independent roles in pursuing that.

The updated strategic plan for the Agency is coming about in

September of 2003. I very much look forward as the Chief Financial Officer to working with your folks and making sure that this

is done in a way that would be beneficial to all of our constituents

needs.

Of course, budgeting and annual planning is always an integral

part of the CFO’s work. I look forward to working closely with Congress on that effort as well.

One of the biggest challenges and opportunities that I see the

Agency confronting is the need to continue developing and maintaining financial systems that serve multiple customers and multiple needs.

I am personally committed to managing and communicating accurate and meaningful information about EPA’s fiscal health and

financial position. I believe that Federal agency systems need to be

versatile enough to provide financial statements worthy of clean

audit opinion as well as information about program costs in a form

that’s helpful to line managers to manage their programs better,

being able to give a big picture analysis for those of us who may

need to look at that as well.

Certainly congressional interest in, and support for, those kinds

of informational needs is entirely appropriate. Should I be confirmed, I really look forward to working with you and your staff

and responding to your specific needs and your constituents’ needs.

One of the other focal points that I would like to mention is, of

course, our annual report. One of the principal sources of information that EPA has in citing the good things that we do should be

that annual report. I look forward to pointing out the benefits that

our citizens derive from the valuable work that EPA does.

In closing, I would just say that in each of the public offices in

which I have served, I have always been guided by one overriding

principle. That principle is that public service is indeed a public

trust. I am committed to upholding the highest standards of honesty, fairness and integrity. The people of our country deserve absolutely no less from those of us who serve in such honored positions.

So, should you honor me with confirmation, I look forward to

working with you and to the job ahead. I have already found, in

the short time I have been at EPA, that the office of the Chief Financial Officer is staffed with some of the very finest professionals

I have ever met in my life. I am eager to begin our work together.

I would be pleased to answer any questions that you have.

Senator JEFFORDS. Thank you very much.

That was an excellent statement. Now the tough questioning period comes.

Mr. Winn, you have a great deal of experience in managing everything from personnel to budgets for the State of Texas. What

challenges do you see in managing the resources of this important

Agency?

7

Mr. WINN. Senator, thank you for that very thoughtful question.

First of all, I think most thinking people will understand that the

crisis facing not only our Agency but all other Federal agencies and

State agencies is the aging workforce and the so-called ‘‘brain

drain.’’ I say so-called brain drain because there’s an assumption

that us baby boomers who are retiring have something to offer the

population. After further evaluation, the answer is a resounding

yes.

I think a huge challenge for every manager and for the Assistant

Administrators that may be confirmed is to try to harness that information and capture it in some comprehensive, consolidated fashion. Not just succession planning, but knowledge transfer. The

challenge will be to transfer knowledge from those that choose to

retire from the Federal Government and those that just choose to

leave and do that in a very orderly fashion so the taxpayers can

always understand that they are getting their money’s worth from

Federal employees.

The human capital crisis is our No. 1 challenge. I think that is

no small order. Also, there are changes that probably have to be

performed legislatively. I think there are a lot of management

issues that we need, to address.

Senator JEFFORDS. Thank you.

Mr. Gilman, EPA has vast and varied research responsibility. We

rely on the Agency to provide the best available scientific information for our decisionmaking process. Mr. Gilman, with the challenge of trying to meet all the research needs of the EPA, how will

you set priorities with the limited dollars you will have to work

with? That is going to be a tough job.

Mr. GILMAN. You bet. It is complicated by the fact that while you

want to be very much oriented toward fulfilling the needs of the

programmatic offices that are carrying out the mission of the Agency, the air office, the water office, you still want to maintain a core

element of research around which you can really build the research

programs for those programs, a very basic oriented research program that keeps the Agency on the cutting edge of the science.

So, it’s complicated. I believe the regulatory review process that

the EPA is revitalizing will provide a basis for us to prioritize. It

will really help us at the very early stages of the regulatory process

to understand what knowledge is needed to make a good rule and

to understand what role scientific research plays in that, including

what role in-house research at EPA will be, what role we can assign to university-based researchers and what we can expect from

industry and advocacy groups in the process.

So, it really becomes a process of trying to first find out what the

Agency’s priorities are, and second, find out what the resources

available are within the Agency. Then EPA will collaborate within

the Agency with other Federal agencies, and nonprofit groups interested in funding research to make sure that the right information is available when the regulatory decisions need to be made.

Senator JEFFORDS. That is a very important job, as you well

know.

Ms. Combs, one of your responsibilities in this is position will be

to promote EPA’s perspective when forming Federal financial policies with all the government agencies. Given the importance of the

8

Agency’s responsibilities in protecting our environment, how will

you do that when competing interests such as education and defense will have their agencies advocating their perspective, and trying to grab every nickel they can?

Ms. COMBS. You are quite familiar with that yourself, Mr. Chairman, I know. You wrestle with that all the time, each and every

day. You know, there are a lot of priorities that our country faces

right now.

One of the priorities that I hold very near and dear to my heart

is a priority that I grew up with. I grew up in rural North Carolina. I grew up where I could put my toes in the grass and walk

in the streams and do all the things that I would love to see all

children be able to do.

I still, when I go back to North Carolina, have a great feeling

that I like to put my toes in the grass. So, I have a great admiration and need to look at those beautiful mountains and enjoy the

beautiful coastal areas.

I expect every American likes to feel that they have clean water,

and clean air and they deserve nothing less. As I said in my testimony, the Chief Financial Officer is indeed a pivotal point where

EPA’s priorities come together. You are speaking about priorities

that EPA has weighed against priorities of the Department of Defense and the Department of Education. We all have our roles to

play. In this important and critical time in our Nation, I think we

can’t overlook the importance of clean water, clean air and clean

land.

That is an important responsibility. It’s an important accountability for each and every one of us. I will do my part when working on the CFO council to make sure that we speak from integrity

and openness and we will have our place at the table.

Senator JEFFORDS. Thank you, Mr. Chairman. Now come the

obligatory questions. I would like you all to stand and answer ‘‘yes’’ is that’s the appropriate answer.

Are you willing, at the request of any duly constituted committee

of the Congress, to appear in front of it as a witness?

Mr. WINN. Yes.

Mr. GILMAN. Yes.

Ms. COMBS. Yes.

Senator JEFFORDS. Do you know of any matters which you may

or may not have thus far disclosed which might place you in any

conflict of interest if you are confirmed in this position? Now, that

takes a different answer, I think.

Mr. WINN. No.

Ms. COMBS. No.

Mr. GILMAN. No.

Senator JEFFORDS. You may be seated. I want to thank you for

your willingness to participate. It is so important. With the capabilities and qualifications that you have, I know it’s going to be a

real pleasure working with all three of you.

I am attempting and hopefully will move your nominations next

Tuesday so we can get our best value that way. But one never

knows around here what will happen. But all expectations are that

we’ll be able to do that.

Thank you very much. The hearing is adjourned.

9

[Whereupon, at 3 o’clock p.m., the committee was adjourned, to

reconvene at the call of the Chair.]

[Additional statements submitted for the record follow:]

STATEMENT OF LINDA MORRISON COMBS, NOMINEE FOR CHIEF FINANCIAL OFFICER,

U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. Chairman and members of the committee, I am pleased to appear before you

today as you consider my qualifications for the position of Chief Financial Officer

of the Environmental Protection Agency (EPA). I am deeply honored to have been

nominated by President Bush for this important post, and I would like to thank

Governor Whitman for her confidence in selecting me for this position.

It is a privilege to be considered once again for a position of great trust within

the Federal Government. Some of the most rewarding years of my career have been

spent in executive positions with the Department of the Treasury, the Department

of Veterans Affairs, and the Department of Education. I would welcome the opportunity to continue to serve the public at EPA, an agency whose staff are well-known

for their personal commitment to the organization’s mission: protecting human

health and the environment. This is a commitment that I share, while recognizing

the special contributions that sound fiscal management can make to the business

of environmental protection. In short, we must manage and account for our fiscal

resources as carefully as we protect and preserve our natural resources.

The Chief Financial Officer (CFO) of any organization carries a tremendous responsibility. It is a pivotal position, where planning, budgeting, accountability, and

resource management all come together. In government organizations, the CFO

bears additional responsibility as an executive accountable to the public. I believe

my experiences at Federal, State, and local government levels and within the private sector have given me the broadest possible perspective on the kinds of challenges likely to face the CFO in any large organization.

Moreover, I am quite familiar with the management issues of greatest concern to

CFOs in the executive branch. I was fortunate to have worked closely with Congress

and the Office of Management and Budget on development and passage of the Chief

Financial Officers Act of 1990. We did a great deal of work together to define financial and performance standards for Federal CFOs that would be consistent with

those normally applied to private sector CFOs. I believe the success of that landmark legislation is apparent in the advances made across government since my tenure as the first CFO at Treasury. If I am confirmed, it will be my goal to buildupon

the progress that has already been made and continue to improve management, performance, and results for EPA and for the public we serve.

In support of this goal, I would like to highlight a few of the opportunities I see

ahead.

Should my appointment be confirmed, a major focus of my work at EPA would

be to pursue the President’s Management Agenda, which focuses on Human Capital,

E-Government, Competitive Sourcing, Financial Performance, and Budget and Performance Integration. I would apply to this work the best practices I have identified

in my private and public sector management experience.

EPA’s Office of the Chief Financial Officer would have an opportunity to maintain

its focus on solid, customer-oriented financial services, meeting the Agency’s financial obligations with precision and timeliness. EPA has a good track record in this

area, as demonstrated by the performance measures applied to CFOs across government, and I would look forward to continuing to meet or exceed all standards.

EPA will surely continue its work in compliance with the Government Performance and Results Act (GPRA). A major part of that work will be the planning and

consultation that will result in an updated Strategic Plan for the Agency, to be submitted to Congress in September 2003. The Office of the Chief Financial Officer is

EPA’s focal point for this effort. I would expect to build on the Agency’s experience

of working through two strategic plans under GPRA, factoring in my own previous

planning and budgeting experience as a Federal management executive.

Of course budgeting and annual planning will be a large part of the office’s work,

as it was in the organizations I headed at Treasury, Veterans Affairs, and Education. I look forward to leading the Agency’s budget formulation and management

activities and pledge to work closely with Congress in that effort. EPA has been

commended by GAO and other oversight organizations for linking its strategic plan,

annual plans, and budgets, using a common framework of goals and objectives. If

confirmed, I would work to maintain such links and refine the Agency’s efforts to

connect costs and results.

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The Agency will need to continue developing and maintaining financial systems

that serve multiple customers. I am personally committed to managing and communicating accurate, meaningful information about EPA’s fiscal health and financial

position. I believe Federal agency systems need to be versatile enough to produce

financial statements worthy of clean audit opinions, as well as information about

program costs in a form that is useful to line managers who need to make informed

decisions. No less important is the need for Federal agency systems to produce information for ‘‘big picture’’ analysis of how much is spent to achieve particular results

for the American people. Congressional interest in this kind of information is entirely appropriate, and duly noted. Should I be confirmed in this position, I would

look forward to working with you to respond to your needs.

One principal source of information citing EPA’s accomplishments is its Annual

Report, with which I am sure you are familiar. The Office of the Chief Financial

Officer is also the Agency’s focal point for preparing this report. EPA’s Annual Report has been recognized as one of the best in government for bringing together its

audited financial statements, a comprehensive discussion of program accomplishments, and an assessment of Agency management controls. If confirmed, I would

seek opportunities to communicate to the public ever more clearly how EPA employs

their tax dollars, and what benefits our citizens derive from the valuable work that

EPA does.

In each of the public offices in which I have served, I have been guided by one

over-riding principle: public service is a public trust. I pledge to you that I am committed to upholding the highest standards of honesty, fairness, and integrity. The

people of this great country deserve no less from those of us who serve in such honored positions.

I approach the challenges that lie before me with enthusiasm, and eagerness to

provide expert leadership for the EPA and for this Administration. Should you

honor me with confirmation, I look forward to working with you and to the job

ahead. The Office of the Chief Financial Officer is staffed with some of the finest

professionals anywhere. I am eager to begin our work together.

At this time, I would be pleased to answer any questions you may have.

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RESPONSES OF LINDA MORRISON COMBS TO ADDITIONAL QUESTIONS FROM SENATOR

SMITH

Question 1. In light of the anticipated retirement of a large number of upper and

mid-level EPA staff, what steps would you recommend taking to fill those positions

in order to avoid a lull in overall productivity?

Response. I recognize that the issues of a maturing workforce are among the most

serious that Federal managers need to address. It makes sense that the first governmentwide initiative in the President’s Management Agenda is the strategic management of human capital. I would recommend that EPA’s senior management continue

to seek opportunities to apply best practices in this area, including recommendations of the General Accounting Office (GAO) and others. It is clear that the Agency

cannot accomplish its mission to protect human health and the environment without

a workforce that is trained and deployed strategically for that purpose.

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If Morris Winn and I are confirmed, I would look forward to working closely with

him and other senior EPA executives to promote and implement a Workforce Development Strategy that includes activities targeted at all employee levels within EPA.

I would expect to be a strong supporter of efforts to recruit new talent into the

Agency, as well as programs to develop and retain current expertise. These include

EPA’s SES Candidate Development Program; projects to enhance the skills of new

managers and train journeyman-level employees who aspire to supervisory positions; and career development programs for administrative and support staff.

Question 2. How do you see EPA being affected financially by such a ‘‘brain

drain?′′ Response. If confirmed, I would make it a priority to see that EPA is not affected

financially or otherwise by a loss of expert staff. If the Agency were to lose a significant part of its financial management expertise, that could have a serious financial

effect, but I do not intend to let that happen. The Office of the Chief Financial Officer has a 2001 turnover rate that is slightly lower than that for EPA as a whole

(4.89 percent, as compared with 5.16 percent), and the proportion of its employees

eligible to retire at the end of fiscal year 2004 is also lower than for the Agency

(14.6 percent, as compared with 17.7 percent). The Office of the Chief Financial Officer relies on some very specific technical skills, and I am committed to assuring continuous expertise in years to come.

Question 3. What steps do you propose taking to minimize those financial repercussions?

Response. Given the opportunity to serve, I would make a commitment to lead

efforts in the Office of the Chief Financial Officer to match staff talents with the

important work we will need to do. I would review the Office’s skills assessments

to determine current abilities and estimate future demands on our collective knowhow, and work with senior managers to maintain a top financial management workforce for EPA. I would also promote career development programs for the Office’s administrative and support staff, and for first-line supervisors. I have attended

meetings of a front-line supervisors’ group and look forward to supporting their development if I am confirmed as Chief Financial Officer. I would continue the Office’s own summer intern program, which has a history of attracting students from a variety of backgrounds and academic disciplines. Given the opportunity, I would seek

ways to expand involvement with the EPA Intern Program and other recruiting efforts to attract a diverse group of talented people to begin Federal careers with

EPA’s Office of the Chief Financial Officer.

STATEMENT OF J. PAUL GILMAN, NOMINEE FOR ASSISTANT ADMINISTRATOR FOR

RESEARCH AND DEVELOPMENT, U.S. ENVIRONMENTAL PROTECTION AGENCY

Good afternoon, Mr. Chairman and members of the committee. It is a privilege

to appear before you as the nominee to be the Assistant Administrator for Research

and Development for the United States Environmental Protection Agency (EPA). I

am honored that President Bush has nominated me and I am excited about the opportunity to serve with Governor Whitman. I am delighted to be joined today by my

wife Ginny and our sons Samuel and Will.

Let me first address my qualifications for the position. I believe my education, research, and employment experiences have all contributed to my qualifications. While

employed at Celera Genomics I had the opportunity to participate in the creation

of a fast-paced and highly productive private sector research enterprise. My knowledge of research management was greatly enhanced by this experience. I believe my

immersion in the new fields of genomics and bioinformatics will be useful as we

begin to use these tools to solve scientific and technical challenges in the environmental sciences. Serving as an External Member of the Department of Energy’s

Laboratory Operations Board has afforded me an excellent opportunity for insight

into the management of Federal research facilities. While at the National Academies

of Science and Engineering’s National Research Council I had responsibility for activities in the life sciences, including agriculture. The scientific and technical activities of the EPA were often the subject of our various review and reports. This provided me with an in depth view of some of the most significant issues faced by the

EPA, the scientific context for these issues, and the research personnel and programs at the EPA working to inform the agency’s decisionmaking. At the Office of

Management and Budget (OMB) I had direct responsibility for budget formulation

and oversight for the EPA among other science-related agencies. My responsibilities

also included participation in OMB’s process for the review of proposed regulations

from the EPA. While employed at the DOE my specific responsibilities included advising the Secretary on scientific and technical matters. These included the proVerDate 11-MAY-2000 11:43 Jul 22, 2003 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 81722 SENENV1 PsN: SENENV1
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grams studying human health and environmental effects of energy-related technologies, environmental research, and environmental remediation. During my 13

years working for the U.S. Senate, including 1 year as a congressional Science Fellow of the American Association for the Advancement of Science, I had the opportunity to work on a wide variety of science-related issues, including environment

and human health issues. I participated in the Committee on Environment and Public Works’ investigation of the Three Mile Island Nuclear Power Plant accident, the

passage of the Nuclear Waste Policy Act of 1982, and oversight of the U.S. Department of Energy’s (DOE) research and development programs including its environmental research and remediation programs. As a staff member for a Senate committee I had the opportunity to participate in and learn the congressional budget

process for Federal agencies. As a staff member for Senator Pete Domenici I necessarily became a student of the Federal Government’s overall budget process. Last,

my undergraduate education in the liberal arts included a broad involvement in the

sciences. My graduate education and research focused in the earth and life sciences

with a concentration in ecology and evolutionary biology.

I would like to share with the committee my thoughts about the nature of science

in government and at the EPA. I believe those who pursue science and engineering

in government take on a special role and a weighty responsibility. You must be an

advocate on behalf of the truth. There is a quote of Albert Einstein’s engraved in

the monument to him outside the National Academy of Sciences. It captures my

feelings and my commitment to this committee and my President. It reads:

The right to search for truth implies also a duty; one must not conceal any part

of what one has recognized to be true.

There has been substantial change in the Office of Research and Development at

EPA under the past 2 Assistant Administrators. It has been aimed at improving the

quality and utility of its science. Dr. Robert J. Huggett set major research programs

on a new course. One that was designed to have science serve the mission of the

Agency, not just research for the sake of research. He also initiated a substantial

program for funding university-based research that is also focused on serving the

mission of the agency. His successor, Dr. Norine E. Noonan, supported his initiatives and extended them. There is today a rigorous research planning process aimed

at making the right research available to the EPA regulators when they need it.

We are beginning to see the results of this effort. If confirmed, I will sustain these

reforms and where appropriate, initiate new ones in the pursuit of the best use of

science in the EPA regulatory process.

Thank you for this opportunity to appear before you, Mr. Chairman.

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RESPONSES OF J. PAUL GILMAN TO ADDITIONAL QUESTIONS FROM SENATOR

VOINOVICH

Question. The EPA’s Cancer Risk Guidelines are well overdue. This is having a

detrimental impact on programs across the Agency, not the least of which is the Air

Toxics Program. To quote John Graham in testimony before the Clean Air Subcommittee in 1999, ‘‘cancer-risk determinations will play a critical role in EPA’s implementation of the residual-risk provisions of CAAA–90, yet EPA has still not modernized it’s cancer risk assessment guidelines to account for advances in biological

understanding of the mechanisms of cancer induction. These advances can have a

critical impact on which chemicals are classified as ‘‘carcinogens’’ for regulatory purposes and what dose-response relationships are assumed in quantitative modeling

of cancer risk. EPA has proposed reforms but is moving at a slow pace to adopt

them. The agency’s recent decision to ignore mechanistic science regarding chloroform has sent a signal in the scientific community of the agency’s weakened commitment to modernize methods of cancer risk assessment (Chloroform is a chemical

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shown to cause cancer in animals at high doses that mechanistic science suggests

is unlikely to cause human cancer at low doses).’’ While I realize that EPA has made some progress since 1999, they have yet to

complete the cancer guidelines. Could you please explain your view of the current

state of the problem at EPA and how you would propose to prioritize the scientific

work of the Agency and update the scientific methodologies used not only by ORD

but all of the program offices?

Question 1A. My view of the current state of the Cancer Risk Guidelines

Response. The Deputy Administrator recently (December 20, 2001) gave guidance

for the completion of these guidelines. After a period of public comment set to end

this week, a final draft of the revised guidelines will be prepared for internal review.

This draft will respond to the comments received during the public comment period

and the comments of the EPA’s Scientific Advisory Board. This will be followed by

an interagency review and then the formal process of Agency clearance.

These revised guidelines were first proposed in 1996. They reflect the substantial

improvements in the state of scientists’ knowledge about the mechanisms that cause

cancer. In the earliest years of EPA’s operation the Agency used assumptions about

the carcinogenicity of substance in lieu of detailed knowledge about the mechanisms

of action for the particular substance of concern. Today, it is possible to substitute

our greater knowledge of the mechanisms of cancer development for some of these

so-called default assumptions. It has taken EPA additional time to resolve concerns

over moving away from the earlier default assumptions. Some commenters believe

that the science has not matured to the point where it can be used directly. In an

effort to finalize these guidelines, Deputy Administrator Fisher is working to resolve

some of these differences in approach by calling for a new effort to promote interaction with key Agency constituencies. This tension among groups that differ in

their willingness to incorporate new scientific knowledge into the regulatory process

is not unique to the cancer guidelines. I believe the Deputy Administrator’s effort

to reach out to these different viewpoints is the correct approach to resolving this

and other similar regulatory situations.

Question 1B. How do I propose to prioritize the scientific work of the agency?

Response. In my view, the scientific work of the agency falls into two major categories. There is scientific research that is performed by the EPA, and there is the

use or application of scientific information, whether performed by the Agency, academia, or industry, in creating regulations or in enforcing them. Under the category

of research there is fundamental research and applied research. I believe that the

Agency makes the distinction by using the terms ‘‘core’’ research for fundamental

work and ‘‘problem-driven’’ research for applied work. Fundamental research must

be performed to understand the basic mechanisms of how substances in the environment can adversely affect our health. There is also fundamental research which is

necessary to improve our understanding of how ecological systems operate and how

they are affected by human activities. Prioritizing fundamental research is a matter

of identifying critical gaps in our understanding. Prioritizing applied research used

for a particular regulatory activity is different. To the extent regulatory needs are

driven by statutory deadlines prioritization is a fairly straightforward process. It becomes more complicated, however, when statutory deadlines do not anticipate the

time necessary for the research to be completed.

Question 2. In a 2000 National Research Council Report, ‘‘Strengthening Science

at the Environmental Protection Agency,’’ the Office of Research and Development

at EPA was recognized as the Agency’s most senior science official. In 1995, in response to the interim NRC report which recommended that the Assistant Administrator for ORD be designated as the chief scientific and technical officer at EPA,

the head of ORD was asked to coordinate the agency’s scientific-planning and peerreview activities.

The 2000 NRC report found that the 1995 move was inefficient and that the head

of ORD was not given real authority over science activities. Could you please explain your view on the role ORD should play in developing science at the EPA?

Response. Again, there are two elements to ‘‘science’’ at EPA. The first is research

in support of the regulatory mission and the second is the use of that research and

other scientific information in the regulatory decisionmaking process. The Office of

Research and Development (ORD) acts as a service to the programmatic offices of

the EPA for example, the Office of Air and Radiation and the Office of Water. ORD

must develop research plans in cooperation with those offices that can provide the

right scientific information at the appropriate time to support the regulatory process. ORD also has a role in the programmatic offices’ use of scientific information

in regulatory decisions. ORD actively participates and leads a number of cross-agency activities aimed at improving the use of scientific information and analytical tools

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for the regulatory process. ORD also reviews specific regulatory actions. In my view

these fundamental roles are appropriate and the burden is on ORD to provide effective scientific leadership and the programmatic offices to respond.

RESPONSES OF J. PAUL GILMAN TO ADDITIONAL QUESTIONS FROM SENATOR CRAPO

Question 1. Do you believe that R&D is an integral part of the EPA’s functions?

Does it have an impact on future compliance costs, available technologies, proposed

regulatory levels, or future decisions made by the regulated community?

Response. In my view, while the regulatory activities of the EPA are carried out

within a statutory context, the regulatory decisionmaking process is largely an analytical one based on scientific and technical knowledge. As such, research and development plays into all the elements of the process you have identified.

Question 2. A September 1999 GAO report was very critical of the EPA’s

prioritization of drinking water R&D programs. In addition to noting that the agency regularly requested lower than authorized levels of funding for drinking water

R&D, the GAO found that there was little long-term or cohesive planning within

the ORD. What steps has the EPA taken to correct this problem? With your management and strategic planning background, what additional steps will you implement at the EPA to address this situation?

Response. Over the past several years ORD has designed and begun implementing a research planning process as part of the annual budget process. A key

feature and the first step in the process is that the various programmatic offices

of the EPA (e.g., the Office of Air and Radiation, and the Office of Water) are consulted as to their scientific and technical needs. ORD then plans out the appropriate

way in which to carry out the research necessary to provide their scientific and technical needs. These plans cover multiple years. They also identify the appropriate

role for different EPA laboratories, academic researchers, and collaborations between EPA, industry, and other non-governmental research organizations. I would

like to extend this process to the point where laboratories of the various program

offices and Regional Offices are well integrated and informed about each others activities.

RESPONSES OF J. PAUL GILMAN TO ADDITIONAL QUESTIONS FROM SENATOR SMITH

Question 1. In light of the anticipated retirement of a large number of EPA scientists and individuals with specific technical background, what steps would you

recommend taking to fill those positions in order to avoid a lull in overall productivity? How do you see EPA being affected by such a ‘‘brain drain?’’ What steps do

you propose taking to minimize those repercussions?

Response. There are some important activities recently started in ORD that are

intended to ameliorate the anticipated retirement situation. One of the most important, in my opinion, is a program to attract post-doctoral researchers to EPA. These

researchers, with fresh new ideas and experiences, may serve as an important resource for EPA in the future. A Work Force Plan is also being developed. It necessarily assumes some things about the future direction of EPA and the resulting

research needs. I plan to seek expert advice from outside EPA in this process.

Question 2. As the EPA continues to evaluate and review current and emerging

environmental sciences and technologies, how would you propose to balance scientific uncertainty with the need for timely policy decisions?

Response. The goal of anyone managing a research effort in support of a regulatory or policy decisionmaker is to minimize the leap between what we know and

what we must decide. Sometimes the gap is the absence of information. Sometimes

the gap is one of uncertainty about the reliability of what we do know. The challenge is to decide how important reducing that uncertainty is and at what cost. For

some critical decisions it is appropriate to conduct further research and repeat prior

research. For some less important decisions we may be able to accept higher levels

of uncertainty. This decisionmaking process should be carried out on a case-by-case

basis and in consultation with stakeholders affected by the decisions in question.

Question 3. Senators Jeffords, Graham, Crapo and I will soon introduce legislation

to reauthorize the State revolving loan funds of both the Clean Water Act and the

Safe Drinking Water Act. One of the challenges we have faced is a large gap between infrastructure needs and the money available to help communities meet those

needs. As such, we have been exploring various cost-saving measures, one of which

includes additional research into new technologies for water and wastewater faciliVerDate 11-MAY-2000 11:43 Jul 22, 2003 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 81722 SENENV1 PsN: SENENV1
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ties. I am particularly interested in new approaches to the problem of combinedsewer overflows.

Can you describe for me the status of research into new technologies, including

how much is currently on-going? How can you help make this a greater priority for

the Agency?

Response. It has been said that even small improvements in cost reduction for the

replacement of water infrastructure could have great effects given that the costs of

infrastructure replacement in the not too distant future are estimated to be as high

as $1 trillion. An analogous situation can be found in the Superfund Program where

a statutorily mandated research program, the SITE Program, was created to develop

cost-saving technologies for the program. Since the initiation of the SITE Program

in 1986, cleanup of contaminated sites through the use of innovative technologies

has resulted in a total cost savings (adjusted for inflation) of over $2.3 billion dollars.

Current ORD activities that relate to water infrastructure needs is limited. ORD

serves the Office of Water as a performer of research. Priorities are set in consultation with that Office. To the extent the Office of Water has legislative mandates

that must be given higher priority it will likely be difficult to greatly expand infrastructure research. If confirmed, I will work closely with that office to identify opportunities for future research initiatives in this area.

Question 4. As you may know, I have served on this authorizing committee for

many years and in that capacity I have supported giving priority to non-animal, alternative test methods for inclusion in EPA’s programs. I also strongly supported the fiscal year 2002 $4 million earmark for the Office of Research and Development

(ORD) to research, develop and validate non-animal, alternative test methods.

In your capacity as Assistant Administrator for Research and Development, will

you commit to meeting with all stakeholders, including representatives from a coalition of animal protection organizations to discuss the opportunities for assessing

which test methods to prioritize to ensure the most rapid and substantial reduction

possible in animal use at the EPA and to replace animal tests with faster, less expensive, and more reliable non-animal methods?

Response. Yes.

STATEMENT OF MORRIS X. WINN, NOMINEE FOR ASSISTANT ADMINISTRATOR FOR ADMINISTRATION AND RESOURCES MANAGEMENT, U.S. ENVIRONMENTAL PROTECTION

AGENCY

Mr. Chairman and members of the committee, it is with great honor and privilege

that I am here today as the nominee of President Bush and Governor Whitman for

the Environmental Protection Agency’s Assistant Administrator for Administration

and Resources Management, also known as OARM.

First of all, I am very proud of being asked to serve in the Bush Administration

and with Governor Whitman, both of whom are aggressively working to enhance the

level of public health and environmental protection for all Americans. I look forward

to working closely with the Congress, to improve management and performance at

EPA.

Let me speak briefly about my background and discuss where I hope to bring new

ideas and leadership to the position, if confirmed.

I have almost 30 years of experience in public service for the great State of Texas,

working for four Texas Governors and two Attorney Generals, who held different

philosophical views. I had a leadership role in managing diversity, administrative

support activities, and human resource programs in the offices of the Texas State

Attorney General and Commissioner of Insurance. Most recently, as the Director of

Human Resources in the Comptroller’s Office, I developed and implemented an effective strategy to recruit, hire, train, and retain many high performing employees.

We hired approximately 700 employees over 24 months without any grievances or

lawsuits.

Throughout my career, I have pursued public service with a passion, and have

dedicated myself to ‘‘good’’ government and governance, taking a balanced and common sense approach to managing both people and processes. I am a fiscal realist.

I intend to practice frugal spending of tax payers’dollars in all the offices under my

management authority. I believe that public service, at all organizational levels,

must be delivered with integrity, energy, and purpose. I bring to this position a keen

and sincere understanding that public service is not simply a job, nor a profession!

It is a public trust and high honor.

On this note, I firmly believe that our Federal employees and the EPA family of

approximately 18,000 people are indeed the Agency’s most valuable asset. As we

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raise the bar of fairness and equity in the workplace, we must recognize that there

are heroes on both sides of every issue. There are those who speak up about injustice on racial or gender issues; or government waste. On the other hand, there are

those who tell you about all the right and good things happening at an Agency. I

recognize that we need both of these perspectives in order to continually look for

ways to improve the talent and productivity of our workforce and performance of

our Agency.

If given the opportunity, I look forward to bringing these experiences and perspectives to the leadership team at EPA and to continuing to sharpen EPA’s focus on

efficient management services.

I would like to summarize the values and principles that will guide me if confirmed as EPA’s Assistant Administrator for OARM. They include: integrity and fiscal responsibility; openness and willingness to listen; fairness and accountability;

proactivity; and a spirit of partnership.

EPA’s OARM provides leadership to ensure sound management of administrative

services throughout the Agency. The Office has a broad range of functions, including: management of human resources; contracts and grants management; employee

health, safety and security; and facilities construction and maintenance.

My goal in providing leadership to these functions, is to help EPA, and its employees find the will to serve a growing and more demanding customer base. To lead

this organization into a model or ‘‘best practice’’ organization, I would like to establish a system of total accountability where employees at all levels will ‘‘own’’ their

jobs, that is, the duties assigned them. Employees should be free to succeed or fail

based on their measured ability.

The tragic events of September 11th and the ongoing concerns over increased terrorist activity, have raised the level of anxiety throughout our Nation. Federal employees have shown an exemplary degree of courage and dedication to serving the

American public, rising to the President’s challenge and returning to their jobs. I

see one of my primary responsibilities as ensuring the safety and security of EPA’s

workforce and facilities. I will work to ensure that current efforts are consistent

with the security demands of our times and work to test the responsiveness of those

systems.

I am also aware that both the Congress and the President have concerns about

the Federal Government’s Human Capital Crisis, and the resulting workforce challenges. In line with GAO’s recommendations, I will ensure that we integrate workforce planning into the Agency’s Strategic and Budget Planning processes, and

under the umbrella of EPA’s Human Capital Strategy, I will work hard to support

the President’s Initiatives.

Lastly, I will work to ensure a high level of integrity and accountability in the

management of our financial resources. Each year, approximately two-thirds of

EPA’s budget is obligated as contracts or grants. The management of these resources is a very important function and must be done well. In this regard, I have

been informed that the Agency has made substantial progress over the past 2 years,

so much so that the grants close-out backlog has been virtually eliminated, reduced

by 97 percent. If confirmed, I will focus my efforts, and the efforts of my management team, on strengthening oversight and making sure that we have early warning systems built into our processes and that the American people get cost-effective

results from these contracts and grants.

In summary, effectively discharging the responsibilities of the Office of Administration and Resources Management is critical to meeting EPA’s mission. I believe

that it is in the best interest of EPA and the public to integrate mission goals and

effective management with the principles of ‘‘good’’ government. I believe that bureaucracy, that part of government that is brushed with a paint brush of regulations

and process, is important so long as the process never gets in the way of good government and public policy. Bureaucracy is bad when it rewards poor performance

in the same manner that excellent performance is rewarded. Bureaucracy is also

bad when we govern by excruciating detail, dictating every result in advance. This

kills management creativity and common sense.

This position will be a tough job as there are many challenges ahead for this organization. If confirmed, I pledge to bring the full weight of my integrity, energy, and

experience to bear on meeting those challenges and raise the bar of excellence for

this organization.

Let me close by expressing my appreciation to the committee for its recognition

of and support for the Agency’s vital mission and the opportunity to appear here

today. I’m pleased that my wife and children are here and would like to thank you

for the courtesies extended to them. At this time, I would be pleased to take any

questions that you may have.

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RESPONSES OF MORRIS X. WINN TO ADDITIONAL QUESTIONS FROM SENATOR SMITH

Question 1. In light of the anticipated retirement of a large number of upper and

mid-level EPA staff, what steps would you recommend taking to fill those positions

in order to avoid a lull in overall productivity?

Response. One of the most serious human capital issues in the Federal Government is the retirement of tenured managers. While this fact is recognized by the

President, Congress, the Office of Management and Budget (OMB) and the Office

of Personnel Management (OPM), it will be the Federal agencies that have primary

responsibility for ensuring that the departure of upper and mid-level staff will not

result in a crisis in the tax-payer or customer confidence.

In this regard, I am committed to working with senior EPA executives to fully

implement several strategies including, but not limited to the following:

• Engaging in the Senior Executive Service (SES) Candidate Development Program.

• Rotating current SES members and creating senior advisors or mentor partners. This process will relieve certain SES members of day-to-day management reVerDate 11-MAY-2000 11:43 Jul 22, 2003 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6621 81722 SENENV1 PsN: SENENV1
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sponsibilities and allow them to transfer valuable knowledge to less tenured managers in an orderly manner.

• Fully implementing a recruiting strategy that attracts and retains workers

who have skills needed for the future.

• Working closely with all senior EPA executives to identify best practices that

will allow the Agency to use information technology to capture the knowledge of retiring employees.

Question 2. How do you see EPA being affected by such a ‘‘brain drain?′′

Response. If confirmed, I hope to assist the Administrator and senior EPA executives to minimize the effect of potential retirements by supporting a workforce planning system. This system will provide standardized workforce planning requirements and methodologies to be used Agency-wide. It will include:

• identification of knowledge, skills and competencies needed in the future;

• types and numbers of positions needed by series and grade;

• an inventory of skills and competencies in the current EPA workforce;

• an examination of statistical data on expected attrition by occupational categories and grade levels; and

• a comparison of future skill needs (both skills/competencies and numbers by

occupations and grades) to existing workforce and identification of the gaps.

Also, this system will help EPA forecast new hires by program office and Region,

taking into account budget projections and funds needed for training and development; prepare multi-year workforce plans to guide decisions on workforce composition and hiring; and guide employee development efforts at the local and national

level. Based on the workforce plans, EPA will develop and implement national and

local recruitment strategies; develop strategic approaches to retaining employees

with critical expertise and competencies; and maximize flexibility in using workforce

programs that contribute to EPA’s attractiveness as an employer. It is my sincere

belief that these efforts coupled with the will of EPA senior staff will result in a

neutral affect of the ‘‘brain drain.’’

Question 3. What steps do you propose taking to minimize those repercussions?

Response. If confirmed, I intend to utilize my energy to tailor a holistic approach

to manage the repercussions of a ‘‘brain drain.’’ The first step is to target recruitment that attracts a diverse and well qualified pool of applicants. I am advised that

this is presently being accomplished through EPA’s web-based systems, such as ‘‘EZHire’’, a new automated recruiting system; and ‘‘HR Pro’’, the new human resources

information system.

In addition, I will seek creative ways to look at phased retirement approaches,

that is, any plan where potential retirees could work longer or part-time without

an adverse affect on the retirement annuity.

One of the paramount challenges for EPA will be to offset any potential research

gaps caused by retiring scientists. I understand that the Agency is considering options for special hiring legislative authority which would enhance EPA’s ability to

compete for high quality research scientists. If J. Paul Gilman, Linda Morrison

Combs and I are confirmed, I intend to work closely with them on this issue.

In essence, I am committed to exploring a full range of options that will minimize

any repercussions from retirement or other separations. EPA has a fairly low annual turnover rate of approximately 5 percent, lower than the Federal Government.

This allows EPA senior executives to be thoughtful in planning strategies for the

continued development and retention of its workforce.

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NOMINATION OF JOHN PAUL SUAREZ

TUESDAY, MAY 7, 2002

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC.

The committee met, pursuant to notice, at 11 o’clock a.m. in room

406, Senate Dirksen Building, Hon. James M. Jeffords [chairman

of the committee] presiding.

Present: Senators Jeffords, Boxer, and Corzine.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS,

U.S. SENATOR FROM THE STATE OF VERMONT

Senator JEFFORDS. Good morning. I would like to welcome Mr.

John Peter Suarez, President Bush’s nominee to be the Assistant

Administrator of Enforcement and Compliance Assurance for the

Environmental Protection Agency.

I would like to let everyone know how we will proceed this morning, and I will recognize—I believe Senator Smith will be here, and

if he comes, he will have an opening statement; and Senator

Corzine who will, of course, introduce Mr. Suarez.

Before you begin your statement, if you would please introduce

any of your family members that you may have with you.

Mr. SUAREZ. Thank you, Senator Jeffords.

With me, right behind me, is my wife, Natalie, and she has our

2-year-old, Lena, in her lap; and this is my daughter Chloe, who

is just a little bit over 4 years old. This is my sister-in-law, Ann

Suarez. This is my brother, Paul Suarez. And hiding in the back

in the stroller, right now sleeping—but I can’t guarantee that—is

my son Maxwell, who is about 8 weeks old.

Senator JEFFORDS. All right. Well, you’re doing very well.

Now I would ask Senator Corzine if he has a statement he would

like to make.

OPENING STATEMENT OF HON. JON S. CORZINE,

U.S. SENATOR FROM THE STATE OF NEW JERSEY

Senator CORZINE. Thank you, Mr. Chairman. It is my pleasure

to introduce my fellow New Jerseyan, John Peter Suarez, to the

committee; he is more informally known as ‘‘J.P.’’. Mr. Suarez has

been nominated by President Bush, as you noted to be the Assistant Administrator for EPA’s Office of Enforcement and Compliance

Assurance, and I also would like to welcome his family; they are

terrific folks.

I want to note very clearly that J.P. Suarez has served with distinction as an outstanding public servant in several capacities in

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New Jersey. He has worked as an Assistant U.S. Attorney in Newark. He later served Governor Whitman as an Assistant Counsel

and as Special Assistant to the Director of New Jersey’s Division

of Criminal Justice. Most recently, Mr. Suarez served as Director

of New Jersey’s Division of Gaming Enforcement.

He has an outstanding reputation among my fellow New

Jerseyans for integrity, professionalism, and hard work. I know he

has been working very hard to prepare for this new role. He has

received awards throughout his career, and I think he will bring

a strong enforcement ethic to the EPA, which I think all of us

would like to see.

Mr. Chairman, the laws that EPA implements are designed to

protect public health and the environment. Strong enforcement of

these laws is critical to my home State and to all of the people of

the Nation. As I have noted, to where you are probably bored hearing it, New Jersey is unfortunately the home of more Superfund

sites than any other State in the Nation. We are concerned about

enforcement in New Jersey. We have continuing problems with air

and water pollution, and the impact on health across my State is

serious, as it is, again, across the Nation. So this is one of the most

important jobs that I think we have.

I think we can depend on Mr. Suarez to fulfill those responsibilities and enforce those laws vigorously. We’ve had private discussions about this, and I take him at his word, Mr. Chairman, and

I look forward to working closely with him and I know that he will

be cooperative with the committee and with you as the Chairman.

So it is my pleasure and heartfelt, positive endorsement of Mr.

Suarez’ nomination.

Senator JEFFORDS. Well, thank you. That’s a good start.

Mr. SUAREZ. It’s a wonderful start.

Senator JEFFORDS. Please proceed.

STATEMENT OF JOHN P. SUAREZ, NOMINATED TO BE ASSISTANT ADMINISTRATOR OF THE OFFICE OF ENFORCEMENT

AND COMPLIANCE ASSURANCE, ENVIRONMENTAL PROTECTION AGENCY

Mr. SUAREZ. Thank you, Mr. Chairman and Senator Corzine.

Thank you very much for that wonderful and gracious introduction.

To the members of the committee, I would like to thank you for

the opportunity to appear before you today to introduce myself and

to talk about my nomination for the position of Assistant Administrator of the Office of Enforcement and Compliance Assurance in

the Environmental Protection Agency.

First, I must thank the President for his trust and confidence in

nominating me to head the Office of Enforcement and Compliance

Assurance. I must also thank Governor Whitman, whom I have

had the pleasure of working for previously, and I look forward to

doing so again.

I believe that our Nation’s environmental laws are critically important to every American, and I hope to have the opportunity to

enforce those laws to help ensure that all of us, especially our children, can enjoy cleaner air, purer water, and better-protected land.

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I believe that my background and experience have prepared me

well for this challenging position, and I would like to take a few

moments to describe that for you.

My interest in working in the public sector and serving the public interest is deep-rooted and comes, in large part, from the values

that were instilled in me by my parents. My father, whose family

hails from Spain, and my mother, who was born and raised in

Nicaragua, believed that public service was a noble calling and encouraged all of their children to consider careers in government or

in service to others. My brother, who I introduced earlier, went to

the Air Force Academy and now serves as a Lieutenant Colonel,

currently assigned to the Pentagon, while my oldest sister has

nearly completed her doctoral thesis and hopes to provide counseling and therapy to minority adolescents. My other sister is a

lawyer who works for her husband. All of my siblings are successes, in my eyes, and I admire each of them.

When I went to law school at the University of Pennsylvania, I

knew from the moment I entered that I wanted to make a career

as a prosecutor. After I graduated from law school I clerked for a

Federal judge and then applied to the U.S. Attorney’s Office, knowing that this was where I wanted to start my career. I was, quite

fortunately, accepted by the District of New Jersey and began to

develop as a lawyer in a terrific prosecutor’s office. While at the

U.S. Attorney’s Office I learned many skills that I believe are essential for a chief law enforcement officer. I learned how to try

cases, how to manage investigations, and how to be a tough but

fair prosecutor.

I also saw first-hand the tremendous impact that enforcement

can have on the lives and communities of those affected. I was fortunate to be able to try some difficult and exciting cases while an

Assistant U.S. Attorney, and as a result of one of those cases—the

successful prosecution of an Atlantic City street gang—I was

awarded the U.S. Attorney General Director’s Award.

I was fortunate that I did not lose any of the cases that I tried

while an Assistant U.S. Attorney, and to me, that is a testament

to the quality of the investigators, agents, and supervisors that I

had while in New Jersey.

If I am confirmed for this position, I believe that the lessons

learned while in the U.S. Attorney’s Office will have equipped me

well to understand the challenges facing agents, inspectors, and

legal staff who work the front lines of environmental enforcement

actions.

After I left the U.S. Attorney’s Office I want to the State of New

Jersey’s Division of Criminal Justice, where I was a Special Assistant to the Director of a 600-person statewide law enforcement

agency. It was there that I began to learn how to manage attorneys

and investigators and how to maintain constructive relationships

with colleagues and other State agencies, Federal agencies, and the

local law enforcement community. I worked with the Director to

shape policy for the Division of Criminal Justice, and helped

launch a number of statewide initiatives addressing longstanding,

entrenched problems plaguing New Jersey’s communities. Through

this experience I learned the valuable lesson of working cooperaVerDate 11-MAY-2000 11:43 Jul 22, 2003 Jkt 000000 PO 00000 Frm 00059 Fmt 6601 Sfmt 6601 81722 SENENV1 PsN: SENENV1
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tively across organizational lines, with different agencies, to

achieve the best results possible for a law enforcement program.

Governor Whitman then asked me to join the staff of her Counsel’s Office, where I provided advice to the Chief Counsel and the

Governor on criminal justice matters. It was while working in that

capacity that she nominated me to be the Director of the Division

of Gaming Enforcement, the State law enforcement agency charged

with enforcing the laws and regulations related to the casino industry. As the head of the Division of Gaming Enforcement, I oversaw

a staff of 400 employees, charged with ensuring the good character

and integrity of the people and businesses who work in that industry. The Division was comprised of several units, including a Criminal Enforcement Section, a Civil Regulatory Prosecutions Unit, an

audit function, and a Technical Services Bureau that dealt with the

highly technical hardware and software associated with the casino

industry.

As the Director, I was able to lead the professionals from the Division in shaping policy and enforcing statutes and regulations in

either the criminal or civil context, and also to set the agency’s enforcement priorities.

I led the Division in the context of its licensing work and crafted

appropriate enforcement responses for various degrees of statutory

violations in both civil and criminal matters.

My experience as the Director of the Division of Gaming Enforcement provided me the opportunity to use the skills I had developed

as a lawyer with an enforcement background in evaluating and

analyzing the appropriate action to take against a regulated entity

in order to achieve the best results. In leading a large law enforcement agency with both civil and criminal responsibilities over a

highly regulated industry, I developed management skills that will

serve me well if I am confirmed to this position.

Mr. Chairman, as is reflected in the summary of my professional

career, I have been involved in criminal or regulatory enforcement

at both the Federal and State level for over 10 years. My experience in working in very active enforcement offices has instilled in

me a set of what I call ‘‘core beliefs’’ that come with being in charge

of a government office. These core beliefs include, first and foremost, fairness, for I believe that it is incumbent upon a law enforcement official to use the tremendous resources available in a

fundamentally fair way, lest the entire process lose sight of the impact that it can have on individuals and communities.

I also believe that as a law enforcement official you can oftentimes achieve better results by trying to work cooperatively with

those who many would call your adversaries. Indeed, in my experience in the Division of Gaming Enforcement, I found that on many

issues, even though the industry may have disagreed with the ultimate decision that was reached, the process of soliciting industry

input and enlisting their counsel works to ensure a strong cooperative relationship between the regulated and the regulator.

I also believe that flexibility is a critical component to a cooperative approach because with flexibility you can oftentimes achieve

the desired result quickly and with lest cost.

A necessary corollary, however, to a cooperative and flexible approach, is the willingness to pursue enforcement actions against

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those entities who are either unwilling or unable to conform their

conduct to what is required by the law. In the proverbial carrotand-stick model, I believe a good enforcement official has the stick

and is not afraid to use it.

Finally, a good enforcement official must have faith in the system—faith in the legislative process which produces the laws which

we must enforce, and faith in the legal system which is the forum

to which we must turn when controversies and cases need to be

settled. My experience has taught me that the system works, and

it is a system that I have enjoyed being a part of throughout my

career.

My experience, my commitment to public service, and my fundamental belief that our environmental laws provide the best guarantee that our Nation’s natural resources will be protected, will

allow me to lead the Office of Enforcement and Compliance Assurance. I can provide strong leadership and can bring to the office

those core beliefs that I think are the mark of a good enforcement

official. I expect to rely fully upon the experience and expertise of

the very accomplished and impressive dedicated career staff employees in the Office of Enforcement and Compliance Assurance. I

have met many of those dedicated staff and I am confident in their

ability to assist me in the day-to-day management and policy issues

that may arise.

Mr. Chairman, I would like to assure all the members of this

committee, the President, and Governor Whitman that, if confirmed, I will apply myself with the same vigor and energy that

have marked my career to date, and that I will work as long and

as hard as necessary to ensure that our Nation’s environmental

laws are being enforced as intended by Congress—firmly and fairly.

At the end of the day I will do everything in my power to live up

to the promise that I have made to my three children, that this

planet of ours will be a good and safe place to live. I will dedicate

myself to a comprehensive enforcement program that will safeguard our water, our air, and all of our Nation’s precious natural

resources, because I believe that enforcement must be a vigorous

and active component of the EPA’s efforts to protect our Nation’s

resources. I would very much appreciate the opportunity to apply

my experience and my desire to enforce these important environmental laws that Congress has put in place.

I thank you for your patience this morning and I look forward

to answering any questions that you may have.

Senator JEFFORDS. Well, I thank you for a very excellent statement.

We will now proceed to questions. After any members have had

a chance to ask questions, I will conclude the hearing with two

obligatory questions which I will ask you.

Of course, members have the right to submit questions to you,

but I wouldn’t lay awake nights worrying about that. So I think we

will just proceed.

For those committee members who are unable to be here today,

they will have some time to ask you questions.

Mr. Suarez, I am concerned that your legal experience has not

dealt with our environmental laws. The responsibility of the position you have been nominated to fill is a very important one. Our

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environmental laws can be rendered meaningless without adequate

enforcement. While there is some transferability between your

criminal enforcement experience and environmental enforcement,

the statutes governing environmental protection are complex and

often require extensive knowledge as to the underlying case law.

With this reservation, I look forward to your response, but I

would like you to make just a comment or two on that question.

Mr. SUAREZ. Yes. Thank you, Mr. Chairman.

One of the things that I can tell you and assure you that has impressed me already in the Office of Enforcement and Compliance

Assurance is the expertise and experience of the career staff that

will be in the office. There are a little over 3,300 employees in the

Office of Enforcement and Compliance Assurance, and I fully intend to call upon their advice and counsel and expertise to help

guide me when I start dealing with some of these complicated environmental regulations and statutes to which you made reference.

I can also assure you, Mr. Chairman, that I will continue to learn

the law, to learn its application, and to immerse myself in the detail that is necessary so that I can make informed policy decisions

on the appropriate enforcement action. And with my enforcement

background and experience and my management skills, I believe,

Senator, that I can bring good leadership to the Office of Enforcement and can enforce our environmental laws soundly and fairly.

Senator JEFFORDS. During that experience, did you have any opportunity to be in Superfund situations in your experience?

Mr. SUAREZ. I did not have any direct experience with Superfund. When I was the Special Assistant to the Director in the Division of Criminal Justice, there was an Environmental Crimes Section that we did, obviously, supervise, and on a number of occasions I had interaction with them on some environmental crimes

cases. But Superfund itself was not implicated in those.

I can tell you, Mr. Chairman, that I believe in the polluter pays

principle. I think that it is an important principle of our law. And

again, I would continue to work very closely with our Office of Site

Remediation and Enforcement if I am confirmed to this position.

Senator JEFFORDS. This Administration, through its budget proposal, has focused on giving more enforcement responsibility to the

States. Would you enlighten me as to what that means and what

your view is?

Mr. SUAREZ. Mr. Chairman, I do believe that the EPA must work

closely with the Regional Offices, as well as with the States, who

are oftentimes the front lines in inspections and in enforcement

cases, gathering the evidence that is necessary. But that does not

mean that there is an abdication of the role of EPA’s Office of Enforcement. If I am confirmed, I would work very closely with the

Regions and the States to identify those national cases that have

the most significant impact on public health and the environment,

and I would want to make sure that the resources available to the

Office of Enforcement are directed toward those types of cases,

while working cooperatively with the States and the Regions to

make sure that as many companies are being inspected as possible

to make sure that we have as much compliance as we can get to

ensure that our water stays clean and our air stays pure.

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Senator JEFFORDS. Have you had an opportunity to review States

to see what kind of enforcement they have been doing, and any

feeling as to the effectiveness of State enforcement?

Mr. SUAREZ. I have not substantively been involved in the review

of State programs, but it is an important part of what the Office

of Enforcement can and should do. I believe that if a State has a

delegated program in any one of the disciplines that it can accept

delegation for, I believe that it is important for the Office of Enforcement to make sure that the States are meeting their minimum

threshold requirements under the law, because if a State is going

to assume responsibility, it must ensure that it is in compliance

with that Federal minimum.

I would work with my office to make sure that we have a level

of satisfaction that States are in compliance. If not, I would work

with those States to bring them up to compliance, or we would

evaluate what our options would be.

Senator JEFFORDS. What is your opinion of State audit privilege

laws, which give a person who voluntarily discloses environmental

violations a shelter from enforcement?

Mr. SUAREZ. I believe, as I have come to understand the audit

program, that it is a very important component of enforcement and

compliance assurance. I believe that the self-disclosure or audit

program in the EPA is a good program to encourage companies to

engage in voluntary audits so they can examine their own operations and determine whether or not they are in compliance with

the law, and then take remedial action quickly, effectively, and efficiently.

I have some concerns about State audit privilege laws that are

not consistent with Federal law. It is my understanding that there

are a number of States that have audit privilege laws that would

bar the use of audit information from enforcement work. I would

want to work with those States and those Regions to address those

concerns, to make sure that there was no information shielded

from enforcement, so that if there were circumstances where that

information was necessary, it would be accessible to us.

Senator JEFFORDS. This committee has paid close attention to the

record of enforcement of EPA. Of particular concern is the ongoing

enforcement of new source review. If confirmed, what will you do

to ensure that the new source review cases continue to be addressed?

Mr. SUAREZ. Mr. Chairman, I recall some time ago that our Attorney General indicated that the legal premise upon which the

new source review cases is founded is a sound one, and that my

counterpart in the Environmental and Natural Resources Section

of the Department of Justice has indicated that they will continue

to prosecute those cases.

I can assure this committee that if I am confirmed, we will continue to investigate new source review cases, and we will work

with the Department of Justice to see that they are prosecuted.

Senator JEFFORDS. Thank you.

Senator Corzine?

Senator CORZINE. Thank you, Mr. Chairman. I am glad you

asked the new source review question because I think it is very important that we take a proactive role with regard to air quality

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standards that are impacting across State lines. It’s one of those

issues that I think we will be watching very closely in our oversight function as we go forward.

Last year in Governor Whitman’s appearance before the committee in her confirmation hearing, I asked her about the backlog

of Title 6 environmental justice cases, and some of the concerns

within EPA. Have you been briefed on this and on what progress

has been made in eliminating that backlog? And what are your

general views about environmental justice issues?

Mr. SUAREZ. As to Title 6, Senator, yes, there is a task force that

is working on the backlog. I have been briefed about its progress

and, in fact, had a meeting with the attorney who is heading that

effort. She informs me that they are making good progress on the

backlog and that they have reduced—and I can get you the exact

numbers, Senator, but I think it’s about by one-third. I will bring

that information to you.

Insofar as environmental justice is concerned, if confirmed, I am

actually looking forward to working with the Environmental Justice Office to make sure that the concerns that are aired through

the Environmental Justice Office are incorporated well into all the

Office of Enforcement and Compliance work and, indeed, throughout the EPA. I don’t believe that any single community, minority

or underrepresented, should bear more of the burden, more of their

fair share, of environmental consequences, and therefore I would

work with our environmental justice program to make sure that

their concerns are heard.

Senator CORZINE. Going back to the Superfund considerations, I

am pleased to hear you embrace the concept of polluter pays. As

you know, there has been a major shift in how the funding of the

cleanup of our Superfund sites has taken place, moving away from

that. I think some of that relates to how aggressive we have been

in Superfund enforcement.

Have you had a chance to review those policies, procedures, and

actions within EPA? Are you satisfied that we are doing everything

that we need to do to pursue polluter pay principles, and what

steps do you plan on taking to make sure that there is a followthrough on that, that we adhere to the principle?

Mr. SUAREZ. I have certainly had the benefit of numerous briefings with our Office of Site Remediation and Enforcement, which

does our Superfund legal work, cost recovery work. I can assure

you, Senator, that if I am confirmed I will work very closely with

the Superfund office to make sure that we continue to be as aggressive as we can in identifying potentially responsible parties and get

cost recovery from them for our cleanup efforts. We will continue

to try to identify all those PRPs that can contribute to clean up,

and we will work with the Office of Solid Waste and Emergency

Response to clean up—to identify those sites that are ready for

cleanup and to clean up as many as possible.

I believe that the funding level has remained fairly static, and

I can tell you that we are using the funding that is available to us

to pursue as many actions as we can.

As you mentioned, Senator, Superfund is an incredibly important

program. It is one that I look forward to spending some time with.

I can also tell you from my personal experience that I have seen

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both sides of Superfund, because we actually live about two miles

from a successfully cleaned-up site in New Jersey. It is an area

where I’ve seen both the positives and the negatives, and it is an

area that I would want to make sure gets the attention it needs

in OECA.

Senator CORZINE. One of the original premises in the Superfund

legislation was that many oil companies and refineries, and especially chemical companies, were granted several liability exemptions as part of the tradeoffs of responsibilities with regard to polluter pay issues. And as a consequence, there was a tax imposed

as a part of that negotiating process.

If we are not able to reinstitute the polluter tax, I wonder if you

have a view about whether we should go back and review this civil

liability waiver?

Mr. SUAREZ. Senator, candidly, I have not looked at the issue of

the civil liability waiver and its interplay with the Superfund tax.

I can tell you that I believe that Superfund needs funding. Where

that comes from is a matter, as I understand it, for appropriations

and for discussions between appropriations and the Administration. But there is no doubt in my mind that Superfund needs to

be funded.

Senator JEFFORDS. Senator Boxer?

OPENING STATEMENT OF HON. BARBARA BOXER,

U.S. SENATOR FROM THE STATE OF CALIFORNIA

Senator BOXER. Thank you, Mr. Chairman. I would like to summarize my statement and ask Mr. Suarez a couple questions in my

time.

Mr. Chairman, the Office of Enforcement and Compliance Assurance, OECA, is very important to me because that office will enforce the laws that are very dear to my heart and that I think are

essential for the people of this country.

Last August I put a hold on the Administration’s first OECA

nominee, Don Chagradas. I did it for a number of reasons, stemming from a concern that he would do more harm than good to environmental enforcement, and that concern was based on his record

as head of the Ohio EPA. He had a lot of experience, but unfortunately he took the side of polluters, not the side of protecting the

environment.

So I was looking forward to the Administration’s second nominee

to see who we would come up with, and I am very pleased to meet

Mr. Suarez.

Mr. Suarez, my comments have nothing to do with the quality

of your experience, your intelligence, or anything, but I am concerned that the Administration, instead of going back and getting

us someone who has stood for cleaning the environment, essentially

gives us a nominee—a good person, a good person—with no environmental enforcement record.

Again, I would support Mr. Suarez very enthusiastically for a

number of other posts because I know he did a good job as the Director of the New Jersey Division of Gaming Enforcement. If he

had been appointed to the Department of Justice, that would have

been appropriate. I understand that he was being considered for a

U.S. Attorney position a few months ago. If I was on the Judiciary

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Committee, I would support his nomination for that type of position—even, perhaps, as Deputy Assistant Attorney General overseeing the Department of Justice’s Organized Crime and Racketeering Section. But for the environmental enforcement position at

EPA, I am looking for someone who has experience working with

environmental laws and regulations.

I think we need someone who has a working knowledge of the

intricacies of the Clean Air Act, the Clean Water Act, RCRA,

CERCLA. These are not just acronyms; these are complicated laws,

and I think we need someone with an environmental enforcement

background. Well, let’s look at who held the position before.

Steven Hermann, a career environmental litigation attorney at

the DOJ for 15 years before he was nominated; for the last nine

of those he was Assistant Chief of the General Litigation Section,

Environmental and Natural Resources Division. During this time

he received seven outstanding service awards from the Justice Department, and President Clinton chose him for this position. There

was no question as to why because his environmental record was

comprehensive and compelling.

Now, the Administration sent us a fine person with no experience on the environment. In many ways, Mr. Suarez is in an untenable position. He has responded to the call to serve his country,

and I thank him for that. But he has been asked to enforce environmental laws in an Administration that does not appear to want

them enforced; and furthermore, has ignored Congress’ mandate to

provide the personnel necessary to enforce the laws.

So let me just ask my one question, and then I will save the others for the second round.

When you were the Director of New Jersey’s Division of Gaming

and Enforcement for 3 years, you were responsible for ensuring the

enforcement of one statute, as I understand, the State Casino Control Act.

Mr. SUAREZ. Correct.

Senator BOXER. You had a primary charge of regulating one industry, the casino industry, in one location, Atlantic City, a very

clear and focused position, in which I know you did well.

Now, as Assistant Administrator of OECA, your responsibilities

would be much broader. There are a number of environmental laws

that you would have to oversee. Out of all those laws, which do you

think are the most pressing for you to oversee at this time?

Mr. SUAREZ. Senator, from my first blush in looking at the law,

it seems to me that one of the areas of concern is the quality of

our water and our safe drinking water and going into the Safe

Drinking Water Act, as well. It was identified previously as a national priority, and one of the things that struck me was that the

overwhelming amount of impaired waterways, that are impaired

due to total coliform levels being unacceptably high—and as we all

know, total coliform will result in sickness to people with impaired

immune systems, children, the elderly. I don’t think, Senator, that

anybody should have to worry about the quality of the water when

they turn on the faucet, and it’s those kinds of enforcement actions

and work that I would like to do, to target those areas that can

result in the best result for human health and the environment,

and that’s the kind of work that I would do, working with the very

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experienced staff in the Office of Enforcement and Compliance Assurance.

Senator BOXER. Can I follow up with one more?

Senator JEFFORDS. Certainly.

Senator BOXER. Do you feel the same way about the Clean Air

Act, the Toxic Substances Control Act, the Emergency Planning

and Community Right-to-Know Act, the Resource Conservation Recovery Act, the Oil Pollution Act, the Comprehensive Environmental Response, Compensation, and Liability Act, Superfund, Marine Protection, Research, and Sanctuaries Act, NEPA—do you feel

that these are all important, as well?

Mr. SUAREZ. Indeed, I do. I can’t say that I have a ‘‘favorite

child’’ with any of them yet. I believe they are all important and

they all come together in a very meaningful way to ensure our Nation’s resources.

Senator BOXER. You’re going to have to learn all about those and

you’re going to have to move, because, let me tell you, we’re not

happy with the enforcement that we see. Congress keeps telling the

Administration, ‘‘Here’s the money, hire more people.’’ So I hope

you will be a voice at the table that is going to be strong.

I keep saying it’s my last, but this is absolutely my last question.

You talked about children, and I believe you, and I could see in

your eyes that you mean it. Do you agree with this Administration’s decision to take another look at testing poor children for lead

poisoning and moving away from that regulation?

Mr. SUAREZ. I think that is important to make sure, Senator,

that none of our children are subjected to unacceptably high levels

of lead in their homes and their schools and their water.

Senator BOXER. Thank you, Mr. Chairman.

Senator JEFFORDS. Thank you, Senator.

We have some more that we would like to submit to you in writing, and I would like at this time to say that I feel satisfied, and

I would like to ask you the obligatory questions.

The first one is, are you willing, at the request of any duly constituted committee of the Congress, to appear in front of it as a

witness?

Mr. SUAREZ. Yes, absolutely.

Senator JEFFORDS. Second question. Do you know of any matters

which you may or may not have thus far disclosed which might

place you in any conflict of interest if you are confirmed in this position?

Mr. SUAREZ. I am aware of no such matter.

Senator JEFFORDS. Well, I want to thank you. This will conclude

the hearing, and I——

Senator BOXER. Mr. Chairman, before you do, I have one question.

Senator JEFFORDS. Certainly. You go right ahead.

Senator BOXER. It’s about Superfund. Since I’m the Chair of the

subcommittee that oversees Superfund and my Chairman has

given me a lot of room to study this. Senator Corzine sits on the

subcommittee.

One of the things we’re upset about is that we can’t find out

what this Administration is doing in terms of what sites they’re not

going to clean up at Superfund, and it’s horrible. And in your State

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of New Jersey, people are just beside themselves. And we’re having

a hard time, as the committee, in finding out what sites will not

be cleaned up.

Will you help us get that information?

Mr. SUAREZ. You have my word.

Senator BOXER. Thank you.

Senator JEFFORDS. Well, thank you very much, Mr. Suarez.

Mr. SUAREZ. Thank you, Mr. Chairman

Senator JEFFORDS. This concludes the hearing. We will have a

vote at some time in the near future and hopefully we will be working with you.

Mr. SUAREZ. Thank you. I would look forward to that, Mr. Chairman.

Again, thank you, Senators.

[Whereupon, at 11:35 a.m., the committee was adjourned, to reconvene at the call of the Chair.]

[Additional statements submitted for the record:]

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE STATE OF

CALIFORNIA

Mr. Chairman, thank you for convening today’s nomination hearing. As you know,

finding an experienced and credible individual to fill this particular position—the

Assistant Administrator of the Office of Enforcement and Compliance Assurance

(OECA)—is extremely important to me.

Last August I put a hold on the Administration’s first OECA nominee, Donald

Schregardus. I did so for a number of reasons, all stemming from a great concern

that Mr. Schregardus would do more harm than good to environmental enforcement.

This concern was based on his record as head of the Ohio Environmental Protection

Agency. He had considerable experience, but he—too often—took the side of the polluters, not the people or the environment.

Today, as I look at the Administration’s second nominee to head environmental

enforcement and compliance, I am again concerned. The Administration has

changed its strategy entirely, going from a nominee with a bad environmental enforcement record to a nominee with no environmental enforcement record.

I don’t say that to disparage Mr. Suarez, or to imply that his professional experience—most recently as the Director of the New Jersey Division of Gaming Enforcement—is not interesting or impressive in its own right.

I personally think an appointment to the Department of Justice would be appropriate. I understand he was being considered for a U.S. Attorney position a few

months ago. If I was on the Judiciary Committee, I would support his nomination

for that type of position—or even perhaps as a Deputy Assistant Attorney General,

overseeing the Department of Justice’s Organized Crime and Racketeering Section.

But, for the environmental enforcement position at EPA, I am looking for someone

who has experience working with environmental laws and regulations. We need

someone who has a working knowledge of the intricacies of the Clean Air Act, the

Clean Water Act, RCRA and CERCLA—not just a familiarity with their acronyms.

We need someone who has not just an enforcement background, but an environmental enforcement background.

The last person to hold this position—Steven Herman—was a career environmental litigation attorney at the Department of Justice for 15 years before he was

nominated. For the last nine of those he was Assistant Chief of the General Litigation Section, Environmental and Natural Resources Division. During this time he

received seven outstanding service awards from the Justice Department. When

President Clinton chose him for this position, there was no question as to why. His

environmental record was comprehensive and compelling.

I was hoping the Administration would send us someone with these kinds of

qualifications. From all I can tell, the Administration has sent us a fine person—

and one who is eminently qualified for any number of positions. But he has no experience on the environment.

In a way, Mr. Suarez is in an untenable position. He has responded to the call

to serve his country, but has been asked to enforce environmental laws in an Administration that does not appear to want them enforced and, furthermore, has ignored Congress’s mandate to provide the personnel necessary to enforce the laws.

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Mr. Suarez, I look forward to exploring your environmental record and environmental commitment today.

Thank you again Mr. Chairman for convening this hearing.

STATEMENT OF HON. JON S. CORZINE, U.S. SENATOR FROM THE STATE OF NEW

JERSEY

Thank you, Mr. Chairman. I am pleased to introduce New Jerseyan John Peter

Suarez to the committee. Mr. Suarez has been nominated by President Bush to be

the Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance. I also want to welcome his wife Natalie and their three young children, daughters Chloe and Laina, and their 7-week old son Maxwell.

Mr. Chairman, J.P. Suarez has served with distinction as a public servant in several capacities in New Jersey. He worked as an Assistant U.S. Attorney in Newark.

He later served Governor Whitman as an Assistant Counsel and as a Special Assistant to the Director of the New Jersey Division of Criminal Justice. And most recently, Mr. Suarez served as the Director of New Jersey’s Division of Gaming Enforcement. He has received awards throughout his career, and I believe would bring

a strong enforcement ethic to the EPA.

Mr. Chairman, the laws that EPA implements are designed to protect public

health and the environment. Strong enforcement of these laws is critical to the people of New Jersey. My State has more Superfund sites than any other State. And

we have continuing problems with air and water pollution that impact the health

of New Jerseyans. So the top enforcement position at EPA is a critical one for my

constituents.

I have met with Mr. Suarez, and he has assured me that he will work to vigorously enforce these laws. I take him at his word, Mr. Chairman, and am supporting

his nomination. I look forward to working closely with him to ensure that EPA enforcement is carried out in a way that protects the health of New Jerseyans and

all Americans.

I want to close by congratulating Mr. Suarez on his nomination, and I look forward to the balance of today’s hearing.

STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE STATE OF NEW

HAMPSHIRE

Mr. Chairman, thank you for holding this very important nomination hearing on

Mr. John Peter Suarez, whom the President has nominated to the position of Assistant Administrator for the Office of Enforcement and Compliance Assurance at EPA.

Mr. Suarez is a highly qualified attorney as his extensive resume shows. Mr.

Suarez has held a number of outstanding State positions. He has systematically

been promoted to positions that require a greater level of skill—I believe that this

speaks to his ability to grow into new and more demanding positions.

While his resume documents his consistent success in the jobs that he has held,

I believe that it is also important to make note of his numerous awards:

• N.J. Hispanic Bar Association Honoree

• U.S. Attorney’s Office Public Service Award Recipient

• N.J. State Bar Association Professional Lawyer of the Year Award

• U.S. Attorney’s Office Special Achievement Award

• U.S. Attorney General Director’s Award

Mr. Suarez is also involved in a number of legal societies where he has shown

great leadership—including being selected to the position of Supreme Court Committee Member for the Hispanic National Bar Association.

As we are all aware, the Office of Enforcement and Compliance Assurance works

very closely with EPA Regional Offices, State Governments, and other Federal agencies, to ensure compliance with the nation’s environmental laws.

The Bush Administration is justifiably proud of their environmental enforcement

record, as documented by the following accomplishments in fiscal year 2001:

• On the theory that compliance results in environmental protection, OECA provided compliance assistance for more than one million individuals and businesses.

• The Administration required violators to reduce an estimated 660 million

pounds of pollutants and treat and safely manage an estimated 1.84 billion pounds.

• As a result of enforcement actions, violators will invest $4.3 billion in pollution

control and cleanup measures—the highest-ever such investment.

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• While environmental quality is the most important yardstick to use in measuring success, the Administration completed 222 civil judicial cases and issued 3,228

administrative orders and field citations.

• Criminal prosecutions resulted in prison sentences totaling 256 years—an increase of more than 100 years over FY2000—along with nearly $95 million in fines

and restitution.

• Finally, supplemental environmental projects—actions a violator agrees to undertake to protect the environment and human health—totaled at $89 million—up

60 percent from FY2000.

At this time I would like to submit for inclusion in the record a fact sheet prepared by the EPA office of Enforcement and Compliance Assurance.

I look forward to Mr. Suarez building on this record of success.

The Office of Enforcement and Compliance is charged with developing an approach that integrates compliance assistance, compliance incentives and innovative

civil and criminal enforcement, in order to maximize compliance and reduce threats

to public health and the environment. From my meeting with Mr. Suarez, I am confident that his past legal and management experience, energy, and intelligence will

be an invaluable asset to Gov. Whitman and President Bush in that effort.

Mr. Suarez’s experience as a State official is also beneficial. The individual States

have shown how effective our environmental laws can be when compliance and enforcement occurs at the State level in cooperation with EPA. This cooperation is key

to maintaining the strength of our environmental laws.

I firmly believe that EPA is best suited to a standard-setting and compliance assistance role, with the States handling the bulk of enforcement actions. At the same

time, EPA should maintain the ability to aggressively enforce the law itself when

necessary.

A report compiled by the Environmental Council of States (ECOS) documenting

State enforcement and compliance success makes an interesting point. ECOS states

that:

‘‘ . . . State enforcement actions are very effective in returning violating facilities

to compliance, and . . . their effectiveness increases as the severity increases.’’

The effective delegation of primary compliance and enforcement duties by the

EPA to State agencies has given our environmental laws the strong foundation that

they need. In fact, States conduct about 90 percent of all enforcement actions.

To assist the States in carrying out these duties, EPA must create and maintain

a more effective means of compiling a nationwide enforcement and compliance data

base. We must not lose sight of the ‘‘big picture’’ when it comes to the enforcement

of our environmental laws. EPA oversight of these compliance and enforcement programs is essential.

Mr. Suarez, I appreciate the sacrifice you are making by continuing your career

as a public servant. I have no doubt that you are up to the challenge and look forward to moving your nomination through the Senate.

Thank you, Mr. Chairman.

ENFORCEMENT ACCOMPLISHMENTS FISCAL YEAR 2001

Issue: Is EPA achieving its goals of requiring a high level of compliance by the

regulated community and of reducing the release of pollutants into the environment?

Status/Next Steps: EPA’s enforcement program achieved tremendous success in

fiscal year 2001, protecting human health and the environment through record setting amounts in injunctive relief, significant reductions in pollutant loadings and an

estimated reduction of more than 660 million pounds of harmful pollutants and the

treatment and safe management of an estimated record 1.84 billion pounds of pollutants, in addition to a significant increase in the commitment on the part of violators to spend on supplemental environmental projects:

• Amount spent by violators and liable parties on pollution controls and cleanups

nearly doubled—from $2.6 billion in FY2000 to $4.4 billion in FY2001

• Civil judicial penalties assessed against environmental violators nearly doubled—from $55 million in FY2000 to $102 million in FY2001; civil administrative

penalties levied by EPA were down a modest $1.5 million—from about $25.5 million

in FY2000 $24 million in FY2001. Overall, penalties were way up as our strategy

focused on large judicial cases.

• Number of facilities voluntarily auditing and disclosing violations under EPA’s

audit policy more than tripled—from 437 in FY2000 to 1,754 in FY2001

• Spending by violators on Supplemental Environmental Projects was up 60 percent—from $56 million in FY2000 to $89 million in FY2001

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• Total years for criminal sentences for environmental violations rose from 146

years in FY2001 to 256 years in FY2001 as a result of EPA’s strategy to, as a priority, seek jail time for significant criminal cases. • Criminal fines fell from $122 million in FY2000 to $95 million in FY2001— again, our strategy was to go for jail time

Rationale: By focusing on environmental results or outcomes, such as the reductions in pollution, and by using all of the tools available, such as compliance assistance, incentives, and enforcement, EPA can address the most serious environmental

problems and achieve unprecedented results.

It is significant, for example, that the regulated community achieved an estimated

660 million pound reduction of harmful pollutants that otherwise would have been

released to the environment and safely managed an estimated 1.84 billion pounds

of pollutants. These results reflects EPA’s shift from routine cases to the reduction,

through a variety of incentives, of the most significant environmental risks and significant patterns of noncompliance.

Snapshot: End of Year Results FY1999 to 2001 (as of 2–12–02)

Activity FY 1999 FY 2000 FY 2001

Audit Policy Settlements.106 companies ..........................

624 facilities .............................

217 companies ..........................

437 facilities .............................

304 companies

1754 facilities

Value of Injunctive

Relief.

$3.4 billion ................................ $2.6 billion ................................ $4.3 billion

Civil Judicial Penalties.$141 million .............................. $55 million ................................ $102 million

Civil Administrative

Penalties.

$25.5 million ............................. $25.5 million ............................. $24 million

SEPs ........................ $237 million .............................. $56 million ................................ $89 million

Inspections ............. 22,000 ....................................... 20,000 ....................................... 18,000 (est.)

Administrative Actions.3500 .......................................... 5300 .......................................... 3200

Civil Referrals ......... 403 ............................................ 368 ............................................ 327

Criminal Referrals .. 241 ............................................ 236 ............................................ 256

Criminal Sentences 208 years .................................. 146 years .................................. 256 years

Criminal Fines ........ $62 million ................................ $122 million .............................. $95 million

ENFORCEMENT PROGRAM—CURRENT ACTIVITIES

EPA’s enforcement program remains as strong as ever. Since January 2001, we

have filed and concluded major enforcement and compliance actions to reduce and

eliminate harmful pollution:

• EPA showed record results in fiscal year 2001 from our enforcement activities—nearly doubling the amount spent by violators and liable parties on pollution

controls and cleanups; more than tripling the number of facilities voluntarily auditing and disclosing violations under EPA’s audit policy; almost doubling the civil judicial penalties assessed against environmental violators; and increasing the spending by violators on Supplemental Environmental Projects by 60 percent • EPA’s enforcement activities under the Clean Air Act to address New Source

Review (NSR) violations continue to be vigorous. Beginning with investigations, of

which we have over 100 under way, and concluding with a filed case or settlement,

EPA aims to reduce harmful air pollution caused by refineries, power plants and

other industrial processes, such as paper mills.1 Our current data shows that—between January 2001 and March 2002—EPA made 115 information requests; issued

23 Notices of Violation; filed and settled 15 cases, concluding 7 of them (i.e., they

were entered by the appropriate court); and engaged in numerous other enforcement

activities such as depositions, motion practice and on-going settlement discussions— all to enforce the Clean Air Act’s NSR requirements. • Our NSR enforcement included a major case against a power plant, PSEG,

which alone will reduce the company’s emissions of sulfur dioxide (SO2) by 90 percent and its emissions of nitrogen oxides (NOx) by more than 80 percent. These decreases represent 32 percent of all the SO2 and 20 percent of all the NOx emitted

from stationary sources in New Jersey, and 19 percent of all the SO2 and 5 percent

of all the NOx from all sources in the State, including cars and trucks

• We issued many imminent hazard orders to address immediate threats to

human health an the environment. For example, EPA issued two imminent hazard

orders under RCRA to Magnesium Corporation to address dangerous dioxin levels

at the facility and the threat to workers’ health from extremely high levels of

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hexachlorobenzene in anode dust. EPA also issued two imminent hazard orders

against Seaboard Farms under the Clean Water Act and RCRA to address contaminated drinking water resulting from hog farm waste.

• We also issued an Administrative order (made final on appeal in April 2001)

under RCRA to address imminent threats from the improper storage and disposal

of large volumes of munitions and unexploded ordnance that had been buried at the

Massachusetts Military Reservation (MMR) on Cape Cod. The emergency order required the National Guard Bureau to detonate the munitions in a special ‘‘controlled

demolition chamber’’ that was present at MMR, except for those munitions and ordnance that were unsafe to move (and which could be blown in place).

In other words, EPA has, under Administrator Whitman’s watch, successfully addressed environmental violations using the various tools available, ranging from voluntary incentives to imminent hazard orders. Concluding cases is no small feat, and

we are proud of the accomplishments achieved since January 2001 and will continue

to pursue enforcement in order to achieve similar results in the future.

These activities reflect EPA’s approach to enforcement generally, which includes

the following steps:

• Investigate possible violations by gathering information, e.g., through information requests, citizen complaints, inspections or other reports;

• Review collected information to determine compliance

• Issue ‘‘Notices of Violation’’ or other formal notification to the violator to alert

them to the violations detected and give them an opportunity to correct those violations

• Enter into negotiations with the violator in an attempt to reach an agreed

upon settlement to resolve the violations

• Proceed with formal enforcement by filing a case for litigation if no resolution

of the violations could be achieved.

STATEMENT OF HON. CHRISTOPHER S. BOND, U.S. SENATOR FROM THE STATE OF

MISSOURI

Mr. Chairman, thank you for holding this hearing to consider the nomination of

John Peter Suarez to head EPA’s Office of Enforcement and Compliance Assurance.

The enforcement and compliance office, EPA, and the environment, have gone far

too long without new leadership in this area.

EPA’s enforcement and compliance program is at a cross-roads, between old ways

of doing business and new ways that stress what is best for the environment as the

ultimate test for what action to take.

To their credit, the last administration began the process of modernizing the enforcement program by reorganizing it. That reorganization recognized that there is

more than one way to protect the environment and ensure people meet their environmental obligations.

EPA can improve the environment by assisting people to understand and meet

their obligations. This is especially true for small businesses that want to do the

right thing but can’t wade through EPA’s immense and complicated rules and regulations.

EPA can improve the environment by providing people with incentives to meet

and go beyond their environmental obligations. These incentives are worth their

weight in gold when they fix environmental problems that would otherwise go unknown or unprotected by traditional enforcement techniques.

EPA can also protect the environment with traditional enforcement techniques for

the most harmful malefactors. Polluters who intentionally pollute, or polluters who

refuse to fix their problems deserve strong and stiff punishment.

We understand that the cleaner, cheaper, smarter way to improve the environment, as Administrator Browner used to say, may not be the traditional approach.

So, she combined all of these elements—enforcement, assistance, and incentives—

into a single enforcement and compliance assurance office.

However, the transformation is not yet complete. There are still some that measure commitment to the environment in terms of beans—the number of cases settled,

the number of penalty dollars collected. Unfortunately, these beans often times have

little to do with protecting or improving the environment.

One example came 2 years ago when EPA sent out nearly 600 letters to facilities

that omitted entries for nitrate compounds on their Toxic Release Inventory reporting forms. EPA threatened to assess fines totaling $20,000 per facility for these paperwork violations.

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The problem was, other than these violations having no environmental impact,

EPA found them by targeting firms trying to do the right thing—those actually submitting their forms.

This wasn’t a case of a few bad actors. Eighty percent of filers failed to understand the requirement. Not surprising given that reporting instructions run several

hundred pages. Professional consulting firms paid to know this requirement missed

it. No wonder that half of those on EPA’s hit list were small businesses.

Unfortunately, in the face of no damage to the environment, instead of helping

these people understand their obligations and come into compliance, EPA’s enforcement program went for maximum cases and maximum penalty dollars.

We need to prosecute forcefully those who intentionally harm the environment.

We should deal harshly with those who refuse meet their environmental obligation.

However, EPA needs to target its limited Federal enforcement resources in areas

and ways that do the most good for the environment.

The test should not be how to maximize traditional beans, or cases, or penalty

dollars. EPA is not the IRS. They do not exist to collect money. They are here to

protect the environment. I hope the first question you ask in every case will be:

What is the most efficient, effective way to protect the environment? If you do that,

the environment will benefit from your tenure. Thank you.

STATEMENT OF JOHN PETER SUAREZ, NOMINATED BY THE PRESIDENT TO BE THE ASSISTANT ADMINISTRATOR FOR THE OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. Chairman, members of the committee, I would like to thank you for the opportunity to appear before you today to introduce myself and talk about my nomination for the position of Assistant Administrator for the Office of Enforcement and

Compliance Assurance (OECA) at the Environmental Protection Agency (EPA). With

me today are my wife, Natalie, and our three children, Chloe, who is 4 years old,

Laina, who is almost 2, and Maxwell, who is all of 7 weeks old. Also, please accept

my apologies if any or all of them have to leave during this hearing.

First, I must thank President Bush for his trust and confidence in nominating me

to head the Office of Enforcement and Compliance Assurance. I must also thank

Governor Whitman, for whom I have had the pleasure of working previously and

look forward to doing so again. I believe that the Nation’s environmental laws are

critically important to every American, and I hope to have the opportunity to enforce those laws to help ensure that all of us, especially our children, can enjoy

cleaner air, purer water, and better protected land for years to come.

I believe that my background and experience have prepared me well for this challenging position, and I would like to take a few moments to describe that for you.

My interest in working in the public sector and serving the public interest is deeprooted, and comes in large part from the values instilled in me by my parents. My

father, whose family hails from Spain, and my mother, who was born and raised

in Nicaragua, believed that public service was a noble calling, and encouraged all

of their children to consider careers in government or in service to others. My brother went to the Air Force Academy and now serves as a Lt. Colonel in the Air Force

assigned to the Pentagon, while my oldest sister has nearly completed her doctoral

thesis and hopes to provide counseling and therapy to minority adolescents. My

other sister is a lawyer who works for her husband’s company. All of my siblings

are successes in my eyes, and I admire each of them.

When I went to law school at the University of Pennsylvania, I knew from the

moment I entered that I was interested in pursuing a career as a prosecutor. After

I graduated from law school, I clerked for a Federal judge and then applied to the

U.S. Attorney’s Office, knowing that this was where I wanted to start my career.

I was, fortunately, accepted by the District of New Jersey, and began to develop as

a lawyer in a terrific prosecutor’s office.

While at the U.S. Attorney’s Office I learned many skills that I believe are essential for a chief law enforcement officer. I learned how to try cases, how to manage

investigations, and how to be a tough but fair prosecutor. I also saw first hand the

tremendous impact that enforcement can have on the lives of those affected. I was

fortunate to be able to try some difficult and exciting cases, and as a result of one

of those cases, the successful prosecution of an Atlantic City street gang, I was

awarded the U.S. Attorney General Director’s Award. I was fortunate that I did not

lose any of the cases that I tried, and to me that is a testament to the quality of

the agents and supervisors with whom I had the pleasure of working.

If I am confirmed for this position, I believe that the lessons learned while in the

U.S. Attorney’s Office have equipped me well to understand the challenges facing

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agents, inspectors, and legal staff who work the front lines in environmental enforcement actions.

After I left the U.S. Attorney’s Office, I went to the State of New Jersey’s Division

of Criminal Justice, where I was the Special Assistant to the Director of a 600-person statewide law enforcement agency. It was there that I began to learn how to

manage attorneys and investigators, and how to maintain constructive relationships

with colleagues in other State agencies, Federal agencies, and the local law enforcement community. I worked with the Director to shape policy for the Division of

Criminal Justice, and helped launch a number of statewide initiatives addressing

long-entrenched problems plaguing New Jersey’s communities. Through this experience, I learned the valuable lesson of working cooperatively across organizational

lines and with different agencies to achieve the best results for law enforcement programs.

Governor Whitman then asked me to join the staff of her Counsel’s Office, where

I provided advice to the Chief Counsel and the Governor on criminal justice matters.

It was while working in that capacity that Governor Whitman nominated me to be

the Director of the Division of Gaming Enforcement, the State law enforcement

agency charged with enforcing the laws and regulations related to the casino industry.

As the head of the Division of Gaming Enforcement, I oversaw a staff of 400 employees charged with ensuring the good character and integrity of the people and

businesses who worked in the industry. The Division was comprised of several units,

including a criminal enforcement section, a civil regulatory prosecutions unit, an

audit function, and a technical services unit that dealt with the highly sophisticated

computer software and hardware of the gaming industry. As the Director, I was able

to lead the professionals from the Division in shaping policy and enforcing statutes

and regulations, in either the criminal or civil context, and also to set the agency’s enforcement priorities. I led the Division in the context of its licensing work, and

crafted appropriate enforcement responses for various degrees of statutory violations

in both civil and criminal matters.

My experience as the Director of the Division of Gaming Enforcement, provided

me the opportunity to use the skills I had developed as a lawyer with an enforcement background in evaluating and analyzing the appropriate action to take against

a regulated entity in order to achieve the best result. In leading a large law enforcement agency, with both civil and criminal responsibilities over a highly regulated

industry, I developed management skills that will serve me well if I am confirmed

as Assistant Administrator for the Office of Enforcement and Compliance Assurance. As is reflected in the summary of my professional career, I have been involved

in criminal or regulatory enforcement at both the Federal and State level for over

10 years. My experience working in very active enforcement offices has instilled a

set of core principles that come with being in charge of a government enforcement

office. These core principles include:

First is fairness, for I believe that it is incumbent upon a law enforcement official

to use the tremendous resources available in a fundamentally fair way, lest the entire process lose sight of the impact that it can have on individuals and communities.

I also believe that as a law enforcement official, you can often times achieve better

results by trying to work cooperatively with those who many would call your adversaries. Indeed, in my experience in the Division of Gaming Enforcement, I found

that on many issues, even though the industry may have disagreed with a decision

that was reached, the process of soliciting industry input and enlisting their counsel

worked to ensure a strong cooperative relationship between the regulator and the

regulated. I also believe that flexibility is a critical component to a cooperative approach, because with flexibility you can often times achieve the desired result quickly and with less cost.

As a necessary corollary to a cooperative and flexible approach, however, is the

willingness to pursue appropriate enforcement actions against those entities who

are either unwilling or unable to conform their conduct to what is required. In the

proverbial ‘‘carrot and stick’’ model, I believe that a good enforcement official has

the stick and is not afraid to use it.

Finally, a good enforcement official must have faith in the system; faith in the

legislative process, which produces the laws that we must enforce; and faith in the

legal system, which is the forum that we must turn to when controversies and cases

need to be settled. My experience has taught me that the system works, and it is

a system that I have enjoyed being a part of throughout my legal career.

My experience, my commitment to public service, and my fundamental belief that

our environmental laws provide the best guarantee that our Nation’s natural reVerDate 11-MAY-2000 11:43 Jul 22, 2003 Jkt 000000 PO 00000 Frm 00074 Fmt 6601 Sfmt 6621 81722 SENENV1 PsN: SENENV1
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sources will be protected, will allow me to lead the Office of Enforcement and Compliance Assurance. I can provide strong leadership, and can bring to the Office those

core beliefs that I think are the mark of a good enforcement official. I expect to rely

fully upon the experience and expertise of the very accomplished and dedicated staff

of career employees in the Office of Enforcement and Compliance Assurance. I have

met many of these dedicated staff and I am confident in their ability to assist me

in the day-to-day management challenges and policy issues that may arise.

I would like to assure all of the members of this committee, the President and

Governor Whitman, that if confirmed I will apply myself with the same vigor and

energy that have marked my career to date, and that I will work as long and as

hard as necessary to ensure that our Nation’s environmental laws are being enforced as intended by Congress firmly and fairly.

At the end of the day, I will do everything in my power to live up to the promise

that I have made to my three children, that this planet of ours will be a good and

safe place to live. I will dedicate myself to a comprehensive enforcement program

that will safeguard our water, our air and all of our Nation’s precious natural resources.

I believe that enforcement must be a vigorous and active component of the EPA’s

efforts to protect our natural resources, and I would very much appreciate the opportunity to apply my experience and my desire to enforce the important environmental laws that this Congress has put in place.

I thank you for your patience this morning, and I am pleased to have this opportunity to answer any questions that you may have.

RESPONSES OF JOHN PETER SUAREZ TO ADDITIONAL QUESTIONS FROM SENATOR

JEFFORDS

Question 1. EPA Regional Offices are reportedly cutting enforcement office personnel in order to meet staffing reductions that the Bush Administration had originally proposed to implement by attrition in the agency’s fiscal year 2002 budget request. What is the current staff of the total enforcement office?

Response. It is my understanding that EPA Regional offices continue to manage

their enforcement positions in a manner consistent with the Agency’s fiscal year 02.

budget as passed by Congress last Fall. Indeed, a current analysis shows projected

Regional FTE utilization in enforcement is on target to meet the authorized level

of 2,516.6 FTE. Projected FTE utilization for Headquarters and field (non Regional)

components is currently 848.2 FM for a total end of year enforcement FTE projection of 3,366.7 (2,518.5 + 848.2),

Question 2. Will you support further reductions in EPA enforcement personnel

through attrition?

Response. If confirmed, I intend to examine closely the resources and staffing levels and the allocation of those resources and staff to ensure that OECA is directing

its resources to those areas where the most significant public health and environmental problems exist. If there is an identified need for more staff or resources, then

I would represent and advocate for the Office’s interests during the budget process,

to ensure that adequate resources are being devoted to the mission of enforcement

and compliance.

Question 3. Do you think that the Enforcement division is currently overstaffed

and whether such moves are warranted?

Response. I have not yet had the opportunity to analyze the staffing needs of

OECA, but intend to do so if confirmed. I believe that a careful examination of how

resources are allocated would be helpful in evaluating whether our staffing needs

are being adequately met, and I will endeavor to undertake such an analysis if confirmed. I am aware that the breadth of work required of OECA staff is expansive,

and necessarily requires a sizable staff to perform effectively the mission of enforcement and compliance.

Question 4. If confirmed, will you pledge to keep this committee appraised, in a

timely fashion, of EPA enforcement staffing levels, enforcement staff vacancies, and

the exact number of completed civil and criminal investigations and inspections?

Response. Yes. I will also work with the committee to ensure that information regarding completed investigations and inspections is accompanied by adequate explanations, so that an accurate picture of OECA’s work is provided. Moreover, I will

also provide the committee with information relating to other performance measures, such as environmental impacts and pollution reductions achieved, so that the

committee has a broad view of the accomplishments of the Office.

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Question 5. I have seen reports saying that regional enforcement staff are being

asked to focus more on compliance assistance than on traditional enforcement.

Please discuss your views on EPA compliance assistance activities.

Response. I believe that compliance assistance, especially in the context of small

businesses, is an integral part of the mission of OECA. Compliance assistance can

often times bring more entities into compliance quicker by providing the entities

with the information and assistance they need to conform their operations to what

is requited by law. I also believe that a good compliance assistance program should

be integrated into the core of the Office’s work, so that it is available to be used

when appropriate. However, I also believe that there are many instances where traditional enforcement actions, in either the criminal or civil context, are the appropriate first course of action and should be pursued notwithstanding the existence

of a compliance assistance program. I therefore believe that a combination of compliance and enforcement efforts, in the proper balance, can achieve the best environmental results.

RESPONSES OF JOHN PETER SUAREZ TO ADDITIONAL QUESTIONS FROM SENATOR

SMITH

Question 1. Does the anticipated retirement of a large number of upper and midlevel EPA staff extend to OECA? If so, what steps would you recommend taking to

fill those positions in order to avoid a negative impact on compliance and enforcement?

Response. I am not aware of an anticipated ;departure of upper and mid-level

staff in OECA in the immediate future. However, in order to assist with management challenges, the Agency recently began an ’Senior Executive Service mobility’’

program whereby senior managers were given the opportunity to move to new and

challenging positions within EPA. The result of this mobility program is that several

senior staff have been assigned to various offices within the Agency, providing new

leadership to the. offices. Within OECA, a new Deputy Assistant Administrator was

named to the staff, along with a new office director for the Office of Regulatory Enforcement and a new Associate Assistant Administrator. All of these positions were

filled by people with extensive experience in environmental law, and I expect that

they will provide significant stability and leadership to OECA.

Question 2. Mr. Suarez, what kind of skills could you bring to the position of Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance

from your previous positions in public service?

Response. My professional background and experience is in enforcement work, in

either the criminal or civil context, and I have been involved in prosecuting cases

for my entire legal career. My skills include an ability to analyze the strengths and

weaknesses of cases and thereby develop sound strategies on how to pursue an action, and also the ability to guide investigations so that whatever evidence is available is identified and developed properly—I also have a firm grasp on the challenges

confronted when negotiating settlements or resolutions of cases, and believe that

this skill will serve me well if confirmed. I also attempt to utilize a proactive approach to addressing problems or potential problems, so that the agencies I have

been leading are able to take action before an issue escalates. In my previous experiences, I have also learned to work with diverse stakeholders, including industry,

licensees, law enforcement, attorneys, and advocacy groups when developing or implementing programs. Finally, I believe my strong work ethic and proven ability to

lead a large organization with an enforcement mission will help strengthen OECA.

Question 3. Mr. Suarez, why do you think you are qualified to head the Office of

Enforcement and Compliance Assurance?

Response. My extensive background in enforcement programs with civil and criminal responsibilities, my successful management of large enforcement agencies, and

my firm belief in the importance of our nation’s environmental laws provide me with

the experience and perspective that is necessary to head OECA.

Question 4. Please explain to this committee your experience in providing management to large organizations.

Response. My first experience in coordinating a law enforcement program came

when I was in. the U.S. Attorney’s Office and was named to serve *as the liaison

to the Camden/Philadelphia High Intensity Drug Trafficking Area (HIDTA) Task

Force. As the liaison for the U.S. Attorney’s Office, I served to coordinate the program with our State and regional partners to ensure that our interests were preserved and that resources and priorities relevant to the Camden area were addressed by the Task Force, I then became the Special Assistant to the Director for

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the Division of Criminal justice, the statewide law enforcement agency in New Jersey. As the Special Assistant, I served as the director’s principal assistant and

helped him establish and enforce policies for a 600-person agency, including the

identification of statewide enforcement priorities. I also coordinated enforcement activities with the 21 county prosecutors’ offices and with the Federal and local law

enforcement agencies.

Thereafter, I served as the Director of the Division of Gaming Enforcement, the

State law enforcement agency charged with enforcing the laws relating to the casino

industry—in New Jersey. As the Director, I led a 400-person law enforcement agency that included criminal investigators, prosecutors, civil investigators, auditors, attorneys, accountants, computer specialists, and other professionals. As the Director,

I established our enforcement priorities, led the Division in licensing matters, and

guided numerous criminal and civil investigations. I also reviewed and approved all

significant settlements with the regulated entities to ensure that the settlements

were consistent with the Division’s enforcement philosophy—Finally, I was responsible for proposing changes to the regulatory or legislative process that I felt were

necessary to improve the Division’s operations and to ensure that the integrity of

the licensees and the industry was never compromised.

Question 5. What is your enforcement philosophy?

Response. I believe that first and foremost, a good enforcement official must be

fair. Fairness must extend to all of the participants and stakeholders in the process,

so that no side or perspective is excluded. Second, I believe that a good enforcement

official must be willing to engage in a cooperative approach to achieving the results

desired, and should always try to find areas where common interests merge. I also

believe that flexibility is a critical component of a cooperative approach, and often

times allows for solutions to problems or concerns quickly and efficiently. Third, I

believe that a good enforcement official is not hesitant to take aggressive enforcement actions where appropriate. Indeed, I believe that a willingness and proven

ability to pursue enforcement actions will serve as a deterrent to others and will

serve to bring entities into compliance. Finally, I believe that enforcement officials

must have faith in the laws and faith in the process for-enforcing them. I believe

good enforcement ’officials should be willing to express their views when shaping

policy decisions, but must also enforce the policy decisions that are reached, firmly

and fairly.

Question 6. What do you think will be some of the challenges facing you as the

Assistant Administrator for the Office of Enforcement and Compliance Assurance?

How do you plan to address these challenges?

Response. One of the significant challenges facing OECA in the immediate future

will be in identifying and setting national priorities. In order to utilize the resources

of the Office most effectively, those national priorities that have the most significant

impact on public health and the environment must be identified, and a commitment

must then be made to use OECA’s resources to pursue those areas. If confirmed,

I expect to work very closely with the ten Regions and the States to help identify

possible national priorities for OF-CA and to then put in a place a plan for addressing and targeting the national priorities. Another challenge facing the Office is in

the consistency of Enforcement actions throughout the Nation. I anticipate working

with the Regional Administrators and regional enforcement coordinators to ensure

that there is consistency in the enforcement work throughout the Nation. I also believe that there are more opportunities to provide better compliance assistance to

certain sectors, especially certain sectors with large percentages of small businesses,

and I will work with the Office of Compliance to identify those sectors and to coordinate compliance assistance efforts. Finally, I believe a significant challenge will be

in the area of Superfund management, and if confirmed I will work closely with the

Office of Site Remediation Enforcement and the Office of Solid Waste and Emergency Response to ensure that potentially responsible parties are being identified

and pursued for cost recovery actions, and that as many National Priorities List

sites are cleaned as is possible.

Question 7. What kind of support will you put in place to help your transition into

this new position?

Response. Within the immediate office of the Assistant Administrator, there is a

Principal Deputy Assistant Administrator and a Deputy Assistant Administrator,

along with an Associate Assistant Administrator, all of whom have extensive experience with environmental laws and enforcement. All of the office directors of the constituent parts of OECA are also located in Headquarters, and together this staff will

provide me with an incredible amount of experience and expertise in environmental

enforcement. If confirmed, I intend to work very closely with all of the senior management and staff in OECA, and to call upon them for their advise and counsel on

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all important issues. I will work with my staff experts, other Assistant Administrators, and Office of General Counsel to ensure that I have the necessary information

in order to make informed decisions.

Question 8. You mentioned in your statement that you prosecuted cases at the Division of Gaming Enforcement. Please explain the outcome of these prosecutions.

Response. During my tenure as the Director, the Division prosecuted hundreds,

if not thousands, of enforcement cases against some of the more than 50,000 licensees in the industry. The enforcement cases ranged from minor infractions of regulations to significant violations that resulted in the revocation of an entity’s or individual’s license to do business. I personally prosecuted several high profile cases, including a case against Park Place Entertainment (formerly Bally’s) for improperly

engaging the services of a public official in Florida and then paying him to do little

or no work. The results of that case were that Park Place was required to agree

to extensive monitoring and reporting of its operations to the Division, and was also

required to implement an extensive compliance program. Another noteworthy case

that I personally prosecuted involved the President of Caesar’s Atlantic City Casino.

In that case, the President of Caesar s engaged in a pattern of misconduct and deceit, including misrepresenting certain facts to the Division and withholding information, that led the Division to seek revocation of his license. As a result of that

prosecution, the President’s license was revoked, and he was barred from working

in the casino industry in any capacity for 5 years.

Question 9. How do you measure success of your organization?

Response. I believe that success should be measured by outcomes, and not purely

by numbers or statistics. For OECA, I believe its success can and should be measured by the benefit of the outcomes it has achieved, and by the improvement in public health and the environment that is achieved through its enforcement work. Identifying the number of cases pursued or investigations completed can be a helpful

guide in measuring success, but the measure should also include other variables

such as scope of the work and impact on our environment.

RESPONSES OF JOHN PETER SUAREZ TO ADDITIONAL QUESTIONS FROM SENATOR

CORZINE

TITLE VI: STATUS REPORT IN RESOLVING BACKLOG OF COMPLAINTS

Question. What is the current status of EPA’s efforts to resolve the backlog of

compliance that have been filed under Title VI of the Civil Rights Act and to ask

you for a status. report on their resolution.

Response. Administrator Christine Todd Whitman announced the formation of the

Title VI Task Force in May 2001. The Task Force was-charged with resolving the

backlog of administrative complaints filed with EPA alleging violations of Title VI

of the Civil Rights Act of 1964 and EPA’s Title VI regulations.

When Administrator Whitman announced the creation of the Title VI Task Force

in May 2001, the Title VI complaint backlog consisted of 66 open Title VI complaints. Twenty-one of those complaints had been accepted for investigation. Fortyfive complaints were still ‘‘under review,’’ meaning that EPA hid not yet made a jurisdictional determination whether to accept them for investigation, reject them, or

refer them to another agency for appropriate action.

As of May 7, 2002, EPA has made jurisdictional determinations on all ‘‘under review’’ complaints, with the exception of five complaints which are held in suspension

pending the outcome of parallel related litigation. The complaint backlog assigned

to the task force has currently been reduced to 38, several of which are very close

to resolution. Below is a summary status report:

Current Status of Title VI Cases (66 cases filed)

Resolved after investigation initiated ....................................... 2

Rejected ...................................................................................... 20

Withdrawn .................................................................................. 6

Referred ...................................................................................... 1

Currently under investigation .................................................... 27

Suspended for pending litigation .............................................. 5

Held for informal resolution or ADR .......................................... 5

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RESPONSES OF JOHN P. SUAREZ TO ADDITIONAL QUESTIONS FROM SENATOR WYDEN

Question 1. In your testimony you stated that you believe in the polluter pays

principle. Since the current Administration has taken the position on Superfund— EPA’s most costly program—that the tax on industries responsible for environmental contamination should not be re-instituted, the burden for the nation’s toxic

cleanup will fall, not on the polluter, but on taxpayers. How do you plan to reconcile

your belief in the polluter pays principle with the Administration’s view?

Response. I am firmly committed to the polluter pays principle. It is my understanding that although the tax on industries has expired, EPA has continued to pursue potentially responsible parties (PRPs) to contribute to clean up costs at sites

identified on the National Priorities List. I plan to continue EPA’s success in maximizing the participation of responsible parties at Superfund sites. As is reflected on

the accompanying charts, OECA continues to work to identify and pursue PRPs, and

its work has ensured that in over 70 percent of the long-term Superfund cleanups

, PRPs have borne the cost of that cleanup. Since the inception of Superfund, responsible parties have committed more than $20 billion to clean up or to reimbursing EPA’s costs. My understanding is that in only those instances where there is

no identifiable PRP or where the PRP is not able to pay for site cleanup, then moneys from the Superfund Trust Fund will be used to take remedial action. If confirmed, I will ensure that OECA continues to aggressively pursue PRPs and cost recovery actions against those entities, while applying the guidelines of EPA’s Administrative Reforms, to ensure that as many sites as possible are being cleaned or remediated by the polluters themselves in a fair manner. EPA’s enforcement program

has been successful in making the polluter pay, and I will make every effort to continue these impressive accomplishments.

Question 2. When we met in my office and again in your written testimony, you

spoke of the expertise of the EPA enforcement staff and how you will rely on that

expertise to help you enforce the nation’s complex environmental laws. Generally,

individuals come to an executive position with years of experience upon which they

base high-level decisions, but given your inexperience with environmental law, when

faced with a difficult choice, on what will you base your decision when the advice

of your staff conflicts with that of equally forceful industry advocates?

Response. As is reflected in my resume, my background includes many years of

experience in executive enforcement decisionmaking roles, including as the Director

of a statewide law enforcement agency in which I was responsible for making policy

decisions affecting significant interests. To the extent that an issue arises in which

there are competing views between EPA staff and industry advocates, I will attempt

to gather and analyze as much information as possible from all of the stakeholders

in an issue, and then make an informed decision that is based upon that information and analysis. The most significant factors in such an analysis will be the relevant Federal law coupled with an evaluation of the environmental and human

health impact as a result of the decision to be made.

Question 3. The Public Employees for Environmental Responsibility (PEER) distributed a data package to the Senate detailing your record of prosecutions in New

Jersey. This information suggests that you have been involved in only a small number of criminal prosecutions, many of which the State lost. It is my understanding

that when you met with the Senate staff on May 6, 2002, you stated that you believe this information to be false and that it misrepresents your record. After investigating PEER’s data my staff learned this information originated with Transactional Records Access Clearinghouse, an organization which receives data directly

from the offices of the U.S. Attorney’s General, and that has a proven reputation

for reporting accuracy. Would you explain this discrepancy and please provide the

committee with documents which verify your assertions regarding your record of

prosecutions?

Response. I am not familiar with the Transactional Records Access Clearinghouse,

nor am I familiar with what other sources PEER relied upon when gathering their

data, so I cannot comment on those sources or their reliability. However, several

major discrepancies between what is reported and what is accurate are apparent.

What is clear is that my record as an Assistant U.S. Attorney, as the Special Assistant to the Director of the Division of Criminal Justice, and as the Director of the

Division of Gaming Enforcement is marked by productivity and effective and aggressive enforcement. For example, as is reflected in the letter of endorsement received

from Michael Guadagno, Chief of the Fraud and Public Protection Division of the

U.S. Attorney’s Office in New Jersey and one of my former supervisors, I was one

of the most productive members of the Office and I never lost a case that I tried.

I received the U.S. Attorney General’s Directors Award from Attorney General Janet

Reno for the successful prosecution of the Abdullah’s, an Atlantic City street gang.

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As is reflected in my performance evaluations, copies of which are attached, I consistently received the highest possible rating for AUSA’s in the U.S. Attorneys Office, and my supervisors comments reflect that my productivity and performance

was among the best in the office. I received the New Jersey State Bar Association

Professional Lawyer of the Year Award for 1999, which speaks to my integrity and

professionalism as recognized by the State Bar, and was honored by the New Jersey

Hispanic Bar Association for my leadership and success in the legal community. I

was the lead prosecutor in several other high profile cases, including the successful

prosecution of the former President of the Camden City Board of Education (US v.

Bey) for her theft of honest services from the city of Camden, and the successful

prosecution of the clerk to the Supreme Court of New York for tax evasion (US v.

Rakov). My record in New Jersey reflects in many ways my views of effective enforcement, in that a good enforcement official must be willing and able to use the

tools available, such as criminal prosecution, to ensure that people and entities are

complying with their legal obligations.

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SUMMARY OF TRIALS PROSECUTED BY JOHN PETER SUAREZ

Assistant U.S. Attorney in the District of New Jersey, September 1992-January 1998

1. United States v. Rita Fabiani and William Richman; Spring 1997; before Hon.

Mary Little Cooper. A husband-and-wife bank fraud, wire fraud, and money laundering case arising out of the investigation into a multi-million dollar Ponzi scheme

operated by Fabiani and Richman. Defendants would entice investors to purchase

foreclosed properties to be immediately resold for a substantial profit. Defendants

used all proceeds to maintain a lavish lifestyle and stole over 8 million from investors. Defendant Richman proceeded to trial (wife was found incompetent due to

head injury suffered after indictment). First trial resulted in a hung jury. Second

trial began about 3 weeks after the first, and resulted in a guilty verdict. Defendant

Richman sentenced to approximately 70 months imprisonment.

2. United States v. Anthony Iezzi; Spring/summer 1996; before Hon. Joseph H.

Rodriguez. A bank fraud case arising from the investigation I led in the Fabiani/

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Richman Ponzi scheme case (see item below). Defendant found guilty and sentenced

to prison.

3. United States v. Robert ‘‘Hanif Abdullah’’ Simpson, et al.; Winter 1996; before

Judge William Bassler. A 22-defendant drug conspiracy and distribution case, along

with RICO charges for attempted murder, against an Atlantic City street gang operating out of the Resort Courts housing projects. These 22 defendants, along with 2– 3 others, were known as the ‘‘Abdullahs’’ and were selling heroin and cocaine in the

projects for years. Myself and another AUSA (Jeremy Frey) conducted a 6-month

wiretap of various telephones used by the defendants, then indicted them. Trial

began in January 1996 with six defendants proceeding to trial, and during the

course of 2 months of trial, every defendant eventually pleaded guilty. Lead defendant received a sentenced of 188 months imprisonment, with all the others sentenced

to prison terms (except for the wife and girlfriend). NOTE: I received the Attorney

General Director’s Award from Janet Reno for this successful prosecution, received

a letter of commendation from Director Louis Freeh of the FBI, and received an honorary resolution from the Atlantic City Council thanking us for the efforts in conjunction with this prosecution.

4. United States v. Harris Rakov; Winter 1995 (?); before Judge Alfred J. Lechner.

A tax fraud case against the clerk of the New York court system for filing false tax

returns in which he failed to declare as income interest that he received on loans

that he had given to friends and colleagues. Defendant found guilty.

5. United States v. Rodolfo Bethancourt, et al.; Summer 1994; before Judge Garrett E. Brown. A multi-defendant drug importation conspiracy case, in which the defendants agreed to ship cocaine through McGuire Air Force Base. Defendant

Bethancourt went to trial, and was found guilty and sentenced to at least 10 years.

6. United States v. Vincent and Susan Maglione; May 1994; before Judge Joseph

H. Irenas. A husband-and-wife tax protestor tax fraud case, in which the defendants

would send fictitious tax liens to people and attempt to collect through the IRS/tax

returns. Both went to trial, he before the judge, she before a jury. Both found guilty.

Husband sentenced to jail, wife sentenced to probation over the objection of the Government.

7. United States v. (M/V Targa case); 1993; before Judge H. Lee Sarokin. A multidefendant drug importation conspiracy case. Defendants were crewmembers of the

M/V Targa who transported large quantities of cocaine from Central America to the

Port of Newark for sale. At least one defendant (a Philipino crew member) went to

trial, and was found guilty. Sentenced to at least 10 years imprisonment.

8. United States v. Sassman; November 1993; before Judge Jerome B. Simandle.

A theft of interstate commerce conspiracy. Multi-defendant case, with one defendant

going to trial and found guilty and sentenced to prison.

9. United States v. ; summer/fall 1993; before Judge Dickinson Debevoise. A drug

distribution case arising from the Trenton Weed & Seed program. Defendant found

guilty and sentenced to prison.1

10. United States v. Fahim Sabir, et al.Spring of 1993 (with Patty Shwartz), before Judge Dickinson Debevoise. Multi-defendant drug distribution conspiracy case.

Both defendants that went to trial were found guilty. Nadeem Sheikh sentenced to

72 months; Jang Baz Kahn sentenced to 72 months.

The above summary reflects 11 trials (one was a retrial due to a hung jury), all

of which, including the case with the hung jury, resulted in the defendants who

went to trial being found guilty. No defendant was ever acquitted in a trial I prosecuted.

A couple of other noteworthy prosecutions: I was the prosecutor who investigated

the allegations of fraud and abuse in the Camden School Board. As a result of our

investigation, the President of the School Board, Elaine Bey, pleaded guilty to theft

of honest services, and was sentenced to prision. (United States v. Elaine Bey). I

also began the investigation into allegations of corruption by former Mayor of Camden Arnold Webster. While I was working on the case, we put many witnesses in

the grand jury and learned that Mayor Webster had embezzled funds from Camden

by continuing to receive his salary as School Superintendent while serving as

Mayor. We also learned that Mayor Webster had collected vacation and sick leave

for which he was not entitled. The case was resolved after I left the office by way

of plea to tax charges.

I also investigated and prosecuted the theft of client funds by an accountant

(United States v. Dudnick), which resulted in a guilty plea and prison sentence for

the defendant; the theft of funds by a bank manager from the Farmers & Merchants

Bank (United States v. Lapsins); and I began the investigation into campaign finance violations by business executives during the 1996 Presidential election. While

assigned to the Trenton office, I prosecuted several significant weed and seed cases,

including United States v. Ernest Wilkerson, a career offender and public employee

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from the city of Trenton who was selling crack cocaine, and United States v. Salim

Davis, in which the defendant was convicted after he sold both a firearm and drugs

to undercover agents. In addition to these cases, while in the Frauds and Public

Protection Division, I prosecuted United States v. Michele Carnevale et al., a case

involving the interstate shipment of child pornography. In this case, the search of

the defendants house discovered a substantial amount of child pornography and

other obscene material, and resulted in both defendants pleading guilty.

In addition to the Attorney General Director’s Award, the U.S. Attorney for the

District of New Jersey awarded me a Special Achievement Award for my efforts in

the office. I was also honored by the N.J. State Bar Association as one of their Professional Lawyers of the Year for 1999, and was also a Hispanic Bar Association

Honoree for my work in the legal community and my leadership in the Hispanic

community.Excerpts of Performance Evaluations for

JOB PERFORMANCE EVALUATIONS WHILE AN ASSISTANT U.S. ATTORNEY

While serving as an Assistant U.S. Attorney in the District of New Jersey, I received 4 yearly performance evaluations. The following summarized the results of

those evaluations:

1. Jan. 1993-Dec. 1993—Rated Excellent (2d highest possible rating); comments

from my evaluation include such observations as Mr. Suarez ‘‘is well on his way to

becoming a truly outstanding Assistant U.S. Attorney . . .’’, and that he ‘‘is a very

gifted trial lawyer . . . and is one of our best young trial lawyers.’’

2. Jan. 1994-Dec. 1994—Rated Outstanding (Highest possible rating); comments

include ‘‘Mr. Suarez consistently enhances the mission of the Office with respect to

the development and prosecution of cases . . . displaying virtually without exception, habits of productivity and dependability which ensure that all assigned cases

are processed efficiently and expeditiously with a minimum of supervisory resources,

[and] regularly seeks more challenging case assignments . . .’’

3. Jan. 1995—Dec. 1995—Rated Outstanding (Highest possible rating); comments

include ‘‘Mr. Suarez has effectively and enthusiastically handled a challenging caseload. He is an extremely efficient and hard worker . . .’’ and that ‘‘Mr. Suarez has

demonstrated outstanding judgment in determining which cases should be prosecuted and which cases should be declined.’’

4. Jan. 1996—Dec. 1996—Rated Substantially Exceeds Expectations (Highest possible rating); comments include that Mr. Suarez ‘‘enthusiastically takes on additional work and continues to be a favorite of agents who want cases ’moved.’ Without question, Mr. Suarez has substantially exceeded this office’s expectations for

overall productivity.’’

RESPONSES OF JOHN PETER SUAREZ TO ADDITIONAL QUESTIONS FROM SENATOR

BOXER

Question 1. Last year’s VA-HUD Appropriations Conference Report (FY02) directs

the Administration to restore enforcement positions to their FY01 Operating Plan

levels. The fiscal year 01 Operating Plan as enacted provided for 3,536.8 FTEs in

Federal enforcement. Headquarters is allocated 895.5 positions and the Regions are

allocated 2,641.3 positions.

You indicated in a response to a question from Senator Jeffords after your confirmation hearing on enforcement staffing that total end of year FTEs in enforcement are currently projected to be 3,366.7 This represents a staffing shortfall of 170

positions in enforcement nationwide compared to FY01 Operating Plan levels. You

also state in your answer to Senator Jeffords question that the Regions ‘‘continue

to manage their enforcement positions in a manner consistent with the Agency’s

FY02 budget as passed by Congress’’ and that they are on target to reach 2, 516.6

FTE’s in the Region. This number is approximately 125 positions short of fiscal year

01 Operating Plan levels. The shortfall for Headquarters and Non-Regional Offices

is 47 positions.

Your response fails to take into account the 170 positions nationwide that you

have indicated are not targeted for restoration at any time this year as directed by

Congress.

Question 1(a).Please explain your understanding of EPA’s plans to ensure that enforcement positions are restored to fiscal year 01 Operating Plan levels as provided

for in the VA-HUD Conference Report.

Response. The Agency restored 145 workyears to the enforcement program consistent with funding provided by Congress in the Agency’s fiscal year 02 funding

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bill. In that bill, Congress restored $15.0 million to the enforcement program, of

which the Agency allocated approximately $14.2 million to payroll and the remaining $800,000 to personnel related, non-payroll costs (such as training, supplies, and

so forth). When added to base salary funds, the restoration provided a total enforcement salary budget of $328.2 million, sufficient to support the proposed FTE ceiling

of 3,406.8 FTE at an average cost of roughly $96,300 per FTE. Although the Agency applied the entire $15.0 million from the fiscal year 02 appropriations bill to fund enforcement FTEs, the enacted amount was not sufficient

to fund enforcement FTE at the fiscal year 01 enacted ceiling level.

Question 1(b). Please indicate what efforts have been undertaken to date to restore these positions, both at Headquarters and in the Regions. Response. As described above, the Agency applied the entire $15.0 million from

the fiscal year 02 appropriations bill to fund enforcement FTEs. My understanding

is that EPA is continuing to manage to its proposed FTE ceiling consistent with

funding provided by the Congress in the fiscal year 02 appropriations bill. Actual

FTE utilization for the year is expected to be very close to the proposed 2002 FTE

ceiling.

Question 1(c). What specific actions would you take, if confirmed, to assure that

EPA enforcement positions are restored to fiscal year 01 levels?

Response. If confirmed, I will continue to ensure that the enforcement program

at EPA manages its funding and personnel levels consistent with those proposed in

the fiscal year 02 operating plan. I will also examine closely the resources and staffing levels at both Headquarters and in the Regions to ensure that the Office of Enforcement and Compliance Assurance (OECA) is directing its available resources to

those areas where the most significant public health and environmental problems

exist. To the extent that enforcement positions allocated to OECA become vacant,

I will work with the administrative and personnel offices to ensure that OECA is

actively recruiting and hiring qualified employees to meet EPA’s staffing needs and

maintaining the Agency’s authorized staffing levels. If additional staffing needs are

identified, I will advocate for whatever additional resources are necessary to ensure

that our Headquarters and Regional offices are able to continue to pursue the Agency’s mission effectively.

Question 1(d). Are you willing to vigorously enforce the laws even when you or

the Administration do not agree with those laws? Have you had to do so in any prior

positions? If so, please explain.

Response. Yes. If confirmed, I believe that as the Assistant Administrator for

OECA, my job will be to enforce our nation’s environmental laws as they are written, firmly and fairly. I also believe that one of the roles for the Assistant Administrator of OECA is to ensure that enforcement’s concerns and issues are considered

when decisions are made regarding proposed statutory or regulatory amendments,

and to articulate what impact proposed changes might have on enforcement actions.

As to my own experiences in enforcing laws that an Administration may disagree

with, I have had several occasions where I have been involved in enforcement actions that were contrary to the prevailing view of an Administration.

For example, when I was the Director of the Division of Gaming Enforcement, I

initiated several civil actions against online gambling enterprises seeking to enjoin

their activity, which is illegal in the State of New Jersey and in violation of Federal

law. At the time that we began our actions, the New Jersey legislature was considering a proposal to amend New Jersey’s laws and Constitution to allow for online

gambling. The casino industry was also lobbying the Administration to allow for

some forms of online gambling to be permitted. Although the civil actions that we

commenced were controversial, we believed that New Jersey’s citizens needed to be

protected from unscrupulous online gambling operators and that action needed to

be taken to ensure that entities seeking to do business in New Jersey were in compliance with State law.

Question 1(e). Do you agree to fully cooperate with the Congress in a timely manner on requests for information, including requests for operating plans or other documents related to enforcement issues? Will you appear to discuss such issues when

requested by a subcommittee, as well as by the full committee?

Response. Yes, I will fully cooperate with Congress and respond to requests for

information or documents related to enforcement issues in a timely manner. I will

also appear before any committee or subcommittee to discuss congressional requests

for information or documents, and will provide the members of such committees and

subcommittees with information and explanations that may assist the members in

understanding the work performed by OECA.

Question 2. The recent resignation of Eric Schaeffer from his post as Director of

the Office of Enforcement and Compliance Assurance’s Office of Regulatory EnforceVerDate 11-MAY-2000 11:43 Jul 22, 2003 Jkt 000000 PO 00000 Frm 00085 Fmt 6601 Sfmt 6621 81722 SENENV1 PsN: SENENV1
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ment (ORE) underscored the level of frustration that is felt by many in the Office

of Regulatory Enforcement.

According to Mr. Schaeffer, one of his concerns while still Director of ORE was

that he was asked by his superiors to withdraw offers of employment to future enforcement personnel, despite the availability of adequate funding. He was particularly concerned that entire areas of specialization are currently without any staffing.

Question 2(a). Do you believe it is important to retain experienced staff? Do you

have a plan to ensure that valuable employees are retained?

Response. Yes, I believe it is very important that experienced staff in OECA are

retained so that their expertise and advice are available to assist me, if confirmed,

in the management and policy challenges facing the Office. I have been very impressed with the overall competence and professionalism of the staff at OECA, and

believe that human capital is one of the biggest and best assets that OECA can

bring to bear on important environmental issues. I also believe that by providing

senior management and staff with new challenges and experiences, either through

the Senior Executive Service mobility program, rotational assignments from other

EPA offices, Intergovernmental Personnel Agreements, training, or through growth

and promotion within the Office, that senior staff will continue to respond to the

challenges faced by the Office and will maintain their desire to stay.

Question 2(b). What is your plan for ensuring that critical areas of specialization

are properly staffed?

Response. If confirmed, I intend to examine fully the resources allocated to OECA

and to ensure that resources are being directed toward those areas that have the

most significant impact on public health and the environment. If there is a staffing

need in a critical area, then I will ensure that personnel and resources are allocated

to address that need. To the extent that additional resources may be needed to staff

a critical area of specialization, then I believe that the Assistant Administrator for

OECA should be advocating for those additional resources and directing them to

that critical area so that the mission of enforcement is not compromised.

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NOMINATIONS TO THE CHEMICAL SAFETY

AND HAZARD INVESTIGATION BOARD: JOHN

BRESLAND AND CAROLYN MERRITT

THURSDAY, JULY 18, 2002

U.S. SENATE,

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,

Washington, DC.

The committee met, pursuant to notice, at 10:02 a.m. in room

406, Senate Dirksen Building, Hon. James Jeffords [chairman of

the committee] presiding.

Present: Senator Jeffords.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS,

U.S. SENATOR FROM THE STATE OF VERMONT

Senator JEFFORDS. The hearing will come to order.

Good morning and thank you for being here. Ms. Merritt and Mr.

Bresland, by accepting the nomination of this position, you are

showing all of us your commitment to public service, and I want

to thank you for that.

You have been nominated to be members of the U.S. Chemical

Safety and Hazard Investigation Board. The mission of this Board,

promoting chemical safety, has always been an important one. But

in the wake of September 11, we are looking at our homeland safety and security with heightened concern and scrutiny. The responsibilities of the Chemical Safety Board Members are challenging,

and I look forward to hearing from each of you as to how you are

prepared to meet these challenges.

Mr. Bresland, pleased to have you here, and please proceed.

Mr. BRESLAND. If I may, Mr. Chairman, before I start I would

like to introduce some of my family members.

Senator JEFFORDS. You may do that.

Mr. BRESLAND. My wife Beth is sitting behind. She is an oncology social worker.

Senator JEFFORDS. Give me a little wave back there. Yes, all

right, fine.

Mr. BRESLAND. She is an oncology social workers at Morristown

Memorial Hospital in Morristown, New Jersey. And also my niece

and nephew, Michelle and Carrie Kimmel

Senator JEFFORDS. Welcome.

Mr. BRESLAND. And my grandniece, Shea Bugijinski, who lives in

Washington, DC, and has actually just started work here after

graduating from university.

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STATEMENT OF JOHN S. BRESLAND, PRESIDENT,

ENVIRONMENTAL AND SAFETY RISK ASSESSMENT, LLC

Mr. BRESLAND. Thank you, Mr. Chairman, and distinguished

members of the committee. My name is John Bresland. I am honored to appear before you to tell you about my background and

what I hope to accomplish if confirmed as a member of the Chemical Safety and Hazard Investigation Board.

Let me also say that I am very grateful for the support of Senator John Corzine and Representative Rodney Frelinghuysen from

my home State of New Jersey.

My reasons for being honored by this nomination are both personal and professional. I was born in Londonderry, Northern Ireland. My education in chemistry took place in Northern Ireland

and in England. I came to the United States 36 years ago, and I

spent all of these years working in the chemical industry in the

United States. I became a United States citizen in a ceremony at

Independence Hall in Philadelphia in 1983. Both the United States

and the chemical industry have been good to me and they have allowed me to live in freedom and in comfort.

After many years of experience in business, I have the desire to

get involved in public service and return some of the benefits that

I have received over the years. I am fully committed to the public

service mission of the Chemical Safety Board, which is to prevent

accidents, save lives and protect the environment by conducting investigations, and advocating safety recommendations.

In 1966, I joined the Allied Chemical Company, which is now

called Honeywell International in West Virginia. I continued to

work for Honeywell until the year 2000. During that time, I worked

in chemical plants in West Virginia, Philadelphia, Pennsylvania,

Hopewell, Virginia, and my last 5 years with Honeywell were spent

at their corporate headquarters in Morristown, New Jersey.

My experience in the chemical industry has, I believe, been

broad-based. It includes chemicals manufacturing. I have been an

operations manager and a plant manager in complex chemical

plants. My experience includes management. I was responsible for

the operation of a facility with 300 employees, both union and nonunion. I am experienced in health, safety and environmental compliance. I have been responsible for chemical plants compliance

with Federal, State and local laws and regulations.

I have extensive experience in community outreach. I have run

community outreach panels for Honeywell, made a point of personally visiting plant neighbors and listening to their concerns when

they have complaints about plant operations. I was chairman of the

American Chemistry Council’s National Plant Manager and Community Leaders Training Program.

And finally, with regard to chemical process safety, when I retired from Honeywell, I formed my own consulting company specializing in the areas of compliance with OSHA’s Process Safety

Management Program and EPA’s Risk Management Program. I

also worked as a staff consultant with the Center for Chemical

Process Safety, which is part of the American Institute of Chemical

Engineers. Currently, I am helping to develop chemical process

safety books, including one on reactive chemicals management,

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which as you may know is the subject of a current major ongoing

investigation at the Chemical Safety Board.

Mr. Chairman, I believe that my experience will blend with the

solid professional experience and dedication of the current Board

members and that of the nominee for Chair, Carolyn Merritt. I

would hope to contribute toward consensus on the agency’s mission

and activities. In my view, the priorities of the Board over the next

5 years should be as follows. First and foremost, increase the number of accident investigations. Next, step up the work that the

Board is already doing to be an advocate for the implementation

of CSB safety recommendations by industry and by government.

This means continuing to work in a cost-effective manner with

the Board’s stakeholders, including those people who live around

chemical plants, the chemical process industry and its trade organizations, labor unions, Members of Congress and congressional

staffs, and last but not least, EPA and OSHA.

I believe Boardmembers and the Chief Operating Officer must

manage the agency in a sound and prudent manner. If confirmed,

I will be committed to developing a close and effective working relationship with the new Chair, with the other Boardmembers and

with the current staff of the agency.

Finally, Mr. Chairman, in today’s world of concern about terrorism, I would hope that the agency could explore with your committee ways to use the expertise of the Chemical Safety Board to

improve homeland security with regard to chemical facilities.

The goal of all of these priority actions, of course, will be an improvement in chemical plant process safety, saving lives and protecting the environment. If at the end of my 5-year term, I could

point to success in those areas, I believe that my time in Washington will have been well spent. I am looking forward to the challenges that face me with humility and enthusiasm. If you honor me

with confirmation, I look forward to working with you and with

your staffs.

Thank you again for the opportunity to appear before you and I

will be pleased to answer any questions that you may have.

[The prepared statement of Mr. Bresland follows:]

Senator JEFFORDS. Thank you. An excellent statement.

Mr. BRESLAND. Thank you, Mr. Chairman.

Senator JEFFORDS. Ms. Merritt?

STATEMENT OF CAROLYN W. MERRITT, FORMER SENIOR VICE

PRESIDENT FOR ENVIRONMENT, HEALTH AND SAFETY, IMC

GLOBAL, INC.

Ms. MERRITT. Mr. Chairman and members of the committee,

thank you for the opportunity to appear before you today. My name

is Carolyn Merritt and I am currently a resident of Palatine, Illinois. I am married to Stephen and have been for 35 years. We have

two grown children, one in Los Angeles and one in Austin, Texas.

I am honored and humbled by this nomination from the President to the position of chairman and CEO of the U.S. Chemical

Safety and Hazard Investigation Board. In a career that spanned

over 30 years, I have had the satisfaction of working as a high

school teacher, as a general foreman, environmental manager and

corporate officer. I have been proud of my accomplishments, but I

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believe that it would be my utmost privilege to now work in government service.

I am excited by the opportunity to contribute my experiences and

knowledge to the U.S. Chemical Safety and Hazard Investigation

Board. I believe this agency can effectively fulfill its mandate to determine root cause of chemical accidents and to recommend and advocate safety improvements in industry. Chemical accidents cost

human lives, contaminate the environment, and destroy production

facilities and jobs. The Chemical Safety Board can and does help

to prevent these losses.

In every position I have held, I have worked to be an effective

leader, communicator and problem solver. My professional experience has included work in facilities that manufactured chemicals,

fertilizers, pharmaceuticals, munitions and pulp and paper. I have

worked in research, quality control, environmental compliance,

worker safety, and as an executive manager.

From 1994 to 2001, I served as Senior Vice President in Environment, Health and Safety for IMC Global, a billion-dollar agricultural chemicals company with as many as 12,000 employees. From

the early 1980’s to 1994, I held environmental and safety management positions with Tennessee Chemical Company and Champion

International Corporation.

But my most rewarding experience has been working with communities, industrial managers and workers to reduce the risk that

a facility will suffer a disastrous chemical incident, and to prepare

for emergency response in the event that one should occur. OSHA’s

1993 process safety management standard was an important milestone in improving plant safety and protecting workers, residents

and the environment. I have worked with two different industries

guiding management and operating staff as they implemented

these rules. I believe these regulations have saved lives and prevented substantial environmental damage.

The chemical industry in which I have spent most of my career

is an important contributor to our economy and quality of life. At

the same time, I have seen that government has a significant role

to play in verifying the safety and compliance of chemical manufacturing facilities and facilities that use hazardous chemicals in their

processes. The Chemical Safety Board will work in partnership

with regulatory agencies and the regulated community and Congress to determine how best to use the lessons learned from incident investigations to prevent recurrences.

Prevention has to be the ultimate reason for regulation. The

Chemical Safety Board can be an important vehicle to achieve effective prevention.

Mr. Chairman, the Board has gone for more than 2 years without

a Chair and a full-time Chief Operating Officer or a full complement of Boardmembers. If John Bresland, President Bush’s

nominee for the other open Board position, and I are fortunate

enough to be confirmed, the Board will for the first time have all

five seats filled. The combination of academic, industrial, and agency experience represented on the Board will create a highly effective management group. I believe the CSB is poised to achieve the

results that Congress intended when it was created by the 1990

Clean Air Act Amendments.

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My executive and organizational skills can move this organization forward, improve morale and effectiveness, and achieve the

support of this committee, sister governmental agencies, and industry. I hope you will grant me the opportunity to lead this organization to a more effective future.

I thank you for the opportunity to present this testimony, and if

you have any questions, I would be happy to answer them.

[The prepared statement of Ms. Merritt follows:]

Senator JEFFORDS. Thank you very much, both of you, for excellent statements.

Did you have family members you would like to—— Ms. MERRITT. No, I do not have anyone here today. My husband

is working.

[Laughter.]

Senator JEFFORDS. OK, fine. I will have a few questions for you.

In March, 2002, the Inspector General of the Federal Emergency

Management Agency, FEMA, published a report on issues regarding management accountability and control at the Chemical Safety

Board. The report had 10 recommendations for improving the management and accountability of the Board. Could you comment on

the recommendations and what you, if confirmed as a

Boardmember, would do to implement those recommendations?

Ms. Merritt, start with you.

Ms. MERRITT. Yes, I have seen the report and read it, and have

talked to the different Boardmembers about it. Many of those provisions have already been implemented—five of them concerning

more of the management areas, and the other six are in place and

expect to be implemented by the end of the year. I think it was a

reasonable and a good review of the issues that the Board has

faced in the last several years.

It would be my expectation to be responsible for making sure

that those provisions have been implemented in a timely fashion,

along with the other Boardmembers, and also that they are sustained; that we move forward as Congress expects us to to achieve

our mission, to know where we are going, to do it cost-effectively,

and to be an agency that others will look up to as having provided

a service to the country.

Senator JEFFORDS. Mr. Bresland?

Mr. BRESLAND. Mr. Chairman, I have read the report and I have

read the follow-up actions that the Board submitted back to the Inspector General. The latest I hear is that five of those recommendations have been completed by the Board and the other five are

scheduled to be completed by the end of September. I certainly feel

that the key action for Mrs. Merritt and for myself, if we are privileged to be nominated to the Board, is to move ahead and work— all five Boardmembers work together.

Up until now, they have only had three Boardmembers, and we

all want to work together as efficiently and as collegially as possible, and we also have the opportunity to work with the new Chief

Operating Officer for the agency, Mr. Jeffers, who used to run

OSHA. I have met with him and developed what I think is a very

good starting relationship with him. So I am very optimistic that

in the future we can move ahead and make significant improvements.

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Senator JEFFORDS. Good.

Mr. Bresland, in your statement you say that you hope that the

expertise of the Board could be used to improve homeland security

with regard to chemical facilities. As you know, the committee,

working with other committees in the Congress, is working on the

Department of Homeland Security legislation. I would be interested

in hearing how you think the Chemical Safety Board should be involved in homeland security.

Mr. BRESLAND. Well, the Chemical Safety Board has expertise in

the chemical process area and they have got process engineers,

chemical engineers, mechanical engineers who know a lot about the

operation of chemical plants. And they have probably more concentrated expertise in Washington than most of the other agencies

that deal with this, with all due respect to EPA and to OSHA.

I would think that a key action that the Board could get involved

in would be evaluating chemical facilities for site security, having

a look at the way chemical facilities are secured from terrorist attacks; looking at ways to improve chemical processes; if there is an

incident, to mitigate the effects of such an incident.

I was coming down on the train from New Jersey on Monday

night, and as you come on the train, you go by chemical plants

with fences around them and you just wonder what is inside that

chemical plant and what the impact would be if somebody decided

to get in there. So I think we can use our expertise in cooperation

with your committee members and with EPA and with OSHA to

develop improved safety and security for chemical plants.

Senator JEFFORDS. Ms. Merritt?

Ms. MERRITT. Yes, I agree with Mr. Bresland. Having had responsibility for chemical facilities, its safety and security, I know

that where you draw your perimeter when you begin to look at

plant security is important. Under the process safety rules, they

do—it does include looking at plant security, so those provisions

are already there. I think industry has looked at what its most significant risk is, and like the barbed wire fence that John just mentioned, it was mostly to keep vandals out or people who might steal

product.

I think working with the other agencies and with industry to understand now what the risk might be, I think everyone would work

together and we would certainly enjoy working with the other

agencies to look at where do you draw that perimeter and what

risks do you look at, and what would their impact and effect be.

I think that is how this agency could work with homeland defense

and with the other agencies in order to make provisions that work

for industry and also to protect the country and the residents in

the nearby areas from such releases as a result of terrorists.

Senator JEFFORDS. Under the Clean Air Act, the Chemical Safety

Board is required to collect information on accidents and releases.

Do you know how complete that information is now?

Ms. MERRITT. No, I do not, but I would be happy to get back with

you on it.

Senator JEFFORDS. OK, fine.

For both of you, what rule can safer design play in addressing

potential accidents and terrorism? And what is the role of the

Board in making such recommendations?

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Ms. Merritt?

Ms. MERRITT. OK. Well, I think that is one of the things that the

Board does, is, one, to investigate incidents. It also have provisions

in its mandate to proactively do investigations and to make recommendations. I think in working with industry, associations and

with regulated agencies, as well as FBI or others, finding what the

vulnerabilities might be and then making recommendations that

others may act on I think is the role that the Board would play.

And then also working possibly with industry to help to advocate

for those changes is another way that the Board might serve homeland defense.

Senator JEFFORDS. Any comment, Mr. Bresland?

Mr. BRESLAND. I think there are probably two aspects to this.

One is safer design for new facilities. I think as the chemical industry, the oil refining industry is building new facilities, I would hope

that they are putting in the safest design, using the least toxic

chemicals to build those facilities, and also siting them in a way

that if there was an incident, the offsite impact of that incident

would be minimized.

It is a little more complex for existing facilities because an existing facility may have been in operation for 30 years. It may have

been built, in the case of the plant that I worked in in Philadelphia, it may have been built in Philadelphia 100 years ago when

nobody lived around it. Today, it is surrounded by people, so it is

difficult to just pick a plant up and go somewhere else. It is very

expensive also.

So I think the issue of inherently safer design is something that

the chemical industry is interested in and I would certainly encourage it. It should be done for new facilities. It should be done to the

best extent possible for existing facilities in doing things like reducing the amount of chemicals that you have onsite.

If I may give an analogy here that I read a few weeks ago, one

of the other things I do in New Jersey is I work for an ambulance

squad. A few weeks ago, we went to a call where a woman had fallen down the stairs and it turned out she had broken her neck and

we had to take her to the hospital. In the follow-up to that, not necessarily the follow-up to that, but I was reading about the issue of

inherent safety. The analogy was given to the stairs in your house.

If you have a house with existing stairs, if you have an existing

two-story house, the stairs are there and you can’t do much about

them, but you have to build things that would stop you falling

down. If you were building the safest possible house today, you

would built it in a one story that did not have stairs in it.

The same situation applies to the chemical industry to a certain

extent. It is easier to put in inherently safer design for new facilities than it is for older facilities. But I would certainly, as a

Boardmember, encourage the chemical industry to do it for both

types of facilities.

Senator JEFFORDS. Anything else you would like to add before I

ask you the obligatory question?

Ms. MERRITT. I would just thank you for the opportunity to be

able to be here today and to meet with you.

Senator JEFFORDS. Thank you.

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I now will ask you the obligatory questions. Are you willing at

the request of any duly constituted committee of the Congress to

appear in front of it as a witness?

Ms. MERRITT. I do.

Mr. BRESLAND. Yes.

Senator JEFFORDS. No. 2, do you know of any matters which you

may or may not have thus far disclosed which might place you in

any conflict of interest if you are confirmed in this position?

Mr. Bresland?

Mr. BRESLAND. No, I do not.

Senator JEFFORDS. Ms. Merritt?

Ms. MERRITT. No, I do not.

Senator JEFFORDS. Well, now we have the rule that says that

members have the right to, even though they did not come here

today, to submit questions to you. So I warn you, but I would not

stand by the mailbox either, so——

[Laughter.]

Senator JEFFORDS [continuing]. That is something that may

occur.

I just want to thank you for very excellent statements and I look

forward to working with you and we will have to have a meeting

of the full committee in order to endorse your presence on this committee.

So thank you, and best of luck to you.

Ms. MERRITT. Thank you.

Mr. BRESLAND. Thank you very much, Mr. Chairman.

[Whereupon, at 10:27 a.m., the committee was adjourned, to reconvene at the call of the Chair.]

[Additional statements submitted for the record follow:]

PREPARED STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE STATE OF NEW

HAMPSHIRE

Mr. Chairman, I am pleased that we have been given this opportunity to hear testimony from both of these nominees. John Bresland and Carolyn Merritt have been

nominated by the President to serve on a Board that has in the past and will continue to play a great role in the protection of our nation from major chemical accidents at fixed facilities.

The Chemical Safety and Chemical Hazard Investigation Board (CSB) was formed

under provisions of the Clean Air Act and serves to investigate and determine ways

to prevent accidents involving hazardous chemicals. Since January of 2000, this

Board has existed without a Chairman and CEO—that is not an acceptable manner

in which to run a Board that has such a weighty responsibility.

Why is it important for this particular Board to be fully staffed? As early as 1993

the EPA reported the existence of more than 278,000 chemical facilities that generate, transport, treat, store and/or dispose of hazardous waste. In the same year

it was determined that nearly four billion tons of hazardous waste are shipped each

year. That was in 1993—it is staggering to think about what those numbers are

now. The CSB has the responsibility of determining the consequences of accidents

involving hazardous chemicals at fixed facilities and are, in conjunction with the

NTSB, involved in investigating accidents involving hazardous chemicals in transit.

While the CSB does not have enforcement or regulatory powers, they are responsible for helping those who are in a position to make decisions understand why accidents happened and what can be done to prevent them in the future.

In order to be effective, the CSB must be composed of individuals who have an

intimate understanding of a number of technical areas including, but not limited to,

toxicology, accident reconstruction, general chemical safety issues and pollution regulations. Perhaps most important, they must understand the human factors and

human consequences of hazardous chemical accidents. People die, are seriously injured and lose jobs when these accidents occur and I believe that it is our duty to

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make certain that we do everything in our power to help prevent these accidents.

With a qualified and committed Board the CSB has the potential to do exactly that.

John Bresland has an extensive background in a variety of chemical safety and

conditional fields. He has studied both in the United States and abroad and has

shown a consistent desire to remain up to date on all aspects of his field. During

his career with Honeywell International he has gained valuable experience in environmental compliance, engineering, manufacturing and safety compliance. Most recently he has served as President of a consulting firm that specializes in chemical

facility safety and environmental performance improvement. I believe that he has

the kind of background and education that will make him an outstanding and highly valuable member of the CSB.

Carolyn Merritt is a skilled manager and brings with her a 25-year background

with strong ties to chemical safety. In both technical and managerial positions, she

has worked in a wide variety of positions aimed at creating safe, environmentally

responsible and involved facilities. Most recently, Carolyn Merritt has served as

Senior Vice President for Environment, Health and Safety for IMC Global, Inc. She

has been responsible for establishing plans that reduce risk and ensure that there

is the highest level of accountability. Her management experience will be an invaluable asset as Chairman and CEO of the CSB.

I am certain that both John Bresland and Carolyn Merritt will carry out the duties presented to them when confirmed to the best of their abilities—they are very

well qualified to serve on the CSB and I am pleased to have the opportunity to have

them here before the committee today.

STATEMENT OF JOHN S. BRESLAND, NOMINATED BY PRESIDENT BUSH TO BE A BOARD

MEMBER OF THE U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

Thank you, Mr. Chairman and distinguished members of the committee.

My name is John Bresland. I am honored to appear before you to tell you about

my background and what I would hope to accomplish if confirmed as a member of

the Chemical Safety and Hazard Investigation Board.

But first, if I may, I would like to introduce my wife, Beth. She is an Oncology

Social Worker at Morristown Memorial Hospital in Morristown, New Jersey. We

have two married daughters and four grandchildren.

Let me also say that I am very grateful for the support of Senator Jon Corzine

and Representative Rodney Frelinghuysen from my home State of New Jersey.

My reasons for being honored by this nomination are both personal and professional. I was born in Londonderry, Northern Ireland. My education in chemistry

took place in Northern Ireland and in England. I came to the United States 36 years

ago. I have spent all of those years working in the chemical industry. I became a

United States citizen in a ceremony at Independence Hall in Philadelphia in 1983.

Both the United States and the chemical industry have been good to me and they

have allowed me to live in freedom and comfort.

After many years of experience in business, I have the desire to get involved in

public service and return some of the benefits that I have received over the years.

I am fully committed to the public-service mission of the Chemical Safety Board:

to prevent accidents, save lives, and protect the environment by conducting investigations and advocating safety recommendations.

In 1966 I joined the Allied Chemical Company (now Honeywell International) in

West Virginia. I continued to work for Honeywell until 2000. During that time I

worked in chemical plants in West Virginia; Philadelphia, Pennsylvania; and Hopewell, Virginia. My last 5 years with Honeywell were spent at their corporate headquarters in Morristown, New Jersey.

My experience in the chemical industry has been, I believe, broad-based.

• It includes chemicals manufacturing—I have been an operations manager and

plant manager in complex facilities.

• It includes management—I was responsible for the operation of a facility with

300 employees, both union and non-union.

• I’m experienced in health, safety and environmental compliance. I have been

responsible for chemical plants’ compliance with Federal, State and local laws and

regulations.

• I have extensive experience in community outreach. I’ve run community advisory panels for Honeywell, made a point of personally visiting plant neighbors and

listening to their concerns, and I was Chairman of the American Chemistry Council’s national plant manager and community leader training program.

• And finally, with regard to chemical process safety: When I retired from Honeywell I formed my own consulting company, specializing in the areas of compliance

94

with the OSHA Process Safety Management Program and the EPA Risk Management Program. I also work as a Staff Consultant with the Center for Chemical Process Safety of the American Institute of Chemical Engineers. Currently I am helping

to develop chemical process safety books, including one on reactive chemicals management which, as you may know, is the subject of a major ongoing investigation

at the CSB.

Mr. Chairman, I believe that my experience would blend with the solid professional experience and dedication of the current Board members and that of the

nominee for Chair, Carolyn Merritt.

I would hope to contribute toward consensus on the agency’s mission and activities. In my view, the priorities of the Board over the next 5 years should be as follows:

1. First and foremost, increase the numbers of accident investigations.

2. Next, step up the work the Board is already doing to be an advocate for the

implementation of CSB safety recommendations by industry and government. This

means continuing to work in a cost effective manner with the Board’s stakeholders

including people who live around chemical facilities, the chemical process industry

and its trade organizations, labor unions, Members of Congress and congressional

staffs, and last but not least EPA and OSHA.

3. I believe that Board members and the Chief Operating Officer must manage

the agency in a sound and prudent manner. If confirmed, I would be committed to

developing a close and effective working relationship with the new Chair, other

board members and staff.

4. Mr. Chairman, in today’s world of concern about terrorism, I would hope that

the agency could explore, with your committee, ways to use the expertise of the

Chemical Safety Board to improve homeland security with regard to chemical facilities.

The goal of these priority actions, of course, will be an improvement in chemical

plant process safety saving lives and protecting the environment. If, at the end of

my 5-year term, I could point to success in those areas, I believe that my time in

Washington will have been well spent.

I am looking forward to the challenges that face me with humility and enthusiasm. If you honor me with confirmation, I look forward to working with you and

your staffs.

Thank you again for the opportunity to appear before you. I would be pleased to

answer any questions.

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STATEMENT OF CAROLYN W. MERRITT, NOMINATED BY PRESIDENT BUSH TO BE CHAIRMAN AND CEO OF THE U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

Mr. Chairman and members of the committee, thank you for the opportunity to

appear before you.

My name is Carolyn Merritt. I am honored and humbled by this nomination from

the President to the position of Chairman and CEO of the U. S. Chemical Safety

and Hazard Investigation Board. In a career that has spanned 30 years, I have had

the satisfaction of working as a high school teacher, as a general foreman, environmental manager and corporate officer. I have been proud of my accomplishments.

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I believe, however, that it would be my utmost privilege to work in government

service.

I am excited by the opportunity to contribute my experience and knowledge to the

U.S. Chemical Safety and Hazard Investigation Board. I believe this agency can effectively fulfill its mandate to determine root causes of chemical accidents and to

recommend and advocate safety improvements in industry. Chemical accidents cost

human lives, contaminate the environment, and destroy production facilities and

jobs. The Chemical Safety Board can, and does, help prevent these losses.

In every position I have held, I have worked to be an effective leader, communicator and problem solver. My professional experience has included work in facilities

that manufactured chemicals, fertilizers, pharmaceuticals, munitions, minerals, and

pulp and paper. I have worked in research, quality control, process engineering,

plant operations, wastewater treatment, environmental compliance, worker safety

and executive management. From 1994 to 2001, I served as Senior Vice President

for Environment, Health, and Safety for IMC Global, a billion dollar agricultural

chemicals company with as many as 12,000 employees. From the early 1980’s to

1994, I held environmental and safety management positions with Champion International Corporation and the Tennessee Chemical Company.

My most rewarding experiences have been working with communities, industrial

managers and workers to reduce the risk that a facility will suffer a disastrous

chemical incident and prepare for emergency response in the event such an event

were to occur. Continuing this work as part of the Chemical Safety Board has the

potential to further improve the safety and security of people, property and vital

productivity.

OSHA’s 1993 Process Safety Management standard was an important milestone

in improving plant safety and protecting workers, residents, and the environment.

I have worked in two different industries guiding management and operating staff

as they implemented these rules. I believe these regulations have saved lives and

prevented substantial environmental damage.

The chemical industry, in which I have spent most of my career, is an important

contributor to our economy and quality of life. At the same time, I have seen that

government has a significant role to play in verifying the safety and compliance of

chemical manufacturing facilities and facilities that use hazardous chemicals in

their processes. The Chemical Safety Board should work in partnership with enforcement agencies, the regulated community and Congress to determine how best

to use lessons learned from incident investigations to prevent their recurrence. Prevention has to be the ultimate reason for regulation. The CSB can be an important

vehicle to achieve effective prevention.

The Board has gone for more than 2 years without a Chair, a full-time Chief Operating Officer, or a full complement of Board Members. If Mr. John Bresland,

President Bush’s nominee for the other open Board position, and I are fortunate

enough to be confirmed, the Board will, for the first time, have all five seats filled.

The combination of academic, industrial, and agency experience represented on the

Board will create a highly effective management group. I believe the CSB is poised

to produce and can achieve the results Congress intended when it was created by

the 1990 Clean Air Act Amendments.

I believe my executive and organizational skills can move this agency forward; improve morale and effectiveness; and achieve the support and respect of this committee, sister government agencies, and industry. I hope you will grant me the opportunity to lead this organization to a more effective future.

Thank you for the opportunity to present this testimony. I would welcome questions from the committee.

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U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD,

2175 K STREET, NW SUITE 400,

Washington, DC. 20037–1809, March 8, 2002.

CLIFFORD N. MELBY,

Assistant Inspector General for Inspections,

U.S. Chemical Safety and Hazard Investigation Board,

Office of Inspector General,

Washington, DC 20472.

DEAR MR. MELBY: Thank you for reviewing the U.S. Chemical Safety and Hazard

Investigation Board’s (CSB) operations and making recommendations to improve the

efficiency and effectiveness with which we carry out our important mission.

As you reported, the CSB experienced significant management problems during

its first 2 years and has been operating for the past 2 years without a Chairperson

or a permanent Chief Operating Officer (COO). You also reported that the CSB

needs to address management control and Board member accountability issues, and

to work on clearly defining the direction of the agency and focusing resources accordingly. We concur with all of your recommendations for improvement and have

already initiated corrective actions in many areas.

We acknowledge that we have had problems, but we have been taking steps to

address and resolve these problems. We are pleased to note that meetirngs held in

the summer of 2001 aimed at addressing the issue of Board-Senior staff friction are

achieving results. In November 2001, as you were completing this review, we held

and continue to hold a number of working sessions to resolve many of the issues

identified in your report. Action plans, agreements, and other documents developed

during these working sessions are available for your review and show our commitment and progress.

We would also like to point out that your report might not adequately allow readers to recognize that in spite of unusual and difficult circumstances in the past 2

years the CSB has made progress and achieved several important accomplishments.

For example, in fiscal year (FY) 2001 the CSB was able to launch investigation assessment teams to five incidents, three of which resulted in conducting full investigations. Further, we met our goal of completing the first of these investigations

in less 1:han 12 months, and the others are nearing completion. In the past year

we have also worked on an important hazard investigation related to reactive

chemicals and completed work on all of the backlogged cases that were left over

from the CSB’s former management. In addition to progress on investigation work,

the CSB has made significant progress in establishing its infrastructure, for example our first full financial audit received an unqualified opinion. We also received

positive reports from the Office of Personnel Management regarding our human capital management and from the Office of Government Ethics regarding our ethics

program.

The CSB will take positive action to address the concerns raised in your report.

The following discussion addresses each of your recommendations and the actions

we have taken and/or plan to take to operate in a more effective and efficient manner.

OIG Recommendation 1. Recommend the Board establish the necessary protocol,

and then designate, an acting Chairperson or Vice-Chair. In the absence of a Chairperson, the Vice-Chair should be the chief executive and administrative officer with

authority to appoint and supervise the staff, distribute business among the agency’s

personnel and administrative units, and control the preparation of the agency’s

budget and expenditure of funds.

We agree with your recommendation. When the former Chairperson resigned in

January 2000, the remaining Board members and General Counsel explored the

possibility of delegating the Chairperson’s executive and administrative functions to

one Board Member until the President appointed and the Senate confirmed a new

Chairperson. The White House Counsel advised against this course of action. After

an unanticipated 2-year vacancy in the position of Chairperson, the CSB will again

pursue appointing an acting Chairperson. As a first step, the Board will request a

binding legal opinion on the legality of the appointment of an acting Chairperson

from the Office of Legal Counsel of the U.S. Department of Justice. This request

will be submitted by March 31, 2002.

OIG Recommendation 2. Recommend the Board delegate to the COO the authority

to effectively manage the day-to-day operations of the CSB. The delegation should

be consistent with the duties set forth in the COO’s position description.

We agree with the recommendation and will codify our delegation of authority to

the COO to effectively manage the day-to-day operations of the CSB. Consistent

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with the duties set forth in the COO’s position description, the delegation will include authority to:

• Oversee and carry out administrative and operational functions of the CSB,

such as financial management operations, human resource management, public/government affairs and outreach, and administrative support operations; • Direct and oversee strategic planning to meet the Board’s objectives; • Deploy investigation teams and oversee all substantive investigation and safety mission-related programs; and • Manage policy development and implementation, program integration and

management, and advisory services in concert with the Board’s general guidance

and direction.

The delegation will be accomplished by a Board Order, and we plan to have a

draft available for the OIG to comment on by April 30, 2002.

OIG Recommendation 3. Recommend the Acting COO develop a written strategy

for identifying, prioritizing, and improving the agency’s system of management controls. Particular attention should be paid to establishing accountability mechanisms,

including separation of duties. This may be accomplished through a senior management council below the Board level consisting of managers and key staff, who would

review controls, assess and report on deficiencies, and provide input on their improvement and priority.

We agree with the recommendation and the COO will develop a written strategy

for identifying, prioritizing, and improving the CSB’s system of management controls. This strategy will include your suggestion of a management council below the

Board level to oversee and audit operations. We plan to have a draft of the strategy

available for the OIG to comment on by June 1, 2002.

OIG Recommendation 4. Publish regulations that comply with the requirements

of the ‘‘Government in the Sunshine Act. ‘‘ The regulation should: (a) sped what

mechanism the CSB will use to protect public rights during quorum assemblies,

such as having General Counsel present, (b) clarify whether any item:, of Board

business, such as investigative reports, necessitate public discussion and cannot be

accomplished by notation vote alone, (c) clam whether the CSB will hold regular

meetings and under what types of exceptions it would cancel or schedule additional

meetings, such as Boards of Inquiry, (d) require the CSB to publish votes and public

meeting transcripts on the web, (e) establish the public reading room as promised

by the CSB ’s FOIA regulation, and (fl direct the CSB to submit an annual Sunshine

report to Congress.

We agree with the recommendation and will publish a regulation that complies

with the requirements of the ‘‘Government in the Sunshine Act’’ and otherwise addresses the issues raised by the OIG. We plan to have the regulation published by

May 1, 2002. In the meantime, we will implement an interim Sunshine Act Compliance program by March 31, 2002. Also, we held a public meeting on February 27,

2002 to discuss the status of the CSB’s performance goals 1.1, 1.2, and 1.3 of our

strategic plan and efforts toward hiring a permanent COO. In addition, we will establish a FOIA reading room.

OIG Recommendation 5. Revise policies and procedures io reduce Board member

involvement in the soliciting and awarding of contracts. Such measures should include vesting administrative aspects of the procurement process in the Acting COO

and raising the minimum procurement amount requiring Board approval.

We agree with the recommendation and will make appropriate revisions to our

policies and procedures to reduce Board Member involvement in the soliciting and

awarding of contracts. Key revisions will include vesting administrative aspects of

the procurement process in the COO and limiting Board Member involvement in the

procurement process to the final approval of goods or services valued at $50,000 or

more. We plan to have the revisions completed by May 31, 2002.

OIG Recommendation 6. Recommend the COO develop and implement a system

that links strategic planning to resource allocation decisions, and measures performance in a way that balances productivity and costs with desired outcomes.

We agree with the recommendation. The COO is developing a system to link strategic planning to resource allocation decisions, and measures performance to balance productivity and costs with desired outcomes. The CSB is now monitoring

progress on performance goals using work plans. We are also developing a system

to track staff hours to performance goals. We plan to have this system in place by

April 30, 2002.

OIG Recommendation 7. Recommend the Board immediately prioritize agency resources to ensure successful execution of all action items related to its investigative

performance goal.

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We agree with the recommendation and have taken a hard look at our performance plan for fiscal year 2002. To ensure we prioritize resources on oar investigative

goal we will rescind the following initiatives related to outreach:

• Conducting a workshop with the Safety and Chemical Engineering Education

Committee;

• Co-sponsoring a conference with the National Institute of Environmental

Health Sciences; and

• Obtaining membership in the Center for Chemical Process Safety.

Further, we will not undertake new initiatives or hiring for outreach or data until

we review our strategic plan to ensure the CSB is focused on the successful execution of our investigative performance goal. We plan to have this review completed

by June 30, 2002, and proposed revisions will be vetted with our congressional authorizing and appropriating committees.

OIG Recommendation 8. Recommend the Board and COO make the agency’s fiscal

year 2002 hiring plans a top priority and to the extent possible, accelerate the hiring process for new investigators.

We agree with the recommendation and hiring staff within the Office of Investigations and Safety Programs is a top priority. To accelerate filling these critical positions, the CSB will petition OPM for permanent Schedule A hiring authority for investigative positions. Under temporary Schedule A hiring authority the CSB had a

very successful hiring program in FY’s 2000 and 2001. We plan to submit a request

for Schedule A hiring authority to the Of Fice of Personnel Management by March

31, 2002. In addition, we ask for your support in getting Schedule A hiring authority, which is the key to getting new investigators on board as quickly as possible.

OIG Recommendation 9. Recommend the Board and COO curtail training-outreach initiatives until (a) the Board develops a Strategic Outreach Plan that takes

into account the agency’s statutory authority responsibilities, primary audience, and

limited resources; and (b) its investigative function is fully operational. The plan

should reflect the consensus of the Board members, senior management and staff.

We agree with the recommendation and have curtailed the, training-outreach initiatives identified under recommendation 7. We are developing a strategic outreach

plan that we expect to finalize by April 30, 2002. As previously stated, we will also

review our strategic plan to ensure that the CSB is focused on the successful execution of our investigative performance goal.

OIG Recommendation 10. Recommend the Board and COO implement a followup program for recommendations made in investigative reports, including monitoring recommendations, closing recommendations when corrective actions are

taken, and periodically publishing the status of them. In order to better measure

the impact of report recommendations, the program should be tied to the performance measures identified in the agency’s performance plan.

We agree with the recommendation and plan to undertake the following:

• Vote to close out 20 of our past recommendations by March 15, 2002.

• Implement an internal tracking system for recommendations status including

a data base and electronic file system for correspondence and documentation by

March 30, 2002.

• Hold a public meeting to formally close a number of other recommendations

by May 31, 2002.

• Implement a publicly accessible data base on the Work. Wide Web for CSB’s

recommendations status by October 2002.

• Include the percentage of recommendations adopted as a significant factor in

measuring the effectiveness of CSB’s mission accomplishment.

Again, we thank you and your staff for your efforts and recommendations to improve the efficiency and effectiveness with which we carry out our important mission.

Sincerely,

GERALD V. POJE, Board Member

ISADORE ROSENTHAL, Board Member

ANDREA KIDD TAYLOR, Board Member

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