U.S. GOVERNMENT PRINTING OFFICE

67–120CC WASHINGTON : 2000

THE ROLE OF THE EPA OMBUDSMAN IN

ADDRESSING CONCERNS OF LOCAL COMMUNITIES

JOINT HEARING

BEFORE THE

SUBCOMMITTEE ON

FINANCE AND HAZARDOUS MATERIALS

AND THE

SUBCOMMITTEE ON HEALTH AND ENVIRONMENT

OF THE

COMMITTEE ON COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

OCTOBER 3, 2000

Serial No. 106–161

Printed for the use of the Committee on Commerce

(

COMMITTEE ON COMMERCE

TOM BLILEY, Virginia, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

MICHAEL G. OXLEY, Ohio

MICHAEL BILIRAKIS, Florida

JOE BARTON, Texas

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

Vice Chairman

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

BRIAN P. BILBRAY, California

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

RICK LAZIO, New York

BARBARA CUBIN, Wyoming

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

ROY BLUNT, Missouri

ED BRYANT, Tennessee

ROBERT L. EHRLICH, Jr., Maryland

JOHN D. DINGELL, Michigan

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

RON KLINK, Pennsylvania

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

TOM SAWYER, Ohio

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

JAMES E. DERDERIAN, Chief of Staff

JAMES D. BARNETTE, General Counsel

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON FINANCE AND HAZARDOUS MATERIALS

MICHAEL G. OXLEY, Ohio, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

Vice Chairman

PAUL E. GILLMOR, Ohio

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

STEVE LARGENT, Oklahoma

BRIAN P. BILBRAY, California

GREG GANSKE, Iowa

RICK LAZIO, New York

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

VITO FOSSELLA, New York

ROY BLUNT, Missouri

ROBERT L. EHRLICH, Jr., Maryland

TOM BLILEY, Virginia,

(Ex Officio)

EDOLPHUS TOWNS, New York

PETER DEUTSCH, Florida

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

FRANK PALLONE, Jr., New Jersey

BOBBY L. RUSH, Illinois

JOHN D. DINGELL, Michigan,

(Ex Officio)

(II)

SUBCOMMITTEE ON HEALTH AND ENVIRONMENT

MICHAEL BILIRAKIS, Florida, Chairman

FRED UPTON, Michigan

CLIFF STEARNS, Florida

JAMES C. GREENWOOD, Pennsylvania

NATHAN DEAL, Georgia

RICHARD BURR, North Carolina

BRIAN P. BILBRAY, California

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

Vice Chairman

RICK LAZIO, New York

BARBARA CUBIN, Wyoming

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

ED BRYANT, Tennessee

TOM BLILEY, Virginia,

(Ex Officio)

SHERROD BROWN, Ohio

HENRY A. WAXMAN, California

FRANK PALLONE, Jr., New Jersey

PETER DEUTSCH, Florida

BART STUPAK, Michigan

GENE GREEN, Texas

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

LOIS CAPPS, California

RALPH M. HALL, Texas

EDOLPHUS TOWNS, New York

ANNA G. ESHOO, California

JOHN D. DINGELL, Michigan,

(Ex Officio)

(III)

C O N T E N T S

Page

Testimony of:

Boggiatto, Kimberly .......................................................................................... 101

Bowers, Bret, Executive Director, Community Leaders for EPA Accountability Now! ................................................................................................... 106

Fields, Timothy, Assistant Administrator, Office of Solid Waste and

Emergency Response, U.S. Environmental Protection Agency ................. 39

Martin, Robert, Ombudsman, U.S. Environmental Protection Agency ....... 44

Mosley, Mary .................................................................................................... 104

Material submitted for the record:

Dingell, Hon. John D., letter dated October 12, 2000, to Nikki L. Tinsley,

Inspector General, U.S. Environmental Protection Agency, enclosing

questions for the record, and responses to same ........................................ 159

Shapiro, Michael H., Acting Assistant Administrator, EPA, letter dated

February 5, 2001, enclosing response for the record, with attachments .. 136

(V)

(1)

THE ROLE OF THE EPA OMBUDSMAN IN ADDRESSING CONCERNS OF LOCAL COMMUNITIES

TUESDAY, OCTOBER 3, 2000

HOUSE OF REPRESENTATIVES,

COMMITTEE ON COMMERCE,

SUBCOMMITTEE ON FINANCE AND HAZARDOUS

MATERIALS, JOINT WITH

SUBCOMMITTEE ON HEALTH AND ENVIRONMENT,

Washington, DC.

The subcommittees met, pursuant to notice, at 10:10 a.m., in

room 2123, Rayburn House Office Building, Hon. Michael G. Oxley

(Chairman, Subcommittee on Finance and Hazardous Materials)

presiding.

Members present, Subcommittee on Finance and Hazardous Materials: Representatives Oxley, Largent, Shimkus, Blunt, Ehrlich,

Barrett, and Luther.

Members present, Subcommittee on Health and Environment:

Representatives Bilirakis, Cubin, Bryant, Brown, Green, and

DeGette.

Also present: Representatives Sawyer and Chenoweth-Hage.

Staff present: Robert Meyers, majority counsel; Amit Sachdev,

majority counsel; Robert Simison, legislative clerk; Richard A.

Frandsen, minority counsel; and Sarah A. Keim, Presidential Management Intern.

Mr. OXLEY. The subcommittee will come to order.

The Chair would recognize the cochair of our hearing today,

Chairman Bilirakis, chairman of the Health and Environment Subcommittee, for an opening statement.

Mr. BILIRAKIS. Thank you, Mr. Chairman; and I want to thank

you and your staff for your cooperation in holding this hearing.

Your subcommittee has more jurisdiction in this matter than does

ours, but I know that we are all greatly concerned about this particular issue, and I want to thank you.

I also want to welcome our witnesses and audience to today’s

hearing concerning the role of the U.S. Environmental Protection

Agency’s national hazardous waste and Superfund Ombudsman in

addressing concerns of local communities.

Today, we will seek to address several basic questions.

First, we are interested in understanding the Office of the Ombudsman’s interaction with the general public, as well as the relationship between this office and other offices within EPA. We are

interested in hearing the services which the Office of the OmbudsVerDate 11-MAY-2000 13:42 Apr 06, 2001 Jkt 010199 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 E:\HEARINGS\67120 pfrm08 PsN: 67120
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man provides and whether the office is allowed sufficient independence. We are also interested in Assistant Administrator Fields’ view of the Office of the Ombudsman and what EPA considers to

be the permissible functions of the office.

One of EPA’s stated goals is to ensure, and I am quoting, that

all parts of society—communities, individuals, business, State and

local government and tribal governments—have access to accurate

information sufficient to effectively participate in managing human

health and environmental risks, end quote.

Unfortunately, many citizens around the country would contend

that EPA has failed in its relationship with local communities.

Chairman Oxley and I requested this joint hearing after becoming acquainted with several instances in which communities were

unhappy with the EPA’s responsiveness to their needs, particularly

with regard to Superfund sites. In many cases, the EPA Ombudsman has become involved and opened up avenues of communication

for the public’s concerns to be taken into consideration. I have received letters from people all over the United States expressing

their support for the EPA Ombudsman. I have those letters bundled, Mr. Chairman, and I ask unanimous consent to enter these

into the record.

Mr. OXLEY. Without objection.

[The information referred to follows:]

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Mr. BILIRAKIS. Mr. Chairman, I have also experienced the work

of the Ombudsman firsthand at the Stauffer Superfund site in my

hometown of Tarpon Springs, Florida. At this site it became increasingly clear over several years that many of my constituents

were shut out of the cleanup process. They felt that their concerns

were not heard by EPA officials in charge of the site. Therefore, at

my request, the EPA Ombudsman is conducting an independent review of the Stauffer cleanup plant. To date, public meetings with

the Ombudsman have successfully highlighted the need for additional scientific studies and increased local residents’ confidence in

the Superfund process.

My concern is to ensure that the Ombudsman’s Office is allowed

to continue to provide assistance to local communities in holding

EPA accountable. While EPA officials have publicly and privately

assured me of their full support for the Ombudsman’s efforts, their

actions suggest a different attitude. Over the past several months,

EPA and Justice Department officials have nearly derailed the Ombudsman’s investigation of the Stauffer site and other cases.

Shortly before a scheduled public meeting in June of this year,

EPA national officials indicated to the Ombudsman that insufficient funds were available for him to continue his investigation at

the Stauffer site. Only after Chairman Oxley, Chairman Tauzin

and I intervened did the Agency make a commitment to provide

the necessary resources.

At the June meeting in Tarpon Springs, Florida, EPA Region 4

representatives made a brief presentation regarding the Stauffer

site. After only 10 minutes they abruptly walked out in the middle

of a question. Naturally, my constituents and I were outraged by

this display of contempt, dare I say arrogance, on the part of EPA

representatives.

While I am certainly concerned about the Stauffer site and the

well-being of my constituents, my experiences, Mr. Chairman, also

led me the to question whether Stauffer is an isolated case or is

symptomatic of local concerns across the country; and that is the

key point of this hearing. Are Stauffer and the other sites where

the Ombudsman has been involved isolated cases or do they represent just the tip of the iceberg? Are we dealing with a true exceptional case or is this business as usual at the EPA?

At this point, Mr. Chairman, I would like to extend a very warm

welcome to one of my constituents, Mary Mosley, a Tarpon Springs

resident and former city commissioner. Ms. Mosley will testify in

more detail about the EPA and the Ombudsman’s involvement in

the Stauffer case. We look forward to hearing her statement as

well as the statements of the other citizen witnesses, Mr. Bret

Bowers from Coeur d’Alene, Idaho, and Ms. Kimberly Boggiatto

from Denver, Colorado. I want to thank you all for your time and

effort in traveling to testify here today.

I also want to welcome, Mr. Chairman, Mr. Timothy Fields, Assistant Administrator of EPA’s Office of Solid Waste and Emergency Response, and also the Ombudsman, Mr. Robert Martin. Mr.

Fields is no stranger to this committee, and I know we all look forward to hearing the administration’s views on the role of the Office

of the Ombudsman and its relationship with EPA.

Thank you, Mr. Chairman.

32

Mr. OXLEY. I thank the gentleman and now recognize the ranking member for the Health and Environment Subcommittee, gentleman from Ohio, Mr. Brown.

Mr. BROWN. Thank you, Mr. Chairman.

Today we are holding an oversight hearing on the Office of the

Ombudsman at the EPA. This office was created 16 years ago with

the passage of the Hazardous and Solid Waste Amendments of

1984.

The function of the EPA Ombudsman is to receive individual

complaints, grievances and requests for information submitted by

any person with respect to the hazardous waste program, to render

assistance and to make appropriate recommendations to the EPA

administrator. I support the function of the Ombudsman. People

need a place to go if an agency bureaucracy is not responding to

inquiries from the public and is not functioning in an open manner.

The Ombudsman provides an opportunity for citizens to express

their views and a channel for those views to be taken into consideration.

The Ombudsman is currently involved in 14 cases around the

country, including two in my own State of Ohio. To appropriately

and effectively fulfill the function of the office, the Ombudsman

must also perform his duties impartially and responsibly, gathering

facts and information in an objective manner and treat all parties,

including employees of the executive branch, fairly.

I welcome our witnesses today and look forward to their testimony.

Mr. OXLEY. I thank the gentleman.

The Chair would now recognize himself for an opening statement; and I am also pleased to be holding the joint subcommittee

hearing today with my colleague, Mr. Bilirakis, chairman of the

Health and Environment Subcommittee, on the role of the EPA

Ombudsman in addressing concerns of local communities. This is

a hearing that goes to the heart of the public’s faith in government.

People who live near Superfund sites have turned to the government for explanations on health. Responsiveness of EPA to these

citizens has been a concern of my mine for a long time.

With the goal of promoting faster and safer cleanups, I, along

with many colleagues, have introduced Superfund reform bills that

would increase local participation in the remedy selection process

and that would make community involvement a more integral part

of EPA’s cleanup criteria.

The Ombudsman’s Office within EPA plays an important role. It

serves as a citizen watchdog and as a backstop to ensure that the

best decisions are being made for their community. Trust in the

process is heightened when people know they have an independent

voice to closely examine an agency decision. Mistrust often leads to

controversy and cleanup delays.

Therefore, I was very disturbed when my friend Mr. Bilirakis

told me that EPA appears to be impeding the helpful work that the

Ombudsman’s Office has been doing in his District. We had a telephone conversation with Administrator Browner on that subject.

Yet that conversation did not prevent the inexcusable conduct of

regional EPA personnel who subsequently walked out of a public

meeting in my colleague’s district. Since then I have learned of a

33

Department of Justice letter that threatens to disrupt the Ombudsman’s investigative work at the Coeur d’Alene site in Idaho.

These situations speak directly to the independence of the Ombudsman and to the credibility of the Agency. No one, not elected

officials, not appointed agency bureaucrats, should be afraid to

have their decisions subjected to public scrutiny.

I look forward to hearing firsthand from the citizens who have

been dealing with EPA and the Ombudsman regarding Superfund

sites in their community. I will be looking for EPA assurances that

the Ombudsman’s Office has the resources and the independence

to play a constructive role in communities with Superfund sites.

I welcome our witnesses today—Mr. Fields, welcome back to the

subcommittee; we are looking forward to your testimony—and now

recognize the gentleman from Ohio, Mr. Sawyer.

Mr. SAWYER. Thank you, Mr. Chairman. Although I am not a

member of either subcommittee, I do serve with you on the full

committee; and I appreciate your forbearance in allowing me to

take part in these hearings today. I have a statement I will submit

for the record. I look forward to hearing from our witnesses.

Mr. OXLEY. We thank you for your participation.

Are there other opening statements?

The gentleman from Illinois, Mr. Shimkus.

Mr. SHIMKUS. Thank you, Mr. Chairman. Thank you for holding

this very important hearing.

You know this is an issue that—not just the Ombudsman but

small business regulatory relief is something near and dear to my

heart. Since February 1999, I have been working to help 159 innocent small businesses in Quincy, Illinois, to obtain freedom from

the Superfund litigation nightmare. And it has been a nightmare,

and it continues to be a nightmare.

Last week, when the EPA Administrator Carol Browner disproved the Small Business Liability Relief Act, killed its chances

in the House and the measure failed, I lost all faith that EPA really wanted to work toward small business relief.

Yesterday, when I heard the Keystone Pennsylvania lawsuit had

settled and the EPA was touting a small business victory, I was appalled but not surprised that the settlement explicitly preserves

waste management’s lawsuit against Barbara Williams, another famous name in the fight against the bureaucracy, restaurateur from

Gettysburg, Pennsylvania. I just wish Chairman Goodling was here

to join us, the restaurant owner who we all heard about numerous

times.

Let me read from some of the release of the EPA: EPA is pleased

to conclude this extensive, expensive and contentious litigation.

That is why we need Superfund reform—because it is expensive,

extensive and contentious.

Here’s another quote from their release: But Congress still needs

to address the basic deficiency in the Superfund law which allowed

this huge number of defendants to be sued. Hence, House Resolution 5175 which the EPA fought to defeat on the floor.

Also, listen to this, the part of the release: When the United

States sued 11 parties, these parties then sued 130 additional parties, and these 130 additional parties sued 500 additional parties.

That is the problem with—that is why we need Superfund reform.

34

I understand this hearing is to investigate the role of the EPA

Ombudsman and addressing concerns of local communities. I would

just ask, where were you in Quincy, Illinois?

I look forward to hearing about how the office has been successful, and I am sure we will hear where it has failed. And I will look

for asking questions of how it can be improved so that you know

the people who are caught in this type of litigation trap can get

some relief from the Federal Government.

I want to welcome the two panels. I do appreciate you coming.

Mr. Chairman, I thank you for calling the hearing. I appreciate

Chairman Bilirakis also being here, and I yield back the balance

of my time.

Mr. OXLEY. Gentleman yields back.

The gentlelady from Colorado.

Ms. DEGETTE. Thank you, Mr. Chairman.

I would like to, first of all, welcome Kim Boggiatto for being here

today. She is a resident of the Overland Park community in my

home city of Denver and was instrumentally involved in successful

efforts to force the Environmental Protection Agency to remove radioactive wastes from the Shattuck Superfund site in Denver, Colorado, which both Mr. Fields and Mr. Martin have extensive experience with; and I am glad to see them here with us today as well.

I am really pleased to have her insight on the role of the EPA Ombudsman’s Office today.

Since 1986, the residents of Overland Park community in Denver

have tried to get the Environmental Protection Agency and other

responsible parties to remove radioactive wastes from the Shattuck

Superfund site. Today, that waste still is in the middle of a residential neighborhood. Radioactive soil in the area was mixed with

fly ash, then clay and covered with a pile of rock. A study released

in September 1999 by the EPA’s 5-year review panel confirmed

what residents of Overland Park had been saying for years, we

cannot be sure that the entombment of radioactive dirt at the

Shattuck Superfund site will protect human health and the environment.

Thanks to the diligent efforts of the neighborhood association

cleanup, many devoted citizens and the joint efforts of the elected

officials, both city, State and Federal, the EPA announced June 16

of this year that the waste will be removed. However, questions

continue to arise about what the Agency and the parties involved

in the Shattuck site knew about the characteristics of the waste

and when they knew it.

Most recently, the Department of Energy revealed, for example,

that the Shattuck Chemical Company was one of hundreds of companies that it secretly contracted with to do nuclear weapons work

in the 1940’s and 1950’s to process radioactive and toxic materials.

During the discussions concerning reopening the Shattuck chemical

site record of decision, it was well-known that the Shattuck facility

did receive radioactive waste from the Federal Government. However, a full accounting of what waste the Shattuck site accepted

and disposed of has been impossible because of missing and inadequate records.

The DOE’s disclosure is troubling but not perhaps surprising to

those of us who have been involved with the site. I will reiterate

35

today what I said to Mr. Fields in a letter last month upon learning of the DOE report, which is that the citizens who have worked

so long to see this waste removed have a right to expect that the

EPA’s promise to move the waste in a timely fashion will be fulfilled. While I think that there needs to be additional investigation

into some of these sites, we cannot use it as an excuse to leave this

waste onsite.

I sound like a broken record. I have no doubt that the government intends to move it, but I think we all need to be ever vigilant

to make sure that the poor decision is reversed and that this waste

is removed.

The EPA Ombudsman’s Office played an important role in securing the EPA’s commitment to remove the waste by providing the

community with the resources and advocacy to compel the Agency

to act. The independent oversight provided by an Ombudsman’s Office is essential to provide individuals and communities like Overland Park with an additional voice and an additional advocate inside an agency like the EPA, particularly in cases like Shattuck

where you are looking at questionable decisions by a Federal agency.

The role of the Ombudsman must, therefore, be preserved to ensure that Federal agencies have an internal mechanism that will

be vigilant and make sure that agencies act in the best interests

of the public. The public needs a resource to help interface with the

Federal Government to help obtain information and to investigate

potential malfeasance or remedy inefficiencies. It is equally important for the Ombudsman’s Office to uphold the highest ethical

standards because, after all, this is the office responsible for maintaining the integrity and the mission of the Agency.

Mr. Chairman, I want to thank you for having this hearing. I

want to congratulate again Clean-It! and the neighbors and also

the EPA Ombudsman for coming to the right decision in the

Shattuck site, and I yield back anytime I might have left.

Mr. OXLEY. Further opening statements?

The gentleman from Missouri, Mr. Blunt.

Mr. BLUNT. Thank you, Mr. Chairman. Thank you for holding

this hearing and particularly for focusing on the role of the Ombudsman in solving problems and eliminating needless problems

for people who are caught in the periphery of legitimate EPA actions.

As you know, Mr. Chairman, the office of ombudsman’s authority

expired in 1988. I think that is why this hearing would be particularly helpful to determine how the exiting system is working, what

we need to do to reauthorize in the best possible way a system that

meets the needs of people who are again caught on the edges of

EPA decisionmaking.

We took a bill to the floor recently that was designed to eliminate

problems for third-party defendants. That bill was opposed by the

Agency. Hopefully, we can even hear some of the reasons that that

happened and what we can do effectively to solve the kinds of problems that have been mentioned by my colleagues here today and

the individual trauma, cost and devastation that can be created by

misguided and misdirected targeting on the part of the EPA and

what the Ombudsman’s Office can do to see that that doesn’t hapVerDate 11-MAY-2000 13:42 Apr 06, 2001 Jkt 010199 PO 00000 Frm 00039 Fmt 6633 Sfmt 6602 E:\HEARINGS\67120 pfrm08 PsN: 67120
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pen and to help third parties extricate themselves from this kind

of involvement.

I am glad you have held this hearing. I look forward to the testimony and to the questions.

Mr. OXLEY. Further opening statements?

Mr. Green will submit a statement.

Other opening statements?

[Additional statements submitted for the record follow:]

PREPARED STATEMENT OF HON. PAUL GILLMOR, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF OHIO

Mr. Chairman, I want to thank you for calling this hearing on the role of the Environmental Protection Agency (EPA) Ombudsman in addressing local concerns. It

is essential that governmental agencies are responsive to the needs of the citizens

that support them.

The role of the EPA ombudsman was created in 1984 in the Hazardous Waste and

Solid Waste Amendments. This position was established to create a place where

people could issue complaints and request information on the various programs that

EPA operates. Even more so, while the ombudsman was not supposed to be a policy

or decision-maker, the position did allow the ombudsman to make suggestions directly to the EPA Administrator. The job of Ombudsman was, statutorily, intended

to end in November of 1988.

Over the last 12 years, Congress has continually funded this office. As I have had

a long-standing interest in the operations of the EPA, I am intensely curious in

knowing whether the Ombudsman’s response to the public and its role as liaison

and citizen advocate is justifying its continued existence. Particularly as the ombudsman’s place in the Superfund debate in concerned, I want to know whether the

people that have used the EPA ombudsman’s office feel they have received an appropriate response. I look forward to their testimony today.

Mr. Chairman, I believe today’s hearing offers us a chance to answer a couple of

important questions about the role of ombudsmen in our governmental system.

First, while the position of ombudsman was first created over two hundred years

ago, why did the United States wait until ten years ago to consider it an important

position for our government? Second, the ombudsman is supposed to be a job which

is independent of politics and the Executive Agency it is supposed to serve, does this

separation between politics, policy, and performance still exist. Third, as Superfund

is probably one of the EPA programs that receives greater community attention

than some of the others, how has the EPA ombudsman responded at specific Superfund sites? And last, since the EPA ombudsman has operated without a congressional authorization for many years, should this program be affirmed with a reauthorization or cancelled entirely?

I look forward to the testimony and comments of our two panels and thank you,

Mr. Chairman, for bring attention to this important issue.

PREPARED STATEMENT OF HON. TOM BLILEY, CHAIRMAN, COMMITTEE ON COMMERCE

Mr. Chairman, I want to thank you for holding this Subcommittee hearing today

about the role of the EPA Ombudsman in helping local citizens get answers from

EPA about Superfund sites in their communities.

As I have said many times over the past eight years, the Superfund law and the

Superfund program administered by EPA remain badly broken. As a result, many

Superfund cleanups take too long to complete and cost too much. Even worse, as

we have heard from scores of witnesses, one of the biggest problems with Superfund

has to do with all the lawyers. For years the program has been inefficient because

of the wasted time and resources as a result of waves of litigation, lawyer fees, excessive administrative costs and outrageous overhead.

Often the people that stand to suffer the most are citizens who live in communities across the country that are located near Superfund sites. Today, I am pleased

that we will hear from some of these residents concerning their experiences with

the Superfund program, with EPA, and with the Superfund Ombudsman.

The Ombudsman was created by law to ensure that affected the citizens would

have a ‘‘lifeline’’ within EPA. To be effective, Ombudsman must be there to help at

times when citizens have difficulty getting their voices heard within the maze of federal bureaucracy. And the Ombudsman must be able to help bring forward legitiVerDate 11-MAY-2000 13:42 Apr 06, 2001 Jkt 010199 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 E:\HEARINGS\67120 pfrm08 PsN: 67120
37

mate concerns when the government creates bureaucratic obstacles that hinder adequate public participation and ultimately delay cleanups.

I look forward to today’s hearing to assess the effectiveness of the Superfund Ombudsman over the years, and identify areas in which improvements are needed. I

welcome each of the witnesses, especially the citizens who have traveled a great distance to be here today, and look forward to their testimony.

Mr. OXLEY. Let me recognize now our distinguished colleague

from Idaho who has joined us today for the committee hearing and

obviously has a particular interest in the Coeur d’Alene site, Mrs.

Chenoweth-Hage.

Mrs. CHENOWETH-HAGE. Mr. Chairman, I want to thank you and

Chairman Bilirakis very much for giving me the opportunity to

participate with your committee in this hearing today, and I commend you both for your tremendous leadership on this issue. You

have been a godsend to those of us who have labored and labored

under the EPA up in northern Idaho.

I want to especially thank all the members of panel No. 2 for

coming so far at their own expense. I look forward to hearing the

testimony of Bret Bowers from Coeur d’Alene who will speak on

this issue, and he also has a short film that would be most interesting to the committee if he is allowed to show it.

If there was ever an example, Mr. Chairman, of the need for an

independent Ombudsman process to keep a check on the EPA, that

example exists in northern Idaho. Now picture this: A beautiful,

picturesque lake whose water measures above drinking water

standards is the place where this out-of-control agency is treating

this area as if it is a toxic waste dump, and yet we just heard the

testimony from my colleague from Denver about the refusal to

clean up the Shattuck Superfund site or their drawing out the

process.

So on one end we have a beautiful lake that measures above

drinking water standards that they want to make a toxic waste

dump, yet we had the Shattuck situation over here where they

drug their heels.

Obviously, I can spend several hours today going over with you

the numerous abuses, whether it be livestock feeder areas or whatever it might be, but the fines, the misrepresentations that the people of my district have experienced at the hands of the EPA—in

fact, I have for years investigated the issue involving the North

Idaho Lake Coeur d’Alene Superfund area. The bottom line is that

the Agency has created a tremendously drastic solution in search

of a problem up there. It is a beautiful area to live, and they can’t

find the problem, and it is leading to havoc and distress in the communities spread throughout the whole Coeur d’Alene basin.

Mr. Chairman, I have worked for years to expose the misdirected

policies by the Federal Government in that basin, but I strongly believe that only when the Ombudsman Bob Martin and his chief investigator Hugh Kaufman entered into this process at our request

that we achieved a breakthrough on this issue, and your direct

intervention—yours and Chairman Bilirakis’s—certainly helped to

elevate this issue.

The sole purpose of the Ombudsman from the very beginning has

been to get to the truth of this matter, asserting that by only finding the truth can we make good public policy and not harm the citizens that we are meant to serve. They have not been afraid to ask

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the tough questions, as you will see in the film, no matter what

threats they are receiving from their own agency or even from the

U.S. Justice Department.

Mr. Chairman, as you will hear about today, in August of this

year, Mr. Martin and Mr. Kaufman conducted a 15-hour hearing

in Idaho on the Superfund issue, finally bringing to the surface

many troubling questions that have plagued this area. So, as a result, we are working together and we are forcing EPA to answer

some very important and critical questions.

Mr. Chairman, I have more in my opening statement. I would

like to submit it for the record.

At this time, I will yield back the balance of my time. Thank you.

Mr. OXLEY. Gentlelady’s full statement will be made part of the

record, without objection.

[The prepared statement of Hon. Helen Chenoweth-Hage follows:]

PREPARED STATEMENT OF HON. HELEN CHENOWETH-HAGE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF IDAHO

Mr. Chairman, I want to first thank you and Chairman Mike Bilirakis for giving

me the opportunity to participate in today’s hearing. I commend you both for your

tremendous leadership on this issue. I am confident that because of your efforts the

EPA will change the way that it does business.

I also want to especially thank Bret Bowers, a constituent of mine from Coeur

d’ Alene, Idaho, who has come to testify about the ombudsman process in Northern

Idaho. I encourage the Committee to pay close attention to his testimony. He is a

vocal leader on this issue and knows first hand the harms of EPA policy in the region, and the need for an ombudsman process.

Mr. Chairman, if there was ever an example of the need for an independent ombudsman process to keep a check on the EPA, that example exists in northern

Idaho—where this out-of-control agency is treating one of the most beautiful river

basins in the country as if it were a toxic waste dump.

I could spend several hours today going over with you the numerous abuses and

misrepresentations that the people of northern Idaho have experienced at the hands

of the EPA. In fact, I have for years investigated this issue. The bottom line is that

the agency has created a drastic solution in search of a problem—and it is leading

to havoc and distress in the communities spread throughout the Coeur d’Alene

Basin.

Mr. Chairman, I have worked for years to expose the misdirected policies by the

federal government in the Basin. But I strongly believe that when the Ombudsman,

Bob Martin, and his Chief Investigator, Hugh Kauffman, entered into the process

at our request, we achieved a break through on this issue. Their sole purpose has

from the very beginning has been to get to the truth of this matter, asserting that

by only finding the truth can we make good public policy and not harm the citizens

we are meant to serve. They have not been afraid to ask the tough questions, no

matter what threats they are receiving from their own agency or even from the U.S.

Justice Department.

Mr. Chairman, as you will hear about today, in August of this year Mr. Martin

and Mr. Kauffman conducted a fifteen hour hearing in Idaho on the Superfund

issue, finally bringing to the surface many troubling questions that have plagued

this issue for years but have received little attention.

As a result of their work, we are finally forcing the EPA to answer these questions. For instance, why did the EPA prepare a plan to take over a private mine

without even informing the owner of the mine? Or, why has the agency not even

considered the bioavailability of lead in determining the health and environmental

hazards of mixture of minerals in the soil? Why has the agency not tested for the

natural occurrence of lead in this mineral rich area? Why does it continue to push

for an expansion of the process when there are no discernible health and environmental problems? What did the agency do with $80 million worth of Indium?

Mr. Chairman, shutting this process down before we have had a chance to answer

these and many other critical questions would be nothing short of irresponsible,

costly and even tragic. For the sake of the numerous impacted communities

throughout this nation, this $7 billion dollar agency requires an independent invesVerDate 11-MAY-2000 13:42 Apr 06, 2001 Jkt 010199 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 E:\HEARINGS\67120 pfrm08 PsN: 67120
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tigatory wing—with much more resources than a shoestring budge of $300,000 and

a couple of public servants expected to cover several investigations at once. I strongly encourage the committee to support an independent ombudsman process, and

keep these numerous governmental abuses of the people at bay. Again, I thank you

for giving me the opportunity to be here today.

Mr. OXLEY. Are there other opening statements?

If not, we now recognize the aforementioned Mr. Tim Fields, Assistant Administrator for the Office of Solid Waste and Emergency

Response with U.S. EPA, and Mr. Robert Martin, the Ombudsman

with U.S. EPA, as well. Gentlemen, welcome.

Mr. Fields, we will begin with you.

STATEMENTS OF TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY; AND

ROBERT MARTIN, OMBUDSMAN, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. FIELDS. Thank you, Mr. Chairman. It is a pleasure to be

here today before both of your subcommittees to talk about this

very important topic, namely the functions of the OSWER Ombudsman at EPA.

I am pleased to be here with Mr. Robert J. Martin, the National

Ombudsman for the EPA Office of Solid Waste and Emergency Response; and I would like to start by just giving a brief summary

of how this function has evolved over the years since Congress enacted it in legislation in 1984 as part of the amendments to the Resource Conservation and Recovery Act.

That office was established to address public inquiries or complaints regarding the Resource Conservation and Recovery Act of

that time. The statutory authority did expire about 5 years later

and EPA, though, believed the function was very valuable so we

agreed to continue this function as a part of EPA’s operation, even

though the congressional mandate had expired.

In 1991, the Office of Solid Waste and Emergency Response expanded the functions of the Ombudsman to include not just the

RCRA hazardous waste and solid waste programs but also Superfund, underground storage tanks and other elements of our national environmental cleanup and waste management program.

In 1995, the Administrator of the EPA, Carol Browner, announced an administrative reform to create 10 Regional Ombudsmen in our 10 regions that would be there to respond locally to

public inquiries or concerns as well.

We fully support the National Ombudsman function in headquarters. That is why, when the statutory mandate for this expired

more than 11 years ago, we agreed to continue it and have since

that time.

To address the evolution of the Ombudsman function, though,

which has expanded in authority based on our administrative policy to do so, we have tried to promote coordination between the National Ombudsman and the 10 Regional Ombudsmen that exist in

the 10 EPA regional offices..

We are now developing new program guidance to supplement

and update the outdated Hazardous Waste Ombudsman Handbook

which we have been operating under since 1987. A work group was

convened last year, including the National Ombudsman Bob MarVerDate 11-MAY-2000 13:42 Apr 06, 2001 Jkt 010199 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 E:\HEARINGS\67120 pfrm08 PsN: 67120
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tin, some of the Regional Ombudsmen, other headquarters and regional officials of EPA, to develop an updated guidance document.

The guidance is undergoing internal EPA review at the current

time, and we hope to publish this in the Federal Register in the

next several weeks, making it available for public comment for 60

days. We then intend to finalize this new updated Ombudsman

guidance in terms of how the EPA Ombudsman both in headquarters and our regions would operate. The Agency plans to also

publish this draft guidance on our EPA Web site to make it more

available to the public as well.

Today, the National Ombudsman responds to numerous inquiries

and complaints about programs administered by our waste programs and environmental cleanup programs both in headquarters

and the regions. For the most part, the National Ombudsman obviously handles cases of national significance or cases where there is

an actual or perceived conflict of interest on the part of a Regional

Ombudsman. The ombudsman’s role is primarily to focus on the

Agency’s practices and procedures and how citizens or other interested parties have been treated under those practices and procedures.

The Ombudsman strives to encourage and promote changes to

policy, practices and procedures that will both impact and address

the concerns of individuals as well as the community as a whole.

I think the Ombudsman has been very successful at doing that

over the years.

The Ombudsman has a wide latitude in terms of selecting and

investigating complaints. The Office of Solid Waste and Emergency

Response recognizes the importance of the Ombudsman function,

and we want to try to make it as independent to the maximum extent possible under our laws and regulations.

EPA steadily over the years increased the funding for the Ombudsman function, and we continue to provide support to not only

the National Ombudsman but also additional support to the 10 Regional Ombudsmen as well, to the tune of about a million dollars

a year.

I believe the Ombudsman program is operating very successfully.

I recognize it can operate even better. I assure you that the Agency

will continue to support the Ombudsman function, irrespective of

whether new legislation is enacted or not. We intend to continue

to provide resources to make the function capable of assisting communities across the country as it has in the past.

I look forward to responding to questions that the subcommittees

may have on this. I think we share a common goal with the two

subcommittees convened today and Mr. Martin, which is to make

the Ombudsman function as effective and efficient as it can be so

that we can meet the needs of citizens across this country.

Thank you very much, Mr. Chairman.

[The prepared statement of Timothy Fields, Jr. follows:]

PREPARED STATEMENT OF TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR, OFFICE

OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY

INTRODUCTION

Good morning, I am Timothy Fields, Jr., Assistant Administrator for the Office

of Solid Waste and Emergency Response (OSWER) at the Environmental Protection

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Agency (EPA). I am accompanied this morning by Mr. Robert J. Martin, the

OSWER National Ombudsman. Mr. Martin and I want to thank the Committee for

the opportunity to appear before you today to discuss the national EPA Ombudsman

program

HISTORICAL BACKGROUND OF THE OMBUDSMAN

The hazardous and solid waste management laws passed by Congress created

some of the most complex programs administered by EPA and the States. Recognizing this, Congress established a National Ombudsman function in 1984 as part

of amendments to the Resource Conservation and Recovery Act (RCRA). Establishing an Ombudsman provided the public with someone to contact with questions

and concerns about the RCRA program. When the statutory authority for the National Ombudsman program expired in 1989, EPA’s OSWER retained the function

as a matter of policy. In 1991, OSWER broadened the National Ombudsman’s scope

of activity to include other programs administered by OSWER, particularly the

Superfund program. The National Ombudsman is located in the EPA Headquarters

office in Washington, D.C. and reports directly to the Principal Deputy Assistant

Administrator for Solid Waste and Emergency Response.

The Ombudsman is authorized to provide information and investigate complaints

and grievances related to OSWER’s administration of the hazardous substance and

hazardous and solid waste programs implemented under the following authorities:

• Comprehensive Environmental Response, Compensation and Liability Act

(CERCLA) or Superfund; • Resource Conservation and Recovery Act (RCRA), including UST; • Emergency Planning and Community Right-To-Know Act (EPCRA) or Superfund

Amendments and Reauthorization Act, Title III; • Oil Pollution Act; and • Clean Air Act, Section 112(r).

In 1995, a Regional Ombudsman position was created in each EPA Regional office

as part of the Agency’s Superfund Administrative Reforms effort. On June 4, 1996,

Administrator Browner formally announced the appointments of the Regional Ombudsmen. The Regional Ombudsmen program, at a minimum, operates in support

of the Superfund program. Depending on the Region, however, the Regional Ombudsman may also provide support to other programs, including RCRA, Underground Storage Tanks (UST), and chemical emergency prevention and preparedness.

We fully support the National Ombudsman program under the jurisdiction of the

Assistant Administrator for OSWER. We believe that the Ombudsman function is

a very important one for the Agency and the public. That is why when the statutory

authorization for the Hazardous Waste Ombudsman function expired, EPA chose

administratively to maintain the Ombudsman function and broaden the scope of the

function.

PURPOSE AND STATUS OF DRAFT GUIDANCE

Soon after Congress established the Ombudsman program, the Agency issued the

Hazardous Waste Ombudsman Handbook to help the newly created National and

Regional Ombudsmen administer, and the public understand what to expect from,

the Ombudsman program. During the initial years of the Ombudsman program,

most of the assistance sought by the public was for help understanding the complicated RCRA program. The Ombudsmen spent most of their time responding to

general questions and directing requests to the appropriate sources. The handbook

reflected this role.

Over the years, the public gained a better understanding of EPA’s hazardous

waste programs. Requests for answers to basic questions became requests for resolution of complaints. The Ombudsman function has evolved to reflect the changing

needs of its clients. The existing guidance no longer reflects the evolution of the Ombudsman function. In the Fall of 1999, the Assistant Administrator of OSWER established an internal EPA workgroup to look at updating the Hazardous Waste Ombudsman Handbook. The workgroup, chaired by Michael Shapiro, Principal Deputy

Assistant Administrator for OSWER, includes several Regional Ombudsmen, the

National Ombudsman, representatives from the Office of General Counsel, the Office of Inspector General, the Office of Enforcement and Compliance Assurance and

several senior Regional Managers. In preparing the updated guidance, the

workgroup met with representatives of the U.S. Ombudsman Association and evaluated and considered guidance documents from this organization as well as other organizations with Ombudsman programs and the American Bar Association’s draft

Standards for the Establishment and Operation of Ombudsman Offices. The

workgroup has attempted to draft guidance which reflects key aspects of various exVerDate 11-MAY-2000 13:42 Apr 06, 2001 Jkt 010199 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 E:\HEARINGS\67120 pfrm08 PsN: 67120
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ternal models in a manner that works for a civil service position within the Federal

structure. We believe the draft guidance will provide for effective and fair implementation of OSWER’s Ombudsman program.

The updated guidance will explain to the public the role of the National Hazardous Waste and Superfund Ombudsman and Regional Superfund Ombudsmen

today, their scope of activity, and the guidelines under which they coordinate and

carry out their responsibilities. The main objective in issuing this guidance is to improve the effectiveness of the program by giving the Ombudsmen, and those who

may contact them, a clear and consistent set of operating expectations and policies.

The guidance is currently undergoing internal Agency review. The Agency expects

this review to be completed in the next several weeks. EPA will then publish a notice in the Federal Register announcing the availability of the draft document and

requesting public comment. I am anticipating a public comment period of 60 days.

The Agency also plans to make the draft guidance available on EPA’s internet

website.

I will now share with you the Agency experience with the operation and role of

the National and Regional Ombudsmen.

THE ROLE OF THE OMBUDSMAN

The Ombudsman is the Agency official designated to receive inquiries and complaints about the administration of an OSWER program. It is important to note,

however, that the role of the Ombudsman is not that of decision-maker nor of a substantive expert for the Agency. The Ombudsman’s role is primarily to focus on the

Agency’s procedures and how citizens and other interested parties have been treated

under those procedures.

The Ombudsman is not an advocate for a community or any person or institution.

Rather, the Ombudsman encourages and promotes changes he/she believes will

serve both the individual and the public interest. The Ombudsman seeks to reform

and improve management practices, policies, or administration of such policies that

he/she believes are inefficient or unfair and that may have given or may give rise

to a complaint.

Generally, the National Ombudsman handles cases of national significance and/

or cases of actual or perceived conflict of interest on the part of the Regional Ombudsman. The Regional Ombudsmen handle the more routine requests for assistance and conduct more informal inquiries to investigate complaints. Nevertheless,

the Ombudsmen may be called upon to serve in a number of capacities: 1) providing

information and facilitating informal contact with EPA staff, 2) conducting informal

fact finding inquiries and developing options to deal with difficult problems, 3) helping to mediate disputes, and 4) making recommendations to Agency senior management regarding procedural and policy changes that will improve the program. The

goal of the Ombudsman is to respond to requests in an appropriate and objective

manner as promptly, informally and privately as possible.

Providing Information

Many members of the public and regulated community either do not know how

to get information about the solid and hazardous waste programs in OSWER or feel

frustrated in their attempts to cope with the complexities of these programs. The

Ombudsman may be asked to help a citizen understand how EPA operates, what

the appropriate laws, rules, or policies are, or how a citizen may directly handle a

complaint. The Ombudsman may answer general questions about any of the programs administered by OSWER, or may direct the person to the appropriate EPA

staff to answer the questions. The Ombudsman may also facilitate the communication between a requester and EPA staff. In doing so, the Ombudsman assists members of the public to gain access to information about the solid and hazardous waste

program that will help them participate more fully in established Agency processes.

Conducting Inquiries

The Ombudsman may look into a requestor’s concerns with respect to any program or requirement under the solid and hazardous waste programs implemented

by OSWER. The purpose of such an inquiry will be to ascertain the facts of the case

and the perspectives of all the involved parties. Since the Ombudsman has no direct

decision-making authority, if he/she finds that a policy or procedure has not been

properly followed or someone has not been treated fairly, he/she may make recommendations to the appropriate Agency officials. In such cases, the Ombudsman

will generally issue a report explaining the findings and supporting the recommendations made. The officials who administer activities being criticized will be

given a chance to review the report prior to its release and attach comments to it.

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Mediating Disputes

Many of the issues brought to the attention of the Ombudsman may be resolved

through facilitated communication or informal mediation, with the Ombudsman

serving in the capacity of a neutral third party. It is almost always in the best interests of those who ask the Ombudsman for assistance and the Agency if a mutually

agreeable solution can be found. If the circumstances seem favorable, the Ombudsman will work with the parties and help them move toward agreement. The role

of the Ombudsman is not to advocate for a particular outcome, but to try to increase

understanding and to assist in the search for appropriate ways to reach closure.

Unlike formal mediation, the Ombudsman always retains the discretion to limit

the issues which will be considered (in formal mediation the issues to be discussed

are left to the parties to decide). Also, unlike formal mediation, the Ombudsman is

as concerned about identifying and encouraging needed institutional reforms as in

solving a specific problem.

Encouraging Institutional Reform

The Ombudsman is in a unique position to improve the management and implementation of the OSWER-related programs. On a regular basis, he/she hears issues,

concerns and criticisms of the programs from a wide variety of sources. From this,

he/she may identify policies and procedures which are causing problems as well as

opportunities for making program operations more efficient or effective. Alerting

senior EPA managers to what may be an unwise policy or practice, or unfair administration of a policy is as important as the resolution of the specific problem. By

making well documented recommendations to EPA program managers, the Ombudsman can point the way to positive institutional change that should prevent or reduce future similar problems from arising in the future.

INDEPENDENCE OF THE OMBUDSMEN

No matter what capacity an Ombudsman is serving in at any given time, the

Agency has worked to ensure the Ombudsmen’s ability to operate independently. As

you are probably aware, one of the main principles an Ombudsman operates under

is the ability to operate independently in determining what cases to work on, how

an inquiry should proceed and what are the findings of a inquiry.

From the time the National Ombudsman was established by Congress, this function has been a federal government employee reporting to a senior Agency official.

Because the Ombudsman is a federal employee, the National Ombudsman cannot

be completely independent in the normal course of relations between supervisors

and their employees. But, OSWER recognizes the importance of an Ombudsman

being and appearing to be independent from the organization he/she is investigating. For example, OSWER has given the National Ombudsman his independence to the maximum extent possible. The Assistant Administrator (AA) for OSWER

does not monitor the Ombudsman’s workload. The AA does not select which cases

the Ombudsman will take, nor directs the Ombudsman how to investigate a complaint. The AA does not interfere with or attempt to influence the Ombudsman as

he formulates his findings and recommendations.

The National Ombudsman reports to Deputy Assistant Administrator (DAA) Michael Shapiro. As his supervisor, DAA Shapiro is the approving official on all procurements requested by the National Ombudsman. Generally, for ongoing investigations, funding is approved on an as-needed basis. Where significant resources are

requested, DAA Shapiro may become more involved in a case so he is able to determine that the resources requested are available and that the procurement is the effective mechanism to accomplish the Ombudsman’s objective.

FUNDING FOR THE OMBUDSMAN PROGRAM

The EPA has provided adequate resources (funding, person-years, etc.) for the

Ombudsman function since it was created. In all cases when the need has arisen,

additional funds have been provided to the Ombudsman function. That includes the

assignment of staff to support this function and the assistance of the ten Regional

Ombudsman as needed. In addition, the Ombudsman, depending on the site and

issues under review, has accessed the technical expertise of the EPA’s Environmental Response Team to supplement his investigative efforts.

Over the years, funding for the National Ombudsman function has steadily increased despite the fact the Superfund program budget has been reduced. In fact,

funding has gone from roughly $117 thousand in fiscal year 1993 to over $519 thousand in fiscal year 2000. The Regional Ombudsman function is funded at roughly

$1 million a year, under the ten Regional budgets.

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ACCOMPLISHMENTS OF THE PROGRAM

The National and Regional Ombudsmen receive many calls for assistance each

year—ranging from routine questions about hazardous waste laws to specific complaints about unfair practices conducted at a site or facility. The Agency has frequently adopted recommendations put forth by the Ombudsman program. Before I

close, I would like to share with you an example which demonstrates the success

of the Ombudsman program.

In 1999, local residents asked the National Ombudsman to look into the EPA

Superfund program activity associated with the Shattuck Chemical Site in Denver,

Colorado. Community members did not feel the remedy adequately protected public

health and the environment. As part of his investigation, the National Ombudsman

held three hearings to hear the concerns of community members. He also interviewed government officials, local residents, and EPA staff and reviewed the administrative record of the site. In October 1999, the National Ombudsman issued his

draft recommendations. Subsequently, EPA selected an alternative remedy for the

Shattuck Chemical Site.

Is the program operating successfully? I believe so. Generally, as a result of the

Ombudsman’s involvement, a better decision is reached, communities are satisfied

with the outcome and public health and the environment are protected. The Agency

will continue to support the Ombudsman function and make resources available so

that it may continue to assist communities across the nation.

Mr. OXLEY. Thank you, Mr. Fields.

Mr. Martin.

STATEMENT OF ROBERT MARTIN

Mr. MARTIN. Thank you, Mr. Chairman. I am pleased to be here

this morning to appear before you and the honorable members of

this committee.

In speaking just extemporaneously for a moment, I have been

doing this job for 8 years; and in the course of doing that job I have

talked to a lot of people, and I have met a lot of people all over

the country and meeting with those people and working with them

has enriched my life. I want to recognize them as I appear before

you today, and I am very glad that you will be hearing from some

of them in the course of this hearing.

I have a few things which I would like to speak to in the spirit

of doing our job better and in doing what the EPA must do, which

is to protect human health and the environment, that is its mission, particularly in the Superfund program. As we do that, I think

it is critically important that we listen to people more, because I

don’t feel we have listened enough, and it is a very hard job to do,

to listen.

I also feel that we need to be more compassionate, because we

have so much power in the Superfund program. The Agency has so

much power in that program, and we need to feel how we affect

people’s lives every day in the exercise of that power or by not exercising that power.

Third, I feel we need to be more thorough in our job. There have

been countless times when I have undertaken cases in different

parts of the Nation where I have heard that we have missed this

or have missed that, and I think it is very important to catch it

all in the front end. I think that people in the end want to know

how big of a problem they are facing, if they are facing one. They

may not be able to fix it right away, we may not have enough

money, may not have enough resources, it may take a long time,

but we need to stay in a place of truth with that, with people. And

45

also, obviously, where there may not be a problem we should not

be focusing extraordinary resources to examine that.

So with that being said, I am very honored to be before you today

and would be glad to respond to your questions, not only in this

session but individually as well as afterwards and perhaps in meetings. Thank you sir.

Mr. OXLEY. Thank you, Mr. Martin, and job well done for 8

years. We appreciate your sincerity and your commitment to your

job.

Mr. Fields, let me first indicate to you what appeared to be good

news last week when the announcement came from U.S. EPA that

the Keystone landfill site in Pennsylvania had been adjudicated

and there was a settlement, and what appeared to be on the surface very good news turned out to be, based on the timing at least,

rather interesting, to say the least.

Let me quote you from Mr. Campbell, Bradley M. Campbell, I am

sure you know the EPA Administrator for Pennsylvania, for eastern Pennsylvania. He says, quote, EPA is pleased to conclude this

extensive, expensive, contentious litigation. We are eager to shift

more of our attention and resources from the courtroom to cleanup—EPA Administrator Bradley Campbell—but Congress still

needs to address the basic deficiency in the Superfund that allowed

this huge number of defendants to be sued. And indeed there were

over 130 original defendants that ballooned to 580 additional parties.

He goes on to say, today’s settlement reflects the fundamental

Superfund reforms which made it fair to the little guys who never

should have been sued by the large polluters in the first place, said

Steve Herman, Assistant Administrator for EPA’s Office of Enforcement, Compliance and Assurance.

Those quotes sound familiar, but most of those came from this

side of the dais. By using these reforms, we protected small waste

contributors from costly third-party lawsuits and deterred similar

litigation in future cases.

It was particularly interesting because about that time, as you

know, we were working with EPA to craft legislation that would

not only take care of the small business folks at the Keystone landfill, including the now famous Barbara Williams and her restaurant, but indeed all of those folks who stood in their shoes or

stand to be in their shoes over the next few years unless we solve

this incredible morass that has encompassed many of these small

business people whose only sin was sending chicken bones to the

local landfill.

Now, as you know, we had that legislation, H.R. 5175, on the

floor last week, and we worked very hard in trying to assuage some

of the concerns that EPA had with the bill. But, frankly, I am disturbed that at the moment we thought we could move forward in

a bipartisan manner your staff refused to meet with my staff, even

though we requested a meeting to work on some of those changes.

Matter of fact, the changes we made in the original legislation of

the 1999 text were changes that EPA had requested.

What I am going to do is give you a copy of the bill that was unable to secure two-thirds votes in the House last week and ask you

by the end of the week if you can make some written comments

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back to this committee as to why EPA chose to oppose this very

common-sense legislation, particularly in the face of statements

that came out of the EPA about—beating their chest about how

successful they were in this settlement in Pennsylvania.

I might also point out that, despite all of the apparent good work

that was done, the aforementioned Barbara Williams, in actuality

this settlement does nothing for her. As a matter of fact, it preserves the right of Waste Management to pursue their suit against

her.

So let me first ask if you can provide us with some information

in that regard, regarding the legislation and how it squares with

that settlement in the statements therein, and also whether in fact

that that is correct that Barbara Williams is still subject to litigation after over 5 years in this predicament.

Mr. FIELDS. Okay. I will be happy to—the three points you made

there, I will be happy to provide written comments back on H.R.

5175 and the administration’s concerns about elements of that bill

that we would have, you know, we would have concerns about and

we ran out of time.

[The following was received for the record:]

Attached is a letter from Timothy Fields, Jr., Assistant Administrator, Office of

Solid Waste and Emergency Response, which provides legislative language that addresses the Superfund liability of small parties.

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Mr. FIELDS. Obviously, as the Administrator has said, Mr. Congressman, as I have said many times, we do support targeted

Superfund liability relief for small parties. However, this bill was

different than the one that we were working on in terms of a draft

last fall, and we ran out of time in terms of being able to resolve

all of our issues.

We want to continue to work with this committee to provide liability relief for small businesses, and we would like to continue to

work with you and others in Congress to do that in the future.

However, we do have some concerns, and I think that was communicated in a letter the Administrator sent to Congress, went to

Congressman Tauzin and others on September 22.

Two other points you made and I want to make clear, and I

think this is a comment that Congressman Shimkus alluded to in

his opening remarks. I want to make very clear that the statement

is not correct about the Keystone settlement and the vulnerability

of Barbara Williams’ former restaurant. My understanding is that

she has now sold that restaurant.

But in the consent decree, we explicitly required that the selling

parties, Waste Management, the Noels, they would have to waive

their claims against all parties, including the nonsettlers like Barbara Williams. We included similar waivers in our prior settlements with the original generator defendants, the selling third and

fourth parties and the de micromis parties.

The truth is, we have done everything in our power to protect

Barbara Williams and those who are similarly situated. No one

who settled with EPA can sue any of the nonsettlers. So we want

to clarify that, because we have seen some statements by NFIB

which were incorrect on that point.

Mr. OXLEY. If I could interject, that statement came from EPA,

not from NFIB; is that correct?

Mr. FIELDS. No. EPA is trying to set the record straight. We saw

a statement from NFIB that, despite that settlement signed on

Keystone, that Waste Management could still sue Barbara Williams.

I want to set the record straight and say EPA’s position is and

the settlement language says specifically—if you want I can give

you the cite; it is in section 24, paragraphs 179 through 185—it

makes very explicitly clear that the selling parties cannot sue Mrs.

Williams or any other nonsettlers as part of this consent decree

that has been signed. That is our position. That is our reading of

that consent decree.

Mr. OXLEY. Now is your reading of our bill that Barbara Williams and all of those folks would be relieved of liability straight

up?

Mr. FIELDS. Your bill and that particular element of your bill

that you sponsored, Mr. Chairman, H.R. 5175, it would solve the

problem of the small business like Barbara Williams who

generated——

Mr. OXLEY. How come we couldn’t get 290 votes for it?

Mr. FIELDS. H.R. 5175 was not the same bill that we were discussing.

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Mr. OXLEY. No, it wasn’t. Actually, we accommodated EPA on

several issues, including, if I might point out, applying the de

micromis exemption prospectively.

Now do you agree that H.R. 5175 addresses this concern? Because that was the concern that we were told by EPA—and we specifically addressed that.

Mr. FIELDS. Mr. Chairman, you did address that concern.

I do want to point out, though, that the bill we were discussing

with NFIB, that was not really a bill but a draft proposal of October, 1999, that was different than H.R. 5175, was introduced this

session. It is true that you and your staff worked with us heroically

to try to address a lot of our concerns. We do still have some lingering concerns, though.

For example, the Administrator is concerned that the burden of

proof has shifted to the government. The government must prove

that a business that sent over a hundred pounds of waste—that a

business that sent over a hundred pounds of waste is not exempt.

You know, I will give you comments specifically on the bill this

week, but there were elements in this bill that we could still not

support.

Mr. OXLEY. So it is EPA’s position that the burden of proof

should be on Barbara Williams and not on the Federal Government, is that your position?

Mr. FIELDS. Well, we don’t think that the government—— Mr. OXLEY. Is that yes or no? Is that yes or no?

Mr. FIELDS. The answer is, we do not believe that the government should have to prove that a business sent over a hundred

pounds of waste.

Mr. OXLEY. That is a unique and very interesting theory in

American law. Because you know when I went to law school a long

time ago, we studied that people were innocent until proven guilty

and that the burden lay on the government to prove that those people were indeed guilty. So, basically, the EPA is turning this legal

concept on its head, is it not?

Mr. FIELDS. Well, the problem, Mr. Chairman, is that oftentimes

the business records are not—oftentimes not available. This would

cause litigation because we would be disputing whether or not—— Mr. OXLEY. You wouldn’t want litigation. We certainly haven’t

had a whole lot of litigation.

Mr. FIELDS. We want to avoid that, and we think this particular

element of the bill would encourage litigation.

Mr. OXLEY. Would encourage litigation. You mean, even more

litigation than we already have?

Mr. FIELDS. Because of the unavailability of adequate records to

document how much material actually went to a material site.

Mr. Chairman, we will be happy to give you some comments by

the end of the week as you request on your bill, but I wanted you

to share with you that, as the Administrator said in her letter,

there are elements like that we believe would increase transaction

costs and promote litigation. We will be happy to give you a letter

for the record that gives you specific elements of how we believe

that bill, H.R. 5175, would promote litigation and increase transaction costs. That is what you are requesting. We are willing to do

that.

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Mr. OXLEY. This is, as the Four Tops sang, ‘‘the same old song,’’

Mr. Fields, 1965, I think, by the way.

Mr. FIELDS. I heard it.

Mr. OXLEY. But we have been through this, and it just seems to

me from where I sit that our efforts to try to make some common

sense in this Superfund law which we have been at for it seems

my entire adult life, it is always a moving target. If it is not the

de micromis settlement prospectively, then it is burden of proof.

So I get the sense that we are in a game where the goal posts

keep being moved on us, even like Charlie Brown, where we get set

to kick the field goal and Lucy, a/k/a Carol, pulls a football out and

I end up flat on my keister.

You know, I am getting pretty damn tired of that. It is the same

old story. We try to get a reasonable bill on the floor of the House

that was supported by virtually all Republicans and 46 or so Democrats, that made a lot of sense and would get these small business

people out of the litigation nightmare, not create more litigation,

create less litigation. This is not brain surgery here. Yet we found

a situation where we couldn’t get it done because somebody had a

political agenda, and I just find that unfortunate.

Let me yield to the gentlelady from Colorado.

Ms. DEGETTE. Thank you, Mr. Chairman.

Let me just say that that particular bill, H.R. 5175, when it came

to the floor was not a bill that the minority had seen or had the

opportunity to work on. People like me really felt like it was a good

step toward resolving some of these liabilities for the small folks

like the restaurant owners who have been mentioned today and

others. However, there were some other details in the bill that

were really problematic.

I think we could have worked those details out had we known

about it before it came to the floor, but, as we all know, Superfund

is very technical. There is a long established body of law, and the

last thing we want to do is upset the equities in existing laws

which would encourage litigation.

So I would offer—Mr. Chairman, for next year I would offer personally to work with you on this issue. It is an issue, as you know,

I have worked on a lot; and I will guarantee you if we come up

with an agreement I won’t pull the football out and leave you on

your keister.

Mr. OXLEY. Thank you.

Ms. DEGETTE. You are welcome, Charlie.

Let me get back to the topic at hand a little bit. I would like to

ask Mr. Fields, you heard me talk in my opening statement about

these new findings by the Department of Energy about some States

that processed radioactive materials; and I am wondering if the recent disclosure by the DOE needs to be investigated by the EPA

as regards the Shattuck site so that we can properly characterize

and dispose of the waste.

Mr. FIELDS. Yes, Congressman DeGette, we are including

Shattuck. We initially, through the USA Today article, had identified 153 sites. We have now discovered in discussions with DOE

several hundred others. We are investigating all those sites, one of

which was Shattuck; and the Department of Energy is also doing

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a file review on a parallel track to determine what information

they have about this waste disposal area so—as well.

So I assure you there is an ongoing investigation by EPA, DOE

and others trying to assess exactly what is the situation regarding

radiation waste at Shattuck in light of this disclosure in recent

weeks.

Ms. DEGETTE. How will this affect the timetable for removal of

waste at Shattuck?

Mr. FIELDS. We don’t believe it will affect, in any way, the timetable for removal of waste. We are in the design phase right now.

We committed to the community we would have this material moving away within 2 years. That is the same time schedule we are

on. We are doing this effort aggressively, on a parallel track, with

the design being done.

We will have to make sure, however, the waste is properly characterized. Any waste that goes offsite will have to be characterized

to determine exactly what is there and whether or not the facility

we are going to take it to is properly licensed to take that material.

So it is critical we get this investigation that you alluded to done

quickly. So that can factor into the schedule for moving this material offsite.

Ms. DEGETTE. But it is your view today the removal schedule

should not be affected.

Mr. FIELDS. We do not intend for the removal schedule to be updated.

Ms. DEGETTE. I think that is pretty clear.

Mr. Martin, let me ask you if you have any sense why your office’s investigation of the Shattuck site did not uncover any of the

information that the DOE just released.

Mr. MARTIN. When I undertook my review of the Shattuck site,

which began last June, we did meet with officials from the company, this W.S. Shattuck Company, were provided a tour of the

site; and since that time I can tell you I have had suspicions that

the waste at the site was other than as described on the basis of

questions that we have asked and also on the basis of documents

that we reviewed in the administrative record in the region. It is

a concern that we have had, and we are investigating.

Ms. DEGETTE. Mr. Martin, to follow up a little bit, I know that

there were a number of statements by you and by the chief investigator about potential criminal activity at the Shattuck site made

in the press and other places. I am wondering if, to your knowledge, there have been any reports made to local law enforcement

or Federal law enforcement officials about criminal activity or anything you have uncovered at the site.

Mr. MARTIN. I made no statements about potential criminal activity in the course of the hearings which we undertook for the

Shattuck site. However, to the extent we have any reason to believe through our review of the record or otherwise by talking to

officials within the region, the State or the company that there may

be, you know, criminal activity, we will refer them to the Inspector

General of the EPA.

Ms. DEGETTE. But to your knowledge no referrals have made to

date.

Mr. MARTIN. I have made no such referral.

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Ms. DEGETTE. Thank you.

Let me ask you generally, I know the ABA is looking at general

Ombudsman standards and the subcommittee issued a report this

past July to the American Bar Association House of Delegates recommending a set of standards for the Ombudsman office to follow.

On the one hand, the recommendations stated that the Ombudsman should not conduct an investigation that substitutes for administrative or judicial proceedings; and an Ombudsman review

should not serve as the foundation for disciplinary activity or civil

action or a determination of a violation of law or policy. The report

goes on to say, and, by the way, the subcommittee says that the

ABA supports the greater use of ombudsmen; and it says that ombudsmen should review allegations of unfairness, maladministration, discourteous behavior, incivility, inappropriate application of

law or policy, inefficiency or decision unsupported by fact.

I am wondering, Mr. Fields, if you can tell me, does the EPA Ombudsman follow these guidelines? And if not, do they intend to in

the draft report that you are working on? And if not, tell me how

it operates differently.

Mr. FIELDS. Well, the EPA has looked at the American Bar Association Ombudsman guidelines. We have looked at this report that

you have referred to as well. We are looking at all those sources.

We are looking at the guidelines of the U.S. Ombudsman Association. We are looking at those elements of those guidelines that are

the best components, and we intend to apply those and incorporate

those into the EPA guidance we are developing that we will make

available to the public shortly.

We think there are certain elements of those guidelines that fit

the EPA structure, but there are some elements that do not. Complete confidentiality, for example. We cannot provide complete independence, for example. We are working to try to make sure those

elements of those various models that have been published by various organizations including ABA are incorporated into our guidance that we are developing and make sure that they are compatible with Federal law and EPA policy and procedure.

Ms. DEGETTE. Mr. Martin, would you have any comment on

that?

Mr. MARTIN. Yes, I would.

I served and still serve on the Working Committee for the American Bar Association for Ombudsmen, and I was integrally involved

in the development of the language which you have spoken of just

a moment ago. And I think the direct point is that once an Ombudsman becomes an adjudicatory body it is no longer an Ombudsman. Therefore, an Ombudsman cannot be a judge, cannot make

recommendations which are binding upon the entity that it reviews. This function has never done that and I don’t believe ever

will.

Mr. OXLEY. Gentlelady’s time has expired.

The gentleman from Florida, the chairman of the Health Subcommittee.

Mr. BILIRAKIS. Thank you, Mr. Chairman. I will just continue in

that vein.

In 1990, as I understand it, the Administrative Conference for

the United States recommended that all government agencies with

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frequent contact with the public consider establishing an Ombudsman service. The conference also indicated that, and I quote, Mr.

Fields, ‘‘it is important that Ombudsmen be independent of the line

offices and that they are seen as independent.’’ Well let me just say, this is difficult. It is difficult for those of

us who have worked with, and developed relationships with, the

Ombudsmen over many months, to get them in a position where

they are sitting here to the right hand of their boss, not under oath

and asking them to basically say what is in their hearts. And in

all honesty—that makes it very difficult for me.

Because, let me just put it this way, Mr. Fields, with all due respect—this is not intended to be any kind of a threat or coercion

or anything of that nature. I don’t really know what Mr. Martin is

going to testify to here today. He was asked to testify, and apparently accepted the invitation to testify. Ordinarily, a written statement is submitted to this committee prior to that testimony. We

did not receive a written statement. We were told he was not going

to be able to testify. Then, of course, this morning he is here to

make an oral statement. You know, a reasonable person would certainly read an awful lot into all of that.

I would hope that no matter what happens here today or during

the process of reauthorizing and maybe putting into law specifics

in terms of the functions of the Ombudsman, that there would not

be any repercussions on Mr. Martin or any members of his staff.

And I know that you will tell me there won’t be, but you and I

know that sometimes things are said and other things happen,

whether the person who made the comment means it or not.

You were asked, Mr. Martin, to testify before this committee.

You did not provide a written statement. Now you are here today

to speak orally. Is there anything you would like to share with this

committee in that regard? It is true you were invited to testify.

Mr. MARTIN. That is correct, Mr. Chairman.

Mr. BILIRAKIS. It is true that you planned to testify.

Mr. MARTIN. That is correct, Mr. Chairman.

Mr. BILIRAKIS. And it is true that that changed and then this

morning you are to give an oral statement.

Mr. MARTIN. There was confusion, Mr. Chairman, about the submission of testimony to the committee. I had a discussion with our

Office of Congressional Affairs in which they indicated that a statement or statements would be prepared for Mr. Fields and myself.

That discussion occurred around September 23. I then understand

from my staff that there had been a joint statement prepared by

the Agency as late—— Mr. BILIRAKIS. Joint statement for the two of you.

Mr. MARTIN. Yes, sir, yeah. That had been prepared by the Agency.

Mr. MARTIN. Yes, and as of last evening, in fact, the joint statement was still prepared; and then I understand a statement was

submitted that was from Mr. Fields alone.

Mr. BILIRAKIS. Did you feel that you should provide your own

statement?

Mr. MARTIN. I feel the Office of Ombudsman—I feel, as Ombudsman, that I should be able to provide my own statement to this

committee. I understand that because of legal difficulties within

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the agency, perhaps the administration, any such statement would

have to be cleared through the Office of Management and Budget

and perhaps other entities as well. I understand those difficulties.

But to answer your question, yes, I do feel I should be able to.

Mr. BILIRAKIS. Had you prepared your own statement and went

through the process and just didn’t make it through the process?

Mr. MARTIN. No, sir. I was led to believe that a joint statement

would be prepared and submitted.

Mr. FIELDS. Mr. Chairman, could I enter this one and clarify

this, just to add to this question?

Mr. BILIRAKIS. I suppose so.

Mr. FIELDS. Mr. Martin—and I—and we apologize. There was

some confusion. Mr. Martin was on leave, and we did talk to staff

in the Ombudsman. We assumed that one statement from the administration—obviously, Mr. Martin was not restricted in any way

from being able to communicate with this committee.

We traditionally prepare one statement that allows several witnesses—whether it is me and Steve Herman or me and Lois

Schiffer—when we get letters from committees of Congress we traditionally put together one statement and have both witnesses

there to respond to questions. But I assure you there was not any

attempt to try to stifle a statement from the Ombudsman.

Mr. BILIRAKIS. Mr. Fields, with all due respect, again, I don’t

think there is any confusion. The letter of invitation is right here;

and it is pretty darn clear, the form of your testimony and that sort

of thing.

You know, it gets again to the independence aspect. It gets to the

problems that led up to this hearing, the problems that we ran into

in our different sites in Denver, in Idaho and Florida, et cetera.

You know, you made the comment, sir, that the Ombudsman’s

Office is operating very successfully. Maybe some people would say

in the eyes of EPA maybe too successfully. You know, I was part

of this committee when we did the Superfund bill, as was Mr.

Oxley. Not too many people up here were here at this time.

The Superfund bill took up all hours of several days and nights,

and it was a very contentious type of a thing. It shouldn’t have

been, I suppose, but it was because partisanship always plays a

part. But I do remember very clearly back when the Ombudsman

concept was being brought up and a lot of us ended up supporting

the Superfund bill; and many people who, frankly, were being

blasted by various special interest groups were thanked after it all

was done.

But in my mind I am not sure they understood what the role of

the Ombudsman would be in Superfund program, and I sure understand it now from what I have seen in Tarpon Springs. Thank

God for it and thank God for those people who—I wasn’t one of

them—came up with the concept. I suppose I supported it. I can’t

remember back to 1984. But my point is it has probably worked too

well from what I have seen.

Now, you know, we have seen documentation, Mr. Fields, basically withholding funds from the Ombudsman’s office. Maybe they

are doing their job too darn well. I don’t want this to be a militant

type of hearing. Do you agree that the Ombudsman—as you have

stated, Mr. Fields, is not an advocate for a community or any perVerDate 11-MAY-2000 13:42 Apr 06, 2001 Jkt 010199 PO 00000 Frm 00074 Fmt 6633 Sfmt 6602 E:\HEARINGS\67120 pfrm08 PsN: 67120
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son or institution? That is in your testimony. I believe you have

said that.

Mr. FIELDS. That is in my testimony. That is my statement.

Mr. BILIRAKIS. It has also been in some of the communications

I have read that your office sent out. Mr. Martin, do you agree with

that?

Mr. MARTIN. An Ombudsman should not serve as an advocate for

any particular person but can serve as an advocate for—to be

frank, the truth, after an investigation is under way or has been

performed and I may find facts that I believe are undeniable and

if I feel those facts are being ignored by the Agency, I then advocate for those facts.

Mr. BILIRAKIS. When you feel that way, what sort of response are

you accustomed to receiving from the Agency?

Mr. MARTIN. Well, the process at times can be long and arduous,

but I feel that over the course of the past 8 years the Agency has

adopted many of my recommendations—I would say 70 to 80 percent.

Mr. BILIRAKIS. Mr. Fields, just one last question. My time has expired. I appreciate the Chair’s indulgence. Do you agree that the

Office of the Ombudsman should be reauthorized?

Mr. FIELDS. We have no problem with the Office of the Ombudsman being reauthorized. We do have concerns with some of the legislative proposals, though, that would add elements to that reauthorization.

Mr. BILIRAKIS. In other words, you feel that your agency should

continue to control their actions.

Mr. FIELDS. No. We think, though, that the ABA model statute

is not the appropriate guideline to embody as the overarching body

for the Ombudsman activities. We think there are elements of

those provisions that cause problems for a Federal Government

Ombudsman, but we support the Ombudsman function being reauthorized. We think it is a valuable function. We would continue to

operate this function irrespective of whether or not Congress reauthorizes this legislation.

Mr. BILIRAKIS. I would like to get into funding and that sort of

thing. My time has expired.

There will be further questions that I and others will be submitting to you; hopefully, you will respond to those in due time.

Thank you, Mr. Chairman. I am sorry to have taken up so much

time.

Mr. OXLEY. Time of the gentleman has expired.

Chair now recognizes gentleman from Wisconsin first, right? No,

the gentleman from Ohio, Mr. Sawyer.

Mr. SAWYER. Mr. Chairman, I was worried that you had forgotten where I was from for a second there.

First of all, let me say thank you to both of you gentlemen for

being here. It is good to see you both.

Let me direct my first question to a matter of specific history

within my district regarding the industrial excess landfill. Back in

1997 the concerned citizens of Lake Township, who had been working on the issues surrounding that site for some time, asked then

Senator John Glenn and me to intervene on their behalf with the

Agency to allow them to conduct tests of soil and water site. After

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more than 6 months, in August 1997, we obtained permission for

the testing to begin. I thought that was particularly—a particularly

good idea because up to that time test results had been problematic.

Just about the time that the test permission was obtained, that

same citizens group determined that it really did not want to undertake tests. Instead, they requested a review by the Ombudsman.

That request was denied, and I pressed for the Ombudsman’s participation. Senator Glenn at that point withdrew from that request,

feeling that until the tests had actually been conducted he didn’t

want to pursue another avenue of inquiry.

I had hoped at the time that the Ombudsman could become in

its very special way an active participant, not just reviewing the

history of the site but, more importantly, in examining the site to

decide how best to protect the public health and safety and the confidence of the residents in the area. So I pleaded the case with Administrator Browner, and the Ombudsman was given permission

for a preliminary review in September 1998.

Mr. Martin, you advised me that your findings would be available shortly. You came to my office in October 1998 and repeated

the same assertion. In January 1999, you conducted a hearing, all

of which I am very grateful for. We met again in the spring of 2000

in May of this year when you suggested that your findings were

imminent. Can you tell me what shortly or imminent means?

Mr. MARTIN. Means this week, sir.

Mr. SAWYER. Does it mean this week?

Mr. MARTIN. Yes.

Mr. SAWYER. I am looking forward to that. It has been frustrating as you, I am sure, can appreciate, particularly as we have

seen other avenues of resolution move forward along parallel

tracks.

Mr. Fields, has it been your experience that this kind of timetable is normal?

Mr. FIELDS. Well, obviously, the Ombudsman has a lot of major

cases that are before him. I am sure that Mr. Martin has been—

being the good public servant he is—is trying to balance all those

priorities he has to deal with. He has a number of cases involving

Superfund and RCRA sites across the country, and many members

on these two subcommittees are aware of those cases. So I know

that the history of the IEL matters go back more than 10 years.

I do want to say one of the reasons it took a while to even initiate the Ombudsman review was because this site, as you know,

has been subject to four major reviews even before the Ombudsman

got involved—the Science Advisory Board, the Office of Inspector

General, Clean Sites Incorporated, EPA’s radiation labs. So it is

probably one of the most studied Superfund sites in the history of

EPA.

But—I look forward to the Ombudsman’s report, but I do know

that, you know, Mr. Martin does have to balance a lot of major

cases all going on at the same time in trying to make judgments

as to which ones he does first, but sometimes the cases do get delayed necessarily just because of the need to balance competing priorities across the country.

Mr. SAWYER. Mr. Martin, do you have a comment?

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Mr. MARTIN. Yes, sir.

I thank you for your patience and your forbearance. I also thank

you for your intervention. Because when the request for my help

came from citizens in your community, I was denied by Administrator Browner, and you did intervene, and that was a successful

intervention.

Since that time, yes, I have done a public hearing in the community. I have completed my review of the reviews that Mr. Fields

had just spoken of, and I am prepared to sit down with you this

week and give you my preliminary recommendations.

Mr. SAWYER. I look forward to counselling with both of you when

that report becomes available. Thank you very much.

Mr. MARTIN. The issue of resources—— Mr. SAWYER. I do understand that.

Mr. Chairman, I have been asked to pose one further question

by the staff, if I might. The question revolves around the question

of whether the Ombudsman and his employees have arrest powers

and the right to take an individual into custody. This centers

around an event on June 5 in a town meeting in St. Petersburg,

Florida, where the chief investigator is characterized here as giving

the Miranda warning to two EPA employees from Region 4.

I am not an attorney, but to my knowledge that warning is only

given in the case of a criminal investigation. Was this intended to

be a Miranda warning? Let me read it to you from the record.

The chief investigator speaking said, you have the right to remain silent. You have the right to counsel. Anything you say may

be used against you in a court of law. Proceed to the witness.

Mr. FIELDS. Is that for me or Mr. Martin?

Mr. SAWYER. It is for both of you.

Mr. FIELDS. Your question is, does the Ombudsman function

have subpoena powers or—— Mr. SAWYER. Or arrest powers.

Mr. FIELDS. The Ombudsman function, as currently constituted,

does not have those authorities or powers.

Mr. SAWYER. What would be the purpose of a Miranda warning

then?

Mr. FIELDS. I will have to defer to Mr. Martin on that. I was not

at the hearing. I will let Mr. Martin speak to the purpose of the

statement on June 5.

Mr. MARTIN. I will be glad to respond, sir.

To be clear, no, the Office of Ombudsman—the Ombudsman

function has no arrest powers, has no detention powers, does not

do criminal investigations.

I want to get to the specific point of what was said in the context

of the hearing that I did in Tarpon Springs, Florida, earlier this

year where the issue of the warning arose.

Prior to that meeting, Mr. Kaufman, who serves as my chief investigator, had met with staff from our Office of Inspector General

with whom I have had a working relationship for many years in

many cases; and I have done criminal referrals to the Office of Inspector General. Mr. Kaufman was advised—and I would also like

to note that he has really the firsthand testimony which can be

provided on this issue—was advised, and he is present behind me,

that it may be necessary for us to give certain warnings to preserve

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a potential criminal case that the IG would do in the event we

made a referral after completion of our investigation.

Since that time, the Office of Inspector General, at our request

and at the request of Mr. Fields, has provided us with a memorandum of instruction on when warnings can be issued.

Mr. SAWYER. Thank you very much.

Ms. DEGETTE. Would you yield?

Mr. SAWYER. I would, but if you could share with us that instruction.

Mr. FIELDS. We will be happy to share this for the record. It is

a memo dated September 12, 2000, from the Office of Inspector

General that we will be happy to provide for the record. Mr. Kaufman has also provided a response to this memo as well, and those

could be provided for the record to this—to both subcommittees.

[The following was received for the record:]

Attached are two memorandum, the first is from Mark Bialek, Counsel to the Inspector General to Michael Shapiro, Principal Deputy Assistant Administrator. The

second is from Hugh Kaufman, Senior Engineer to Mark Bialek. These memorandum explain the EPA Inspector General’s position in regard to whether the

OSWER National Ombudsman has subpoena or arrest power.

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Mr. SAWYER. Let me yield to the gentlelady.

Ms. DEGETTE. If the gentleman would yield, I, in fact, am a lawyer and used to do a fair amount of criminal work.

Frankly, the administration of the Miranda warning by someone

who has no law enforcement or administrative authority is not

going to be meaningful at all in a court of law. Because a knowing

waiver can’t be made by anybody who might give perjurious testimony or testimony that would cause them to self-incriminate. So,

therefore, I would suggest, Mr. Fields, when you develop your new

standards you include this issue in your new standards. Because

unless you have an agent of a Federal, local or State law enforcement agency to administer the Miranda warning, this isn’t going

to have any effect anyway.

Mr. FIELDS. I agree—Mr. Chairman, I will respond quickly.

I agree with that, and it has been clarified now in this memorandum that came from the Office of Inspector General that only

qualified Office of Inspector General personnel and criminal enforcement division personnel from the Office of Enforcement have

the power and the authority to conduct investigation of potential

criminal violations and administrative misconduct and issue such

warnings, as you just pointed out; and that will be made explicitly

clear in future guidance.

Mr. OXLEY. Gentleman’s time has expired.

The Chair now recognizes the gentleman from Illinois, Mr.

Shimkus.

Mr. SHIMKUS. Thank you, Mr. Chairman.

Mr. Martin, I am glad that you are here. You have a very gentle

spirit, and I say that with all due compliments because I think you

probably need it in that job.

Also, we, as Members of Congress, there are 435 ombudsmen,

and this is our job and in many different areas. This is why I have

taken on the Quincy issue so fervently. I find it hard to be an effective Ombudsman if you are not even allowed to provide your own

written statement. How can you be totally independent?

I understand that it would have to get vetted through some folks,

but I just find that symptomatic of a problem that really, Mr.

Fields, I hope you end up addressing at some time.

Mr. Martin, who is giving you advice behind your—who is the

gentleman behind you with the beard and glasses and from what

office does he come from?

Mr. MARTIN. It is Mr. Kaufman with the Office of Solid Waste

and Emergency Response which Mr. Fields is representing and

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which I am in, and he has served as my chief investigator in a

number of cases.

Mr. SHIMKUS. Is he in the Office of the Ombudsman or is he in

Mr. Fields’ office?

Mr. MARTIN. He is technically in Mr. Fields’ office, because my

position description is such that I have no authority to supervise

any EPA employees.

Mr. SHIMKUS. I thank you. I think that is also a telling issue of

some independence or lack thereof.

Mr. Fields, how many times have I asked for some language from

you in a hearing of this sort to relieve small business, provide them

some liability protection? I can remember two times, and I can remember two times you providing the affirmative action assurance

that you would provide me or this committee some language. Have

I ever received language?

Mr. FIELDS. We have worked on language with committee staff,

Mr. Congressman. I don’t recall us providing language specifically

to you. I do know that we had worked on language, but I don’t recall whether we provided it.

I would just make one quick—this will be 30 seconds—just to

clarify that Mr. Martin, his statement would not have to be cleared

by any of the administration to submit a statement. That is not a

requirement we have in terms of Mr. Martin being——

Mr. SHIMKUS. Let us don’t go there because, obviously, it didn’t

happen today.

I would like to place in the record statements from the NFIB concerning EPA’s lack of leadership on small business relief legislation.

[The information follows:]

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Mr. SHIMKUS. I would also like to show you—and I am referring

to Mr. Fields—and place in the record some draft text that we were

provided in November 1999.

[The information referred to follows:]

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82

83

84

85

Mr. SHIMKUS. On top of the first copy of the fax line, it says the

Office of Administrator at EPA. The first copy is incomplete. So I

have an additional complete copy that has both EPA and NFIB’s

name on the fax lines, and I want to know very clearly with a yes

or no, if possible, was this paper produced at the EPA after discussions with the EPA?

Mr. FIELDS. This is November, 19—I see it says November 3,

1999.

Mr. SHIMKUS. November 3, 1999, EPA, AO and then—the same

line—with another line from NFIB Government Relations.

Mr. FIELDS. I provided a letter for the record August 18, 2000

which said that NFIB and EPA had developed some language in

November 1999. I don’t know if this is the specific same language,

but I assume this is close to or similar to language that we were

working on at the time with NFIB staff and EPA staff. I would

have to read this carefully and verify for you to know if that was

exact same language, but I know we were working on language at

the time.

Mr. SHIMKUS. Please do because we obviously believe that it is

the same language and that really this committee has moved in

great strides to try to meet many of the EPA’s demands and especially in the bill we had on the floor.

The bill addresses a relationship with entities to parents, subsidiaries and affiliates as requested by the EPA. The bill addressed

the potential effect of the bill on concluded actions as requested by

administration staff. The bill withdraws liability protections if a

small business fails to comply with administrator support orders to

compel compliance with requests for information as requested by

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EPA. The bill narrows the definition of households as requested

by the EPA.

Finally, at the request of the Administrator’s staff, the bill makes

clear that settlement offers must be in the public interest.

I mean, we have moved really very far to meet your desires. I

think the chairman’s frustration has been experienced by myself,

too, is we just want to know what you want. I mean, that is all.

I think that is pretty clear.

So I want to follow up on the chairman’s request that you take

5175 and tell us what you want; and if you can do that by the end

of this week we may be able to run another shot at this on the

floor.

As an Ombudsman for the citizens in my District—and I tell my

colleagues and I said this on the floor—their time will come. Their

time will come when the local restaurant owner is being the third

party of a suit. As I mentioned in the opening statement, they will

be in that block of 580 that are the third iteration of a suit in

which their net income for the year will be at risk, either through

a settlement offer by the EPA or countless litigation to get them

out of this fund, and we have all agreed they don’t need to be

there.

So since we are going to have probably another week here in

Washington, we do have time to fix this; and so I will take you at

your word that you—— Mr. FIELDS. We will provide comments, yes, Chairman Oxley.

Mr. SHIMKUS. Not just comments. We are not asking for comments anymore. We are done with comments.

Mr. FIELDS. That is what the chairman—— Mr. SHIMKUS. No, he didn’t. He wants legislative language. He

wants language that you would approve in a bill to exempt small

businesses from this trap.

You know, the Administrator’s position on this and the failure to

fight for small businesses, to say that it would expand litigation,

is the biggest red herring I have ever heard, when the whole intent

is to leave liability—the whole intent of the——

Mr. FIELDS. There are elements of the bill—— Mr. SHIMKUS. [continuing] language. We don’t want overviews.

We don’t want synopses. We want legislative language to fix the

bill, and I will take you at your word.

With that, Mr. Chairman, I will yield back my time.

Mr. OXLEY. Gentleman yields back.

The Chair now recognize the gentlelady from Wyoming, Ms.

Cubin.

Mrs. CUBIN. Mr. Chairman, I don’t have any questions at that

time.

Mr. OXLEY. Then the Chair turns to the gentleman from Oklahoma, Mr. Largent.

Mr. LARGENT. Thank you, Mr. Chairman. I do have some questions.

Mr. Martin, when you were asked a question earlier you said

that you believe that your office was an advocate for the truth. And

the question I had for you when you said that was do you feel if

the Ombudsman’s Office is controlled or manipulated by the EPA

that you can still pursue the truth?

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Mr. MARTIN. No.

Mr. LARGENT. Okay. Did you have written testimony prepared

for this hearing this morning?

Mr. MARTIN. No.

Mr. LARGENT. You never had a testimony prepared for this hearing.

Mr. MARTIN. That is correct.

Mr. LARGENT. Did you seek permission to provide testimony for

this hearing when asked?

Mr. MARTIN. I understood it was being prepared by the Agency.

Mr. LARGENT. Which agency?

Mr. MARTIN. The EPA.

Mr. LARGENT. The invitation went to you, and the Agency began

preparing the testimony for you, is that what you are saying?

Mr. MARTIN. That was my understanding, yes.

Mr. LARGENT. Did you not think that that was odd or is that normal operating procedure, that your testimony that you would provide before this hearing would be provided by the Agency or perhaps the gentleman that is sitting behind you?

Mr. MARTIN. I did not receive the invitation letter directly.

Mr. LARGENT. Did your office receive an invitation directly? Because we have a copy of it. Maybe there is a problem with the Postal Service. Maybe we can get them here.

Mr. MARTIN. We did receive the invitation, I believe, yesterday;

and it had been opened.

Mr. LARGENT. It had been opened.

Mr. MARTIN. Yes before we received the invitation.

Mr. LARGENT. Who opened the invitation?

Mr. MARTIN. I don’t know, sir.

Mr. LARGENT. Do other people routinely open your mail before

you receive it?

Mr. FIELDS. Mailroom—EPA’s mailroom opens the mail oftentimes when it comes in, letters.

Mr. LARGENT. Well, Mr. Martin, have you had a chance to read

the testimony that the Agency provided for this hearing?

Mr. MARTIN. Yes, I reviewed it this morning prior to the hearing.

Mr. LARGENT. And do you agree 100 percent with its contents

provided to this committee?

Mr. MARTIN. I think there is some areas where clarification is

needed.

Mr. LARGENT. What would those areas be and what would you

say to clarify them?

Mr. MARTIN. I believe that in the area of the Regional Ombudsmen program, for example, there have been difficulties with the implementation of that program as it has been established by the

Agency. The Regional Ombudsmen do not serve full time in those

capacities. Instead, it is more like 5 to 10 percent of their jobs; and

their regular job is to report to the people whom they would be reviewing in their particular regions. That is a problem, and I think

that it needs to be addressed by the Agency, perhaps by Congress

in its discretion.

Mr. LARGENT. So, basically, it would be similar to, say, having

Firestone executives heading up NHTSA, overseeing the production

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of tires and quality control on tires. Essentially that is what is taking place, is that right?

Mr. MARTIN. I think there are inherent conflict of interest problems, yes.

Mr. LARGENT. And it is my understanding that when this law

was created back in 1984 that the original authorizing language required that the Ombudsman—you were to report directly to the

EPA Administrator. Is that how you operate today?

Mr. MARTIN. No, sir.

Mr. LARGENT. Who do you report directly to?

Mr. MARTIN. I report to Mr. Fields deputy, Mr. Shapiro, and at

times Mr. Fields.

Mr. LARGENT. Why is that? Why are we not following the original

intent of the law from 1984? How did that get altered?

Mr. MARTIN. I cannot speak for the Agency about the reporting

issue, but needless to say it is a decision of the Agency to have the

reporting structure at this time.

Mr. LARGENT. That is the hand you were dealt?

Mr. MARTIN. That is correct.

Mr. LARGENT. Do you feel like it would lend to the autonomy of

the Ombudsman position if you reported, in fact, directly to the

EPA Administrator.

Mr. MARTIN. Yes, I do; and there is a study by the Administrative Conference of the United States which describes that as necessary.

Mr. LARGENT. Thank you, Mr. Martin.

Mr. Chairman, I yield back my time.

Mr. OXLEY. Gentleman yields back.

The Chair is now pleased to recognize the gentlelady from Idaho

who has joined our deliberations today. Welcome.

Mrs. CHENOWETH-HAGE. Thank you, Mr. Chairman.

I wanted to follow the line of the questioning initiated by Mr.

Largent.

I find it extraordinary that EPA was created under an executive

order and yet the Congress thought so strongly about an Office of

the Ombudsman that under Public Law 98-616 the office was created by the Congress, and so it is of great concern to those of us

Members who are involved in these issues to make sure that the

Ombudsman remains independent.

I also find it extraordinary, Mr. Martin and Mr. Fields, that

under EPA publications it is—the Office of the Ombudsman—is described as a high-level employee who serves as a point of contact

for members of the public that have concerns about Superfund activities and that the ability to look independently into problems

and facilitate communication that can lead to solutions, end quote,

is a responsibility of the Ombudsman. I find that word ‘‘independently’’ to be very, very important to us.

In addition, Mr. Fields, in 1990 the Administrative Conference of

the United States, of which EPA participated in, published a report

that states, it is important that Ombudsmen be independent of the

line offices and that they are seen as independent.

Now, in your testimony you went to great lengths, Mr. Fields, to

talk about the handbook and the standards that are going to be

published with regards to the conduct and the job responsibilities

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of the Ombudsman. I find that extraordinary. I find that to have

EPA write rules and regulations and put forth standards for an

Ombudsman whose office was created by the Congress whose—it

has been stated very clearly they should remain independent, that

is the antithesis of independence.

Mr. FIELDS. I should clarify that the Hazardous Waste Ombudsman Handbook that was written back in the late 1980’s, 1987, was

actually drafted by the first Ombudsman who was Mr. Martin’s

predecessor. Mr. Bob Knox was instrumental in drafting that first

Ombudsman’s handbook.

So it was not something that EPA management dictated in terms

of how the Ombudsman functioned or operated. It was actually

done by staff. And particularly the National Ombudsman at the

time was integrally involved in developing a Hazardous Waste Ombudsman Handbook. It was felt that there needed to be some procedures and guidelines on how the function should operate and how

the Ombudsmen should go about doing their business. In the event

that a subsequent Ombudsman came along that new Ombudsman

would not have to start from scratch as there would be a handbook.

As you know, Mr. Martin is now the second National Ombudsman we have had and that handbook was at least I think helpful

when Mr. Martin began his job 8 years ago.

Mrs. CHENOWETH-HAGE. And I think that handbook clearly lays

out the need for independence and the concern that the Congress

had when they implemented and passed and voted on Public Law

98-616.

My concern is with the standards that you have testified to that

Lois Schiffer, Assistant Attorney General here in Washington, DC,

had indicated that the Ombudsman’s investigative matters should

not be at issue in any issue pending the—that has pending litigation or administrative proceedings. Well, almost everything the

EPA does is administrative proceedings. So knowing that Lois

Schiffer has a big bark and that she has sent communications with

regards to that particular issue, I am concerned that this is the

kind of standard that we are going to see published and noticed in

the CFR.

Mr. FIELDS. Well, Ms. Schiffer has sent communications, I know,

to you, Congresswoman, about that point and also to me.

As you know, we—EPA decided that we still could proceed with

an Ombudsman investigation in the Coeur d’Alene basin that you

and other members of the Idaho delegation requested. We believe

you can do an effective Ombudsman investigation and not impede

matters involving ongoing litigation. The government must speak

with one voice during litigation. As you know, as we have tried to

do that.

And I think we have tried to work with Mr. Martin’s office to

make sure that he can continue to conduct an investigation of the

issues of concern to the public in Coeur d’Alene and not adversely

impede ongoing litigation. That is an issue we are trying to continue to work with.

But in spite of the recommendation initially by the Department

of Justice that we not proceed with the Ombudsman hearing, we

agreed and I supported, as you know, the need for the Ombudsman’s investigation and hearing to proceed.

90

Mrs. CHENOWETH-HAGE. Thank you, Mr. Fields.

I see that my time is almost up, but I do note that under the

administrative regulatory news it states that the Ombudsman

should facilitate communication between citizens and where there

is systemic failure or systematic failure to propose more general reforms—I just have to say that from my own personal experience,

information that we were not able to acquire, such as plans to seize

mines without notice to the owner, lack of chain of custody with regards to how samples were drawn, that is the first thing that impressed me about this Ombudsman, was his first question to me

was, has there been a chain of custody that you have been able to

turn up? If not, I will investigate that. That is the kind of investigation the people are crying out for and I think the Congress

needed when it passed public law.

Thank you.

Mr. OXLEY. Time of the gentleman has expired.

The gentlelady from Wyoming.

Mrs. CUBIN. Thank you, Mr. Chairman.

I am referring to the letter that Carol Browner sent regarding

the legislation that Mr. Shimkus was discussing with you on H.R.

5175. I would like to just quote one sentence from it: For many

years I have encouraged congressional committees in both the

House and the Senate to pass reasonable, targeted legislation that

addresses the Superfund liability of small parties. Can you be specific with me what the EPA has done, what those exact recommendations have been, other than the substance of the bill H.R.

5175? In other words, what didn’t the Congress do that Administrator Browner wanted done?

Mr. FIELDS. Well, the Administrator was referring to in her September 22 letter that over the last 7 years now we have obviously

implemented a set of reforms to provide liability relief for small

parties—— Mrs. CUBIN. Name them. Name some for me, please, specifically,

sir.

Mr. FIELDS. The administrative reforms we have implemented

have provided de minimus settlements to more than 21,000 parties

that are impacted by Superfund liability. We have implemented a

program of de micromis settlements where we settled for zero dollars or one dollar for very small, tiny parties at Superfund sites.

Mrs. CUBIN. And how many small business, third-party defendants have actually been helped by some of the things that you have

done? I personally believe you would have a very, very difficult

time in identifying people for me that have been helped by those

things.

Mr. FIELDS. Many of those 21,000 parties are, in fact, small businesses. We will be happy to get back to you for the record with an

estimate of how many of those among that universe are small businesses.

Mrs. CUBIN. I would appreciate that very much.

Mr. Fields, you state that many people don’t know how to get information on solid and hazardous waste programs, or that they are

frustrated by program complexities. Why have EPA personnel

failed to provide easy access to this information? How many employees work in providing information to the public on solid and

91

hazardous waste site s? And how many employees work in the National Ombudsman office?

Mr. FIELDS. I don’t know precisely how many people are working

in EPA’s enforcement program trying to identify amounts of waste,

I think that is what you are referring to, that have been shipped

to Superfund sites. There are hundreds of them, I know, across the

country. The old records are difficult to find. It is a hard task,

doing the searches necessary to document those waste amounts.

But I would provide for the record to the subcommittees precisely

how many of our enforcement personnel are involved in doing those

tasks.

[The following was received for the record:]

The Environmental Protection Agency (EPA) recognizes the need for people living

near Superfund sites to be well-informed and involved in decisions concerning sites

in their communities. Through years of implementation of the program, EPA has

determined that early and meaningful community involvement in the cleanup decisions is important in order to have a successful Superfund site cleanup. On-Scene

Coordinators, Remedial Project Managers and Community Involvement Coordinators work with community members to ensure they understand what Superfund activities being conducted at a site and how the community can participate in the

process. Each year, EPA staff members conduct hundreds of public meetings and

door-to-door visits, and distribute thousands of fact sheets to communities. Many

times EPA establishes a satellite office near a Superfund site to ensure community

members have easy access to Regional staff.

EPA also provides communities with technical assistance so that they are better

able to meaningfully participate in cleanup decisions. The cornerstone of EPA’s efforts is the Technical Assistance Grant (TAG) program. Under the TAG program,

community organizations can apply for an initial grant of up to $50,000 to hire their

own independent technical advisors. In FY2000, seven new TAGs were awarded,

and approximately $1.25 million was given out for these new awards and for amendments to existing TAGs.

A corollary to the TAG program is the Technical Outreach Services for Communities (TOSC) program. Through TOSC, EPA funds the Hazardous Substance Research Centers to provide independent technical assistance for communities. In FY

2000, the TOSC program was funded at $1.300 million. TOSC was active at 118

sites in FY 2000.

EPA’s Community Advisory Group (CAG) program seeks to bring together early

in the process a broad group of stakeholders who are interested in the work going

on at the site in their community. Started in June 1993, the CAG program is designed to enhance community involvement in the Superfund process. A CAG is designed to serve as the focal point for the exchange of information among the local

community and EPA, the State regulatory agency, and other pertinent Federal

agencies involved in cleanup of the Superfund site.

Additional components of EPA’s Superfund community involvement program include translations of public documents, and access to neutral facilitators. Some of

the Superfund sites have non-English speaking populations surrounding them. In

these cases, EPA translates public information documents into the languages of the

people living near the site and provides interpreters at public meetings. EPA also

provides community members with access to neutral conveners, facilitators, and mediators.

In addition to the National Ombudsman, two full-time EPA employees, Senior Environmental Employee grantees and a number of student interns are assigned to assist the National Ombudsman. Also, the National Ombudsman has access to sources

outside of EPA if additional assistance is needed to help him conduct an investigation. The Ombudsman function, depending on the sites and issues under its review

during any one time, draws upon the existing technical resources of the Office of

Solid Waste and Emergency Response, and particularly that of the Environmental

Response Team, to supplement its investigative efforts. Each Regional Office has

designated a Regional Superfund Ombudsmen as well.

Mr. FIELDS. In terms of the people involved in the National Ombudsman’s program across the country, I will defer to Mr. Martin

for more details on his immediate staff.

Mrs. CUBIN. If you could just submit that for me.

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[The following was received for the record:]

The Office of Ombudsman was abolished by Acting Assistant Administrator Tim

Fields on October 31, 1997, one week after my receipt of a subpoena to appear in

my official capacity before a Federal criminal grand Jury on the Times Beach Ombudsman case. There has been no Office of Ombudsman, therefore, since October

31, 1997 (See, Attachment 2). During my entire tenure as Ombudsman, I have been

and continue to be the only permanent EPA employee assigned to the National Ombudsman function.

93

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Mr. FIELDS. I know there are 10 people in the regions who are

spending some of their time on this function as well.

Mrs. CUBIN. I think the question that I cared the most about is

why the EPA has failed to provide easy access to this information,

as you stated yourself.

Mr. FIELDS. Well, it is not easy information to get access to. Oftentimes, the records are not adequate to document how much

waste has been shipped.

Mrs. CUBIN. When you say it is true that folks are being requested to give the information, they don’t know what they are

supposed to give.

Mr. FIELDS. Well, maybe we could provide—as you were indicating, maybe we could provide better guidance or clarity providing

the precise types of information people ought to be submitting.

That is probably something we can work on.

Mrs. CUBIN. The subcommittee asked you to provide funding figures for the Ombudsman office for the current year and for the previous 5 years. I wonder why you didn’t provide this specific information but instead you chose to only provide fiscal year 1993 and

2000 information. Why is that?

Mr. FIELDS. I just did that just to summarize for the record. I

have actually provided for this committee—I have with me today

precise documentation that goes back for 10 years indicating the

dollar figures for the Ombudsman’s Office. It was roughly $230,000

in 1998, $360,000 in 1999, $519,000 in 2000. I have numbers going

back to 1990. I think it was like $117,000 in 1990. So I will provide

for the record this piece of paper that documents from 1991

through 2000 the precise amounts that have been allocated for the

Ombudsman function.

[The following was received for the record:]

Below is the annual budget for the National Ombudsman for the past ten years:

FY91 .......................................................................................................................................................................... $116,000.00

FY92 .......................................................................................................................................................................... $113,000.00

FY93 .......................................................................................................................................................................... $117,000.00

FY94 .......................................................................................................................................................................... $136,000.00

FY95 .......................................................................................................................................................................... $142,000.00

FY96 .......................................................................................................................................................................... $158,000.00

FY97 .......................................................................................................................................................................... $157,000.00

FY98 .......................................................................................................................................................................... $262,000.00

FY99 .......................................................................................................................................................................... $345,000.00

FY00 .......................................................................................................................................................................... $519,000.00

Also, the National Ombudsman function, depending on the sites and issues under

its review during any one time, draws upon the existing technical resources of the

Office of Solid Waste and Emergency Response (OSWER), and particularly that of

the Environmental Response Team, to supplement its investigative efforts.

There are Regional Superfund Ombudsmen in each Regional Office, as well. These

functions are funded at a total of roughly $1 million a year.

Mrs. CUBIN. Okay. Two things—I am not sure that just those

single figures will be adequate. Will you be willing to provide further accounting to the committee if so requested?

Mr. FIELDS. Sure.

Mrs. CUBIN. Then, last, do you believe that the office is being

funded adequately at the levels that you——

Mr. FIELDS. The Ombudsman function has been funded now at

roughly $500,000 to $600,000 this year. I think, you know, and I

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will—we have got to make sure we provide the resources that Mr.

Martin needs to do his functions.

Mrs. CUBIN. Do you think it is adequate?

Mr. FIELDS. I think the budget of what we provided this year, of

500,000 to $600,000, is an adequate amount.

Mrs. CUBIN. Mr. Martin, do you think it is adequate?

Mr. MARTIN. I want to clarify a question you had posed earlier

about the number of people who work in my office. It is me—and

Mr. Kaufman has been assigned at least half time to the office. I

also have three interns whose term will be expiring near the end

of this year who have been with me since the beginning of the summer. So this is the staffing. Given where the case load is going, it

is extremely large, I think more resources will be needed.

Mrs. CUBIN. Doesn’t seem like much of a commitment to me on

the part of the EPA to actually try to work with constituents with

one person across the United States officially working on their behalf to try to settle discrepancies between the Agency and citizens.

But thank you very much. My time has expired.

Mr. BILIRAKIS. Would the gentlelady yield?

Mrs. CUBIN. Certainly.

Mr. BILIRAKIS. I would agree with you. It certainly doesn’t seem

to be consistent with the mission statement EPA has regarding

cleanup of these Superfund sites.

Mr. Fields, just very quickly, discussion took place regarding the

Miranda warning and the instructions that were furnished to the

Ombudsman’s Office on the part of the Inspector General. We have

a September 12 letter from Mark Bialek, Counsel to Inspector General. Is that the letter to which you referred?

Mr. FIELDS. That was the letter I was referring to.

Mr. BILIRAKIS. Is there another letter?

Mr. FIELDS. I said there was a response from Mr. Kaufman. I

think we agreed we would provide that for the record as well.

Mr. BILIRAKIS. That was a response from Mr. Kaufman to Mr.

Bialek.

Mr. FIELDS. Yes.

Mr. BILIRAKIS. Any further communications from Mr. Bialek in

response to Mr. Kaufman?

Mr. FIELDS. I am not aware of any further communications. I

saw this letter, and then there was another letter from Mr. Kaufman on this matter. I am not aware of any other communications

on this.

Mr. BILIRAKIS. Well, the letter from Mr. Kaufman you are providing for the record.

Mr. FIELDS. I don’t have a copy of that with me today, but we

did agreed to provide it.

Mr. BILIRAKIS. Without objection, will the——

Mr. OXLEY. Without objection.

Mr. BILIRAKIS. Without objection, that will be the case.

All right, thank you very much.

Mr. OXLEY. Gentlelady from Idaho.

Mrs. CHENOWETH-HAGE. Mr. Chairman, I just did some quick

math. Considering the fact that this Ombudsman has 14 major

cases going on around the Nation, he is spending, on an average,

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about $36,000 per case; and that includes travel, everything. It is— I think $500,000 is not much of a commitment to justice and truth.

Thank you very much.

Mr. FIELDS. Mr. Chairman, may I just add to that comment?

I want to point out there are 10 other Regional Ombudsmen that

we are funding for about a million dollars across the country in addition to the $500,000 that I talked about for 2000. We have also

supplemented Mr. Martin’s support with support for the environmental response team at Edison, New Jersey, other EPA staff that

also provide support. So it is not just that amount. There are other

people across the country and in headquarters who are providing

support over and above that $519,000 amount.

Ms. DEGETTE. Mr. Chairman, if I could add my two cents.

Mr. OXLEY. Very briefly, gentlelady from Colorado.

Ms. DEGETTE. I agree with my colleague to the north, Mrs.

Cubin.

I would chime in, also, that with the increased caseload of the

Ombudsman and with the burdens that we are putting on him at

not just a regional level but also a national level and with the new

rules and requirements that you are in the process of promulgating

it would seem to me that the Agency would want the make a commitment at the national level to have assistance for the Ombudsman and professional, paid, full-time staff that could assist in these

investigations.

I would echo, my view, too, if we are going in the direction of involvement in more cases for the Ombudsman, to be effective and

responsible I think he is going to need to have adequate resources.

Mr. OXLEY. Gentlelady’s time has expired.

Let the Chair, in closing, do two or three housekeeping—the

Chair would like to enter into the record a copy of the transmission

report. This was the transmission of the invitation to appear at the

hearing today to Mr. Martin, care of Randy Deitz. Mr. Martin, is

that Randy Deits?

Mr. FIELDS. Randy Deitz is the gentleman behind me here.

Mr. OXLEY. He work for you, Mr. Fields?

Mr. FIELDS. Mr. Deitz works in the Office of Congressional and

Government Relations at EPA.

Mr. OXLEY. Okay. This is a copy of the hearing invitation letter.

Just for the record, the document was confirmed and sent on 9/27

at 4:35 p.m. That was Wednesday afternoon, just for the record.

[The material follows:]

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98

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Mr. OXLEY. Mr. Fields, as you know, my colleague Helen

Chenoweth-Hage has been closely following EPA Superfund- related activities in northern Idaho. One of her concerns is the EPA’s

plans for the new Bunker Hill Mine in Kellogg, Idaho. Congresswoman Chenoweth-Hage is not satisfied that she has received all

of the EPA documents relevant to this site. I am going to submit

several requests for information to you on her behalf. Can I have

your assurance that you will respond to the request in a timely

manner sought by my colleague from Idaho?

Mr. FIELDS. I will do so, sir.

Mr. OXLEY. Thank you.

Finally, Mr. Fields, in the discussion about the funding for ombudsmen and the like, you had indicated you had all the funding

records with you.

Mr. FIELDS. Yes, and our Congressional Affairs Office will make

sure your staff are given those documents.

Mr. OXLEY. Can we have those submitted for the record?

Mr. FIELDS. Sure.

Mr. OXLEY. Thank you.

[The following was received for the record:]

Below is the annual budget for the National Ombudsman for the past ten years:

FY91 ...................................................................................................................................................................... $116,000.00

FY92 ...................................................................................................................................................................... $113,000.00

FY93 ...................................................................................................................................................................... $117,000.00

FY94 ...................................................................................................................................................................... $136,000.00

FY95 ...................................................................................................................................................................... $142,000.00

FY96 ...................................................................................................................................................................... $158,000.00

FY97 ...................................................................................................................................................................... $157,000.00

FY98 ...................................................................................................................................................................... $262,000.00

FY99 ...................................................................................................................................................................... $345,000.00

FY00 ...................................................................................................................................................................... $519,000.00

Also, the National Ombudsman function, depending on the sites and issues under

its review during any one time, draws upon the existing technical resources of the

Office of Solid Waste and Emergency Response (OSWER), and particularly that of

the Environmental Response Team, to supplement its investigative efforts.

There are Regional Superfund Ombudsmen in each Regional Office, as well. These

functions are funded at a total of roughly $1 million a year.

Mr. OXLEY. The gentleman from Illinois.

Mr. SHIMKUS. Thank you.

I know we are trying to move forward, but I do want to ask Mr.

Martin—and I appreciate—I really do appreciate you being here

and the challenges, based upon current law, reading some of the

descriptions, I am not sure how—I think it is a very tough job that

you have. I would like, if you would then, to follow up with legislation to answer a question on whether the Ombudsman should be

reauthorized. And if the answer is yes, what would be your suggestions of how it would change?

Now being an Ombudsman and being part of the EPA, I don’t

know how you effectively do that without allowing the EPA’s hand

to get involved in the recommendation. I have I think a good sense

that you want to, you know, continue a role for the Ombudsman,

and I think you probably had some ideas of how we can improve

it.

And, Mr. Fields, I would respectfully ask that you allow him to

submit those recommendations to us unedited so that we can look

at the reauthorization and look at ways that we can improve it.

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Mr. FIELDS. I have no problem with that at all.

[The following was received for the record:]

The Hazardous Waste and Superfund Ombudsman Office should be reconstituted

and reauthorized consistent with H.R. 3656 for a period of ten (10) years. Moreover,

the legislation to reauthorize the Office of Ombudsman should include, at a minimum:

* Re-establishment of the Office of Ombudsman;

* Allocation of resources under the control of the Office and as defined by the Office, to implement the function;

Authorization to perform duties consistent with the IRS Ombudsman function, already established by Congress.

Mr. SHIMKUS. Based upon the terminology or the language, the

Ombudsman shall not affect any procedures or grievances, appeals

or administrative matters which comes out of the current law, and

I didn’t get a chance to ask about your involvement with small

businesses and individual aspects. It seems like the overall issue

and the overall fight—but I think there seems to be—we need to

develop some more independence and we need I think to broaden

the scope a little bit.

Because a lot of us, we are Members, we are ombudsmen; and

that is why we get so fired up about this. So I think there is a lot

of sympathy for the battles that you have to fight, and I just appreciate you being here. It is usually not an enjoyable experience

sometimes, but it is healthy as we move forward on legislation.

So if you would provide that—Mr. Fields, if you would allow that

to occur, I would appreciate that.

With that, Mr. Chairman, I yield back my time.

Mr. OXLEY. The gentleman may respond very briefly.

Mr. FIELDS. We will definitely adhere to the Congressman’s request in terms of Mr. Martin’s providing his suggestions to the subcommittees on the views on how the Ombudsman operation should

operate.

Mr. OXLEY. Gentlemen, thank you for your testimony. Appreciate

it.

We will now turn over the Chair to the co-chairman, Mr. Bilirakis.

Mr. SAWYER. Mr. Chairman, just before, let me say thank you for

the opportunity to participate in this way and thank you to both

of our witnesses for their responses.

Mr. OXLEY. Next session you may want to join the subcommittee.

Mr. BILIRAKIS [presiding]. I would ask, as I move over to the

main chair, that a representative of the administration stay in the

room to hear the testimony, particularly in this case, of the citizens’ panel. So, Mr. Fields, it would be great if you can stay, but

if you can’t, we understand. But hopefully, you will have someone

here to take notes and all that. Because we are all working for the

same people, that is the taxpayers; and we should all be greatly

concerned.

Mr. FIELDS. I agree. I, unfortunately, cannot. I have to go to a

meeting with our Administrator. But I will assure you we will have

staff here to be available.

Thank you, Mr. Chairman.

Mr. BILIRAKIS. Next panel, Mr. Bret Bowers, Executive Director

of Community Leaders for EPA Accountability Now! from Coeur

d’Alene, Idaho; Ms. Mary Mosley, former city commissioner and

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civic activist from Tarpon Springs, Florida; and Ms. Kimberly

Boggiatto from Denver, Colorado.

I would hope as we go into your testimony that you will complement or supplement your written statement in your 5 minutes.

Your entire written testimony, by the way, is part of the record.

We do have legislation to reauthorize the Office of the Ombudsman which would provide specifics in terms of its functions and an

increase in funding, and I would hope that we can get the support

of all the members of the subcommittee.

Having said all that, in view of the way you have lined up there,

we will start off with Ms. Boggiatto. Please proceed, ma’am.

STATEMENTS OF KIMBERLY BOGGIATTO; MARY MOSLEY; AND

BRET BOWERS, EXECUTIVE DIRECTOR, COMMUNITY LEADERS FOR EPA ACCOUNTABILITY NOW!

Ms. BOGGIATTO. Good afternoon, Mr. Chairman and members of

the subcommittees. I am extremely honored by your invitation to

testify before you today with respect to the role of the EPA National Ombudsman in addressing concerns of local communities.

I would also like to thank Congresswoman DeGette and her staff

for her hospitality over the past couple of days.

I today am representing Clean-It!, which is our local citizens’ group that was formed for the sole purpose of advocating for the

removal of the radioactive and toxic waste at the Shattuck Superfund site in south Denver. And Congresswoman DeGette’s office

was nice enough to provide us with the beautiful picture over there

of our very own radioactive waste dump.

Clean-It! stands for Citizens Loving Our Environment and

Neighborhood—Invincible Together, and not only does it make a

great acronym but I think it is pretty accurate as far as what we

have been able to accomplish.

The Shattuck site is contaminated by radioactive and toxic

wastes from a decade of radium processing. The contamination

found at the Shattuck site is not unique in Denver. There were approximately 10 other Superfund sites with similar contamination.

What makes Shattuck unique is that it is the only one of these

sites where the EPA decided that the appropriate remedy was onsite disposal. EPA decided for all of the other sites that removal of

the radioactive soils should be to a licensed, low-level radioactive

waste disposal facility and that that was the only remedy that

was—both satisfied existing laws and regulation and was protective of human health and the environment. In fact, EPA originally

determined that the wastes at the Shattuck site should also be removed and then went to public comment with that preferred alternative back in the early 1990’s.

However, after closing the public comment period, EPA decided,

apparently, to reverse its decision and subsequently issued a decision that ordered the radioactive materials left on the site.

The Ombudsman’s investigation was critical in discovering sort

of behind-closed-doors meetings that EPA Region 8 held with the

owner of the site, and these meetings appeared to have factored

into EPA’s reversal of their original recommendation.

In early 1999, the National Ombudsman Bob Martin and Investigator Hugh Kaufman came to Denver to listen to the citizens’ conVerDate 11-MAY-2000 14:19 Apr 06, 2001 Jkt 010199 PO 00000 Frm 00105 Fmt 6633 Sfmt 6602 E:\HEARINGS\67120 pfrm08 PsN: 67120
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cerns regarding Shattuck. Mr. Martin and Mr. Kaufman were the

first EPA officials who actually listened. They treated the citizens

with respect and with dignity, and that was in sharp contrast to

how the citizens had been treated by Region 8 officials over the

previous decade.

Also, in the spring of 1999, EPA Assistant Administrator Timothy Fields began to look into EPA Region 8’s management of the

Shattuck site. Assistant Administrator Fields initiated a mediated

stakeholder process that lasted roughly 6 months and included a

thorough technical review of the existing remedy. I believe that the

Ombudsman’s investigation swayed EPA headquarters to focus attention and resources on Shattuck.

The Ombudsman’s investigation was essential in exposing improperly withheld documents, which I hear is a theme at many of

these other sites, as well as concerns about the kinds of waste that

might be disposed of at the Shattuck site. And we have heard some

talk from Congresswoman DeGette today about the potential defense waste and other such things.

In short, the Ombudsman’s investigation of EPA Region 8’s mismanagement of Shattuck was instrumental in the recent decision

that Shattuck wastes must be removed from the site. The citizens

knew that if an honest review were conducted the wastes would

have to be removed. Bob Martin and his staff were the only EPA

officials truly willing to look at the abuse of power by and gross incompetence of EPA Region 8 officials and staff. I believe that this

abuse of power and incompetence not only extends up to Regional

Administrator Bill Yellowtail but also emanates from him.

My experience working with the Ombudsman’s Office has bought

to my attention some changes that would improve the operation of

the office. The improvements essentially fall within two categories:

resources and independence.

It is clear from my experience that additional staff would be very

useful for the Ombudsman’s Office. This would allow for more thorough reviews and investigations as well as the ability to accept

more cases. The office also needs a larger budget not only to fund

the additional staff but also to hire experts and pay for independent laboratory analyses where appropriate.

Perhaps even more important is the issue of independence. It is

imperative that the Ombudsman has the final decision as to which

cases are investigated and how the office’s budget is allocated. It

is my impression that EPA too often attempts to exert influence

over the cases that are accepted for review and the extent to which

a case is investigated by constraining the activities that will be

funded. Imagine if EPA could determine these subcommittees

budgets so as to dictate which oversight hearings could be held or

which bills could be considered. Such a situation would clearly

hinder your ability to oversee the EPA and result in an enormous

disservice to the citizens of this Nation.

Just this kind of disservice results when the Ombudsman’s budget is manipulated so as to impede his investigations. The Ombudsman and his staff are uniquely prepared to review and investigate

EPA’s actions because of their extensive knowledge and applicable

statutes and regulations as well as their broad technical and scientific knowledge. Because the Ombudsman’s Office accepts cases

103

at the request of elected officials, it functions to support and enhance your ability to scrutinize the actions and decisions of the

EPA.

Mr. BILIRAKIS. Please summarize, if you could, Ms. Boggiatto.

Ms. BOGGIATTO. Certainly. I would just like to add, there are

guidelines out there that have been discussed of those of the EPA

as well as some guidelines that appear to be relevant that were

published in 1990 in the Federal Register on the role of the Ombudsman within Federal agencies that uphold the independence

and integrity of this office. I do not believe that EPA administration is the appropriate place for the guidelines to be developed and

that that would serve generally to diminish independence and compromise the integrity of the Ombudsman’s Office.

Essentially, the argument for a strong EPA Ombudsman comes

down to simple human nature: The best incentive for being honest

is knowing you would be caught if you weren’t. That is how I see

the role of the Ombudsman, essentially, is that the further resources you give the Ombudsman’s Office the more the EPA will

realize that they have to make good decisions and they have to be

accountable to the people. Because if they are not, we have an active and aggressive Ombudsman’s Office who will expose the injustices, and I think that will serve to really reform the Agency and

stop many of the situations we all have experienced.

[The prepared statement of Kimberly Boggiatto follows:]

PREPARED STATEMENT OF KIMBERLY BOGGIATTO

Good morning Mr. Chairmen and members of the subcommittees. I am extremely

honored by your invitation to testify before you today with respect to the role of the

Environmental Protection Agency (EPA) National Ombudsman in addressing concerns of local communities. My name is Kimberly Boggiatto and I am representing

Clean-It! Clean-It! stands for Citizens loving our environment and neighborhood—

Invincible together! We are a local citizens’ group that formed to advocate for the

removal of the radioactive and toxic waste from the Shattuck Superfund site in

south Denver.

The Shattuck site is contaminated by radioactive and toxic wastes from decades

of radium processing. The contamination found at the Shattuck site is not unique

in Denver; there were approximately ten other superfund sites with similar contamination. What makes Shattuck unique is that it is the only one of these sites

where the EPA decided that the appropriate remedy was onsite disposal. EPA decided for all of the other sites that removal of the radioactive soils to a licensed,

low-level radioactive waste disposal facility was the only remedy that both satisfied

existing laws and regulations and was protective of human health and the environment. In fact, EPA originally determined that the wastes should be removed from

the Shattuck site as well. However, after closing the public comment period in

which strong support for removal was expressed, EPA issued a decision that ordered

the radioactive soil disposed of on site. The Ombudsman’s investigation was critical

in discovering the ‘‘behind closed doors’’ meetings that EPA Region VII held with

the owner of the site which appear to have factored into EPA’s final decision to bury

radioactive waste only a block from residences, within the densely populated City

of Denver.

In early 1999, the National Ombudsman, Bob Martin, and Investigator Hugh

Kaufman, came to Denver to listen to the citizens’ concerns regarding Shattuck. Mr.

Martin and Mr. Kaufman were the first EPA officials who actually listened to the

concerns of our community. They treated the citizens with respect and dignity, in

contrast to the numerous EPA Region VIII officials and staff over the previous decade. Also in the spring of 1999, EPA Assistant Administrator for the Office of Solid

Waste and Emergency Response (OSWER), Timothy Fields, began to look into EPA

Region VIII’s management of the Shattuck site. Assistant Administrator Fields initiated a mediated stakeholder process that lasted roughly six months and included

a technical review of the existing remedy. I believe that the Ombudsman’s investigation swayed EPA Headquarters to focus attention and resources on Shattuck.

104

The Ombudsman’s investigation was essential in exposing improperly withheld

documents as well as concerns about the kinds of waste that might be disposed of

at the Shattuck site. In short, the Ombudsman’s investigation of EPA Region VIII’s

mismanagement of Shattuck was instrumental in the recent decision that the

Shattuck wastes must be removed from the site. The citizens knew that if an honest

review were conducted, the wastes would have to be removed. Bob Martin and his

staff were the only EPA officials truly willing to look at the abuse of power by and

gross incompetence of EPA Region VIII officials and staff. I believe that this abuse

of power and incompetence not only extends up to Regional Administrator Bill

Yellowtail, but also emanates from him.

My experience working with the Ombudsman’s Office has brought to my attention

some changes that would improve the operation of the Office. The improvements essentially fall into two categories: resources and independence.

It was clear from my experience that the Ombudsman’s Office would be well

served by additional investigators. Additional staff would allow for more thorough

reviews and investigations as well as the ability to accept more cases. The Office

also needs a larger budget not only to fund the additional staff, but also to hire experts and pay for independent laboratory analyses as appropriate.

Perhaps even more important is the issue of independence. It is imperative that

the Ombudsman has the final decision as to which cases are investigated and how

the Office’s budget is allocated. It is my impression that EPA too often attempts to

exert influence over the cases that are accepted for review and the extent to which

a case is investigated by constraining the activities that will be funded. Imagine if

EPA could determine the subcommittees’ budgets so as to dictate which oversight

hearings could be held or which bills could be considered. Such a situation would

clearly hinder your ability to oversee the EPA and result in an enormous disservice

to the citizens of this nation.

Just this kind of disservice results when the Ombudsman’s budget is manipulated

so as to impede his investigations. The Ombudsman and his staff are uniquely prepared to review and investigate EPA’s actions because of their extensive knowledge

of the applicable statutes and regulations as well as their broad technical and scientific knowledge. Because the Ombudsman’s Office accepts cases at the request of

elected officials, it functions to support and enhance your ability to scrutinize the

actions and decisions of the EPA.

Fortunately, there are guidelines that describe the proper role and operation of

the Ombudsman. The American Bar Association has established guidelines that appear to be well suited to the EPA National Ombudsman. These guidelines would

provide for the independence and integrity necessary for a constructive Ombudsman’s Office. Also, in 1990 recommendations regarding the role of Ombudsmen

within federal agencies were published in the Federal Register. These guidelines

also appear to uphold the independence and integrity of the Ombudsman. Given

that independent and appropriate guidelines already exist, EPA should not attempt

to create its own set of guidelines for the operation of the Ombudsman’s Office. Internal guidelines would inevitably diminish independence and compromise the integrity of the Ombudsman when just the opposite result is needed.

The argument for a strong EPA Ombudsman comes down to simple human nature: The best incentive for being honest, is knowing you would be caught if you

weren’t. This tenet conveys the vital role that the Ombudsman’s Office plays within

EPA. In order to continue in that role, the Ombudsman’s Office needs support from

Congress both in terms of a secure source of funding and a clear statutory mandate

of independence.

Thank you again for the opportunity to testify before you today. I am happy to

answer any questions that you may have.

Mr. BILIRAKIS. Thank you very much. Very well put.

Ms. Mosley, you are on. Please pull the microphone forward. We

want to be able to hear.

STATEMENT OF MARY MOSLEY

Ms. MOSLEY. I want to thank the distinguished members of the

two subcommittees for the opportunity to speak regarding the role

of the Ombudsman’s Office.

I have been involved in the Stauffer Superfund site in Tarpon

Springs, Florida, for nearly 25 years. During that time, I learned

that Environmental Protection Agency Region 4 is an agency out

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of control and conducts their duties as though their allegiance is

to the polluter rather than to the Superfund communities they are

mandated to protect. The needs of our community have not been

met; and, fortunately for us, Congressman Mike Bilirakis and Robert Martin have been holding hearings since last December asking

questions that the EPA has not wanted to answer.

The EPA has withheld information from our community and is

very polished at misrepresenting the truth, a fact which I am delighted to see has not escaped this panel. At one hearing, in response to Congressman Bilirakis’s polite request to remain more

than 10 minutes to answer the community’s questions, EPA adamantly refused and flounced out of the meeting. The community

was outraged that the EPA would treat an elected official acting

on our behalf in such a manner.

The EPA chose a monolith as a remedy for our Superfund site

which would cover 25 to 35 acres without having first conducted

sufficient testing to determine if the site could ever support a

mound of such magnitude. The site, which contains wastes such as

asbestos, arsenic, radium 226 and more, already has sinkholes, is

surrounded by sinkholes and is, coincidentally, located directly

above two aquifers, one of which serves as the main drinking water

source for a large portion of the State. Should the proposed monolith fail, it would be disastrous to important water supplies.

I might add there have been experts that have attended meetings that said that the monolith will not be successful, that the

sinkholes have already opened communication between the two

aquifers.

Robert Martin and his chief investigator Hugh Kaufman exposed

the flaws of the monolith at Shattuck in Denver. After the investigation by the Ombudsman’s Office, the EPA reversed itself and

admitted that the only way to ensure the public health and welfare

was for Shattuck’s wastes to be hauled to a repository.

The elected officials of Tarpon Springs also feel that the removal

of waste is the only safe solution for our community, but the wastes

at our Superfund site are so toxic that they would have to be treated before a nuclear dump would accept it.

In conclusion, the EPA has worked for 6 years with insufficient

investigations. They now admit to having data gaps. The EPA has

neglected, to date, to adequately define the magnitude and extent

of groundwater contamination originating from the site. Despite

having a poor record of scientific approach, the EPA continues to

decrease the number of contaminants of concern. There are other

problems too numerous to mention in the brief time allotted today.

To counter the failure of the EPA to responsibly administer the

Superfund Act, the Ombudsman’s Office must be well funded and

independent of any attempts that might be made to silence the

voice of truth. The Ombudsman’s Office is one of the best examples

of good and honest government. Please give them the support needed to continue doing their job well.

Thank you.

[The prepared statement of Mary Mosley follows:]

106

PREPARED STATEMENT OF MARY MOSLEY

I would like to thank the distinguished members of the Subcommittee on Health

& Environment and the Subcommittee on Finance & Hazardous Materials for the

opportunity to speak regarding the role of the Ombudsman’s Office.

I have been involved with the Stauffer Superfund Site in Tarpon Springs, Florida

for nearly twenty five years. During that time, I learned that the Environmental

Protection Agency (EPA) Region 04 is an agency out of control and conducts their

duties as though their allegiance is to the polluter rather than to the Superfund

communities they are mandated to protect. The needs of our community have not

been met and fortunately for us, Congressman Mike Bilirakis and Robert Martin,

EPA Ombudsman have been holding hearings since last December asking questions

that the EPA has not wanted to answer.

The EPA has withheld information from our community and is very polished at

misrepresenting the truth. At one hearing, in response to Congressman Bilirakis’

polite request to remain more than ten minutes to answer the community’s questions, EPA adamantly refused and flaunted out of the meeting. The community was

outraged that the EPA would treat an elected official acting on our behalf in such

a manner.

The EPA chose a monolith as a remedy for our Superfund Site which would cover

twenty five to thirty five acres without having first conducted sufficient testing to

determine if the Superfund Site could even support a mound of such magnitude.

The Site which contains wastes such as asbestos, arsenic, radium 226 and more, already has sinkholes, is surrounded by sinkholes, and is coincidentally located directly above two aquifers—one of which serves as a main drinking water source for

a large portion of the state. Should the proposed monolith fail, it would be disastrous to important water supplies.

Robert Martin and his chief investigator Hugh Kaufman exposed the flaws of the

monolith at Shattuck in Denver, Colorado. After the investigation by the Ombudsman’s Office, the EPA reversed itself and admitted that the only way to ensure the

public health and welfare was for Shattuck’s wastes to be hauled to a repository.

The elected officials of Tarpon Springs also feel that the removal of wastes is the

only safe solution for our community, but the wastes at our Superfund Site is so

toxic that it would have to be treated before a nuclear dump would accept it.

In conclusion, the EPA has worked for six years with insufficient investigations

which they now admit to having ‘‘data gaps.’’ The EPA has neglected, to date, to

adequately define the magnitude and extent of groundwater contamination originating from the Site. Having a poor record of scientific approach, the EPA continues

to decrease the number of Contaminants of Concern for the Site. There are other

problems too numerous to mention in the brief time allotted today.

To counter the failure of the EPA to responsibly administer the Superfund Act,

the Ombudsman’s Office must be well funded and independent of any attempts that

might be made to silence the voice of truth. The Ombudsman’s Office is one of the

best examples of good and honest government. Please give them the support needed

to continue doing their job well.

Thank you.

Mr. BILIRAKIS. Thank you, Mary.

Mr. Bowers, you are on, sir.

STATEMENT OF BRET BOWERS

Mr. BOWERS. Thank you, sir. Thank you, Mr. Chairman. Good

morning.

My name is Bret Bowers. It has been nearly 30 years since I

have been to Washington, DC. I used to live here as a young boy.

I am proud to be back.

I am a husband, and I am a father. I am a proud, third-generation Air Force veteran, and I love my country, and I love living in

Coeur d’Alene, Idaho. However, the circumstances that have

brought me here are very disturbing.

I am here on behalf of C.L.E.A.N.—Community Leaders for EPA

Accountability Now—based in Coeur d’Alene, Idaho. I am here to

tell our story, to tell you what EPA has done in our community and

how they have failed to take action on our concerns. Even more,

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I want to explain how important it has been to have an Ombudsman to whom we can appeal when no one else in the EPA would

listen.

C.L.E.A.N. was created in 1998 in response to the EPA’s intention of declaring Lake Coeur d’Alene and our entire region a Superfund site. It doesn’t sit well, knowing that National Geographic

magazine has named our lake one of the five most beautiful lakes

in the world, and today the Idaho Department of Environmental

Quality calls lake Coeur d’Alene a world-class lake.

C.L.E.A.N. organized with support of community and business

leaders, the Chamber of Commerce, realtors, citizens and elected

officials—including county commissioners, city councilmen, mayors

and State legislators. We committed ourselves to understand the

EPA’s processes, recognizing the history that already exists with

Superfund in neighboring Shoshone County, home of the Bunker

Hill Superfund site and upstream of Lake Coeur d’Alene.

The problem that has brought me to here today took 100 years

to create, 14 hours to explain during our Ombudsman hearing, and

I have 5 minutes.

EPA and the Department of Justice actions threaten not only our

economic stability but also our environment and the way others

around the region and the world look at our region.

The EPA would like the Ombudsman and all of us to believe the

Bunker Hill was never limited to the 21 square mile boundary the

EPA helped create on the National Priorities List in 1983. After 17

years, $200 million has been spent in the box. The EPA now wants

to start completely over and expand the site into a 1,500 square

mile region, creating the Nation’s largest Superfund site. Just

when many of us thought the end was near, the EPA wants to

start over by changing the rules.

Therefore, any legislation to reauthorize the Ombudsman is good

news to us. But, sir, we need more than an internal EPA investigation on this. We welcome the Federal Government’s help, not its

heavy hand.

Until the Ombudsman hearing, our local elected leaders believed

the only way they had their voices heard and concerns heard was

to pay for the opportunity through friends of the court amicus

briefs in litigation at the U.S. District and appellate court levels.

We recognize the need for cleanup. So do the mines. They have

offered $250 million to settle a lawsuit and begin cleanup.

Many of us are working in cooperation with the State to finalize

a plan that prioritizes cleanup and develops legislation for Federal

funding that you will have the opportunity to vote on next year.

But questions have been raised dealing with not just the environment, but human health.

How can the EPA discount the scientific, site-specific evidence

showing children living in the Bunker Hill site have a much lower

accumulation of blood lead than EPA’s national default models

show? Why won’t the EPA consider lead-based paint as a potential

source of exposure when the majority of homes in the Silver Valley

were built before the 1970’s?

Today, inside the Bunker Hill site, 94 percent of the children are

within the EPA’s remedial action goal. On average, communities

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inside the Bunker Hill site have been under the Centers for Disease Control’s standard since 1990.

On the environmental side, the discharge from the operating

mines today account for less than 1 percent of the metal floating

in the river system. But after $200 million have been spent in the

box, we now know that EPA’s central impoundment area has become the largest source of metals into the south fork of the Coeur

d’Alene River.

Why should EPA be allowed to mandate a water quality standard State and industry must meet but the EPA cannot achieve

itself at the Bunker Hill site?

Outside the box, science tells us the largest loader of lead into

our watershed is the result of erosion from the river banks. So why

did EPA stall and then reduce in size a stabilization project to the

point there may not be any tangible results?

We are concerned because the threat of basin-wide Superfund

could have devastating economic ripples throughout the inland

Northwest.

Here are the facts for Shoshone County where hard-working families want to turn around the stigma Superfund has placed on them

for the last 20 years. What used to be the world’s largest lead, silver and zinc mining district with 90 operating mines is now down

to just three; 7,500 miners are down to 800. In fact, it is the only

county in Idaho with a population decrease, one of only four nationwide. Shoshone County has had the State’s highest unemployment

rate and highest child poverty rate and has seen its assessed value

drop from $1.3 billion to less than $500 million.

Those facts have caught the attention of all of us, trying to overcome the onslaught of environmental regulations that have but all

shut down our region’s natural resource industries.

EPA believes they can expand the site even though Lake Coeur

d’Alene meets Federal drinking water standards. EPA has studied

and found our beaches are safe. We can swim and play in the lake

all we want, and the Centers for Disease Control’s ATSDR has determined our fish in the lake and in the river and the lateral lakes

and the flood plain are safe to eat.

So why do Federal plans for cleanup call for dredging our river

and the lake with a $3.8 billion price tag that will bankrupt not

only businesses and communities but it will ruin water quality for

decades to come? Why should the EPA be allowed to characterize

our beautiful region in a negative light as they have done repeatedly in national publications?

The Ombudsman investigation put a spotlight on EPA’s position

onsite boundaries. EPA’s view gives them an open-ended time line

at further expense to our communities, our private property rights

and our environment.

So it all boils down to trust. How can we trust the EPA when

in 1991 Region 10 Administrator Dana Rasmussen wrote to Congressman Larry Larocco with, quote, let me state unequivocally, it

is not EPA’s intention to expand the boundaries of the site. We recognize that there are many other regulatory tools besides Superfund legislation to affect environmental improvements.

Yet, now we’re facing major expansion.

Mr. Chairman, I will summarize in closing.

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How can we trust the Department of Justice when they are the

driving force behind the lawsuit and tried to prevent the Ombudsman from taking part in our recent hearing? We shouldn’t be

forced to spend the next 30 years paying off a debt our Federal

Government helped create by sending troops to help mine metals

during the world wars.

I ask you to ensure the National EPA Ombudsman’s Office is reauthorized and that you pass new legislation that seeks to secure

Federal funding for basin cleanup in our region, prevent further

delays in remediation and restore citizens’ faith in government.

After all, had the Ombudsman’s Office not been called in or if

C.L.E.A.N. hadn’t formed, do you think any of the concerns or

questions raised here today by not only me but these other two ladies here would have been brought to anybody’s attention?

Thank you very much.

[The prepared statement of Bret Bowers follows:]

PREPARED STATEMENT OF BRET BOWERS, COMMUNITY LEADERS FOR EPA

ACCOUNTABILITY NOW,

Good morning, my name is Bret Bowers. It’s been nearly 30-years since I lived

in Washington D.C. I’ve returned, as a proud, 3rd-generation Air Force veteran, a

husband and a father... who loves my family and these great United States.

However, the circumstances that have brought me here are very disturbing. I am

here on behalf of C.L.E.A.N., Community Leaders for EPA Accountability now based

in Coeur d’Alene, idaho.

I’m here to tell our story . . . to tell you what EPA has done in our community and

how they’ve failed to take action on our concerns.

Even more, I want to explain how important is has been to have the Ombudsman

to whom we can appeal to... when no one else in the EPA will listen.

CLEAN was created in 1998 . . . in response to the EPA’s intention of declaring

Lake Coeur d’Alene and our entire region a Superfund site. It does not sit

well . . . knowing that National Geographic magazine has named our lake one of the

five most beautiful lakes in the world. Today, the Idaho Department of Environmental Quality calls Lake Coeur d’Alene . . . a world class lake.

C.L.E.A.N. organized... with support of community and business leaders, the

Chamber of Commerce, realtors, citizens and elected officials—including, county

commissioners, city councilmen, mayors, and State legislators.

We committed ourselves to understand the EPA’s process... recognizing the history that already exists with superfund in neighboring Shoshone County... home of

the Bunker Hill Superfund site and upstream of Lake Coeur d’Alene.

The problem that has brought us to this point...took 100-years to create . . . 14-

hours to explain during our recent Ombudsman hearing... and a problem I must describe in 5-minutes.

EPA and Dept. of Justice actions threaten not only our economic stability, but

also our environment... and the way others around the country and the world look

at our region.

The EPA would like the ombudsman and all of us to believe the Bunker Hill site

was never limited to the 21-sq. mile boundary they helped establish on the national

priorities list in 1983.

After 17-years at the site, $200-million dollars have been spent. The EPA now

wants to start completely over, and expand the 21.sq-mile ‘‘box’’ into a 1500-sq. mile

region... creating the nation’s largest Superfund site. Just when many thought the

end was near, the EPA is changing the rules.

Therefore, any legislation to reauthorize the Ombudsman is good news to us.

But . . . we need more than an internal EPA investigation. We welcome the Federal

Government’s help . . . not its heavy hand.

Until the Ombudsman hearing, our local elected leaders believe the only way they

had their concerns heard, was to pay for the opportunity...through ‘‘friends of the

court’’ briefs in litigation at the U.S. District and Appellate Court levels.

We recognize the need for clean-up. So do the mines...they’ve offered $250-million to settle the lawsuit and begin clean-up.

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Many of us are working in cooperation with the State of Idaho to finalize a plan

that prioritizes clean-up... and develops legislation for Federal funding that you will

have the opportunity to vote on next year.

But questions have been raised dealing with not just the environment, but human

health also.

How can the EPA discount the site specific evidence showing children living in

the Bunker Hill site have a much lower accumulation of blood-lead than EPA’s na- tional default models show?

Why won’t the EPA consider lead-based paint as a potential source of exposure

when the majority of homes in the Silver Valley, were built before the 1970’s?

Today, inside the Bunker Hill Superfund ‘‘box’’ . . . 94% of the children are within

the EPA’s remedial action goal. On average, communities inside the Superfund site

have been under the Centers for Disease Control’s standard since 1990.

On the environmental side today...the discharge from the operating mines accounts for less than one-percent of the metals loading in the river system. But, after

$200-million dollars have been spent in the box . . . we now know the EPA’s central

impoundment area has become the largest source of metals into the south fork of

the river.

Why should EPA be allowed to mandate a water quality standard State and industry must meet, but the EPA cannot achieve itself . . . at the Bunker Hill site?

Outside the box... science tells us the largest loader of lead into our watershed . . . is the result of erosion from the river banks. So why did EPA stall and then

reduce in size a stabilization project to the point...there may not be any tangible

results?

We are concerned because the threat of basin-wide Superfund could have devastating economic ripples throughout the inland northwest.

Here are the facts for Shoshone County... where hard working families want to

turn around the stigma Superfund has had on them.

What used to be the world’s largest lead, silver and zinc mining district with 90

operating mines . . . is now down to just three in full-time production. 7500-miners

are down to 800. In fact, it’s the only county in Idaho with a population decrease,

one of only four nationwide.

Shoshone County has had the State’s highest unemployment rate and highest child-poverty rate. And it has seen its assessed value drop from $1.3-billion to less

than $500-million dollars.

Those facts have caught the attention of all of us...trying to overcome the onslaught of environmental regulations that have all but shut down our region’s natural resource industries.

EPA believes they can expand the site... even though Lake Coeur d’Alene meets

Federal drinking water standards. EPA has studied and found our beaches are safe.

We can swim and play in the lake all we want... and the Centers for Disease Control’s A-T-S-D-R has determined our fish in the lake and the river are safe to eat.

So why do Federal plans for clean-up call for dredging our river and the

lake . . . with a $3.8-billion dollar price-tag that will bankrupt businesses and communities and ruin water quality for decades to come?

Why should the EPA be allowed to characterize our beautiful region in a negative

light as they have done in national publications?

The Ombudsman investigation put a spotlight on EPA’s position on site boundaries. EPA’s view gives them an open-ended timeline at further expense to our communities, our private property rights and our environment.

And so it all boils down to trust. How can we trust the EPA... when in 1991, Region-10 Administrator Dana Rasmussen wrote to Congressman Larocco with, ‘‘Let

me state unequivocally, it is not EPA’s intention to expand the boundaries of the

site. We recognize that there are many other regulatory tools besides superfund legislation to affect environmental improvements.’’ Yet, now we’re facing major expansion?

How can we trust the Department of Justice when they are the driving force behind the lawsuit, and tried to prevent the Ombudsman from taking part in our recent hearing?

In closing, we shouldn’t be forced to spend the next 30-years paying off a debt

our Federal Government helped create . . . by sending troops to help mine metals

during the world wars.

I ask you to ensure the national EPA Ombudsman’s Office is reauthorized. and,

that you pass new legislation that seeks to secure Federal funding for basin cleanup, prevent further delays in remediation and restore citizen’s faith in government.

After all, had the Ombudsman not been called in, or if CLEAN hadn’t

formed . . . do you think any of the concerns and questions raised today would have

been brought to your attention?

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Mr. BILIRAKIS. Thank you, Mr. Bowers.

I am going to recognize myself.

I know that Ms. Mosley, for instance, has been a very active environmentalist in our area for a long, long time, very much concerned about the environment, very consumer oriented. I would

wager to say that Ms. Boggiatto and Mr. Bowers have been in the

same category. So the thing that has really amazed me about all

of this is the fact that it is the people who are so very pro-environment who appear to have lost confidence in the credibility of the

Environmental Protection Agency.

Now, any comments regarding that, Ms. Boggiatto?

Ms. BOGGIATTO. Yes, thank you.

Actually, when I first moved—— Mr. BILIRAKIS. Short comments, I only have 5 minutes.

Ms. BOGGIATTO. Sure. I have lost some confidence. I used to have

a lot of faith in the Environmental Protection Agency to always use

the best available science and data, and after the involvement with

the Shattuck site I realized that that is not always the case, which

is unfortunate.

Mr. BILIRAKIS. Yes, it is really unfortunate, isn’t it? You start to

lose faith in your government, so to speak.

Ms. Mosley.

Ms. MOSLEY. Congressman Bilirakis, before Mr. Martin’s office

was contacted, we tried to contact, many of us in the community,

the Region 4 Ombudsman’s Office; and, to my knowledge, none of

our calls were returned. At least I can speak for myself, none were

returned.

Thank you, sir.

Mr. BILIRAKIS. And that is significant because there are regional

Ombudsmen, so to speak. Mr. Fields referred to them, with the

idea of basically trying to convince us that it is really not just one

Ombudsman but a number of them spread around the country. And

what you are saying is that, for the longest time, they still didn’t

return your calls. I know your persistence and your perseverance,

and I think that also speaks for many of the people in the group

down there who have shown their concern in this regard.

Ms. MOSLEY. That is right.

Mr. BILIRAKIS. EPA is in the room, and I hope they are picking

all that up.

Mr. Bowers.

Mr. BOWERS. Mr. Bilirakis, what I also would like to say is simply that, to give you an idea, just during the RIFS litigation, litigation for a lawsuit that is going to go to trial in January, and during

the RIFS that we have been involved with over the Coeur d’Alene

Basin, just in the last 21⁄2 years EPA has spent roughly a million

dollars a month on litigation and studies instead of cleanup. That

should really summarize, hopefully, to you and to all the folks here

on Capitol Hill that if they are so concerned about the environment

then why are they spending more money fighting through litigation

rather than helping the communities that know that some cleanup

still may need to be done regardless of how it got there or who is

responsible?

Mr. BILIRAKIS. I know Ms. Chenoweth-Hage will go into this, but

when did the EPA’s involvement in Coeur d’Alene start?

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Mr. BOWERS. Well, the EPA started in 1983 with the Bunker Hill

Superfund site. It was declared as the box on the NPL, as my testimony indicated, and now they want to start completely over and

start from square one. And our communities, especially the communities surrounding the Bunker Hill site in particular, have had it;

and they are literally at breaking point in terms of emotional stress

over this issue and what lies ahead in terms of the next potentially

30 years.

Mr. BILIRAKIS. Are there EPA personnel located in the area that

have been there for some time?

Mr. BOWERS. Yes, there are.

Mr. BILIRAKIS. I have always been wanting to get that clear in

my mind. Go ahead. Why don’t you explain that?

Mr. BOWERS. I am not sure exactly how long the personnel that

have been there have been there. I know that, to give you an idea

of the questionable judgment on their call by the EPA staff in our

region serving at the Bunker Hill site, they have gone to great

lengths not only in national publications to disparage our community with some of their negative comments, but they are actually

handing out propaganda from extreme environmental groups critical of the natural resource industries. The EPA has been handing

out that documentation.

Mr. BILIRAKIS. The EPA has been handing that out?

Mr. BOWERS. That is correct.

Mr. BILIRAKIS. And you know that for a fact?

Mr. BOWERS. Handed it right to me on a tour.

Mr. BILIRAKIS. EPA personnel?

Mr. BOWERS. That is right.

Mr. BILIRAKIS. And are they located there?

For instance, in our site down in Tarpon Springs, Florida, we

don’t have any EPA people that are actually located right in the

site area. Do you have EPA people that are located right in the

area and working on this effort?

Mr. BOWERS. I am not sure of how many of the ones that routinely work on our site at Bunker Hill live in the area.

I know that one, the gentleman I am referring to is Earl

Liverman, he lives in Coeur d’Alene and commutes back and forth,

which is about 40 miles upstream. But we can get folks flying over

from Seattle Region 10 headquarters on a regular basis at the drop

of a dime for the environmental groups to come over and help explain such things as the RIFS or whatever they want to come over

and talk about. They will drop a dime and fly right over, but yet

they are not necessarily responsive to our needs about the concerns

we have for our environment.

Mr. BILIRAKIS. The expenditures have been approximately a million dollars a month and this goes back to the early 1980’s?

Mr. BOWERS. No, no, sir. The million dollar a month figure that

I gave you is just during the course of the RFIs which began late

1997.

Mr. BILIRAKIS. I see.

Well, my time is up. Gentlelady from Colorado.

Ms. DEGETTE. Thank you, Mr. Chairman.

Ms. Boggiatto, you were in the room when you heard Mr. Fields

testify that the recent disclosures by the Department of Energy

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about sites that were involved in processing radioactive and toxic

materials should not change the timetable for cleanup. Do you

think that that will give some reassurance to the neighbors who

are concerned that this will be further delayed?

Ms. BOGGIATTO. The fact that Mr. Fields said it wouldn’t be?

Ms. DEGETTE. Right.

Ms. BOGGIATTO. No.

Ms. DEGETTE. Why not?

Ms. BOGGIATTO. I am sure Mr. Fields has the best intentions, as

he has been quite good in our community, coming out to talk with

us and such. But the fact that EPA doesn’t intend for something

to delay their actions doesn’t necessarily correlate to actual delays,

in my experience; and I hope that it does not. But the citizens do

want a full characterization of what is actually at that site; and,

as I understand it, for the trainloads or the truckloads to move off

the site they will have to know what exactly is in it so they will

know what kind of facility is licensed. So I hope that can be done

as quickly as possible. These sort of fears from the Ombudsman’s

Office about what kinds of things could be there have been coming

up now for at least a year, and I would certainly like to see an aggressive investigation so that it wouldn’t——

Ms. DEGETTE. Why it is important for the neighbors to have a

cleanup schedule that has some certainty and also some efficiency,

if you will?

Ms. BOGGIATTO. Well, we would like to see the waste dump gone.

I mean, after all, no one needs to see that every day in your neighborhood; and it would be very nice to have that over with. There

is still a lot of effort on the community’s part, working with EPA

and businesses around the area, on how all this will happen and

how the waste is being characterized, if it is the same as the other

sites. There are still some controversies that are sort of ensuing

that take a lot of people’s emotional energy as well as physical

time, and we would all like I think for a nice, clean site and to see

a developed site in this area.

Ms. DEGETTE. People have been concerned about what is on the

site and whether it is leaking, whether the characterization was

correct, for 8 or 9 years now, right?

Ms. BOGGIATTO. Oh, absolutely. In fact, they were told back in

the early 1990’s that the waste would be removed and that it was

dangerous and that was what was necessary. They have been concerned for at lest a decade, and we would like to see this gone, both

for the potential health effect as well as the environmental effects

that that site would have as well.

Ms. DEGETTE. Thank you.

Mr. Bowers, just to clarify, it looks to me, in reviewing your testimony and also your vitae, that C.L.E.A.N. is basically a group that

is put together by businesses and the Chamber of Commerce to

make sure that their interests are being represented. Would that

be a fair assessment?

Mr. BOWERS. Not only businesses and the Chamber of Commerce, ma’am, but certainly it includes our elected officials at the

city and county and State representative level.

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Ms. DEGETTE. Okay. But now you are actually on the payroll of

the Chamber of Commerce and then C.L.E.A.N. is pretty much an

arm of the Chamber of Commerce, would that be correct?

Mr. BOWERS. That is correct.

Ms. DEGETTE. Thank you, Mr. Chairman. I don’t have any further questions and yield back the balance of my time.

Mr. BILIRAKIS. The gentleman from Illinois.

Mr. SHIMKUS. Thank you, Mr. Chairman; and I appreciate those

testifying here today.

Ms. Mosley, you were here when Mr. Fields was testifying and

obviously you followed a lot of the questions and the Ombudsman

reports to his deputy. Do you believe people in the local community

understand that the Ombudsman is just another EPA employee?

Ms. MOSLEY. Oh, I think they, the average person, thinks that

he is an EPA employee, but he certainly is not average.

Mr. SHIMKUS. And following the discussions we had and using

the terminology of the law, the Ombudsman was supposed to have

access to the highest officials in the EPA. Do you think that is— based upon your observation of the testimony earlier today, do you

think that occurs?

Ms. MOSLEY. Absolutely not.

Mr. SHIMKUS. Ms. Boggiatto, do you think that actually occurs,

same question, based upon—I know you are a little bit—you are a

little bit different because you had, if I am correct, a lot of frustration over many, many years, like many of us do, but you have actually seen some positive aspects and then now might be a change

back as we look at—so the same question, do you think that the

Ombudsman—the application of the statute and the authorization

says he has access to the officials in the EPA. Do you think that

is true?

Ms. BOGGIATTO. I think he has access to Mr. Fields, and he is

one of the highest officials. Access is one thing. Actually being sort

of listened to and respect and supported well is another.

Mr. SHIMKUS. Thank you.

Mr. Bower, same kind of question.

Mr. BOWERS. Sir, could you repeat the question for me?

Mr. SHIMKUS. Well, the basic tenet of the authorization legislation says that the Ombudsman should have access to the highest

officials in the EPA. Do you think that that occurs?

Mr. BOWERS. Well, he might have access to the highest officials

within the EPA, but I am afraid that, despite the efforts of that we

have already seen in our communities with the Ombudsman and

certainly with the tape that I have brought here today—and I hope

I get a chance to show that or at least enter it into the record—

I can certainly say for a fact that I am not so sure EPA Region 10,

let alone headquarters right here in our Nation’s capital, really

does care about any of the findings that the Ombudsman’s Office

has.

Mr. SHIMKUS. And let me just follow up, again, you observed the

discourse we had on small business liability relief and the trouble

we have getting language from the EPA. Ms. Boggiatto, it reminded me of a comment you made that here we had promises in

the 1990’s that the waste would be removed; and then based upon

those promises—those promises not being fulfilled or at least unVerDate 11-MAY-2000 14:19 Apr 06, 2001 Jkt 010199 PO 00000 Frm 00118 Fmt 6633 Sfmt 6602 E:\HEARINGS\67120 pfrm08 PsN: 67120
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certainty is pervasive. Those are kind of reaffirmation of the kind

of frustrations we have with EPA and frustration and inability to

get some clear guidance and affirmation of what is going to occur

in the future and how we can move.

Tell me how that affects—and I think my colleague Diana

DeGette mentioned this—how does this affect the community when

there is uncertainty and, really, your association and

organization——

Ms. BOGGIATTO. Well, as we all know, when you live next to a

toxic or radioactive waste dump, you live—and I don’t live right

next to this site, but many of the citizens I work with do live within sight of it—that is emotionally stressful, to say the least, because you are in fear for your health and your children’s health

and the rest of your family’s health; and I think that toll is a huge

burden.

It also—the fact that in 1992 or so the citizens were told by EPA

that the preferred alternative was removal and that they then

changed, reversed course without going back to public comment on

that and then said, ‘‘Tough luck, watch us bury it’’ there is—it is

hard to—it is sort of hard to regain the faith in the administrative

agency after that.

In fact, when I first moved to Denver, I did not get involved in

this site because I was convinced the citizens had it wrong, that

EPA could not have done what they were alleging, and waited a

couple of years until 1998 to finally get involved, when I realized,

you know, that I think there is something here.

Mr. SHIMKUS. Exactly the same experience I felt with the issue.

The EPA comes in and says, ‘‘Tough luck, you settle or you get

sued.’’ That is just a bad way of doing business.

I would end with this, Mr. Chairman, and ask for our panelists

here also to—if they could, in their reviewing of the process, what

recommendations would you provide for us if we look at reauthorizing the Ombudsman—what more tools does he need? I mean, you

are on the front lines. You are trying to deal with issues. How do

we empower him to get the word to the highest officials in the

Agency and not only get heard but have a receptive ear?

Mr. BILIRAKIS. Might I recommend a very, significant question?

Might I recommend that they ought to give some thought to it

based on their experiences, and hopefully they can furnish that to

us in writing, John.

Mr. SHIMKUS. That is what I would request, Mr. Chairman.

Mr. BILIRAKIS. That is, I think, a very good idea. Would you be

willing to do that? There will be additional questions that will be

furnished to you. I don’t know how we are on reauthorization because of what is happening up here, with only a few days to go and

that sort of thing, but it may be on a fast track. Hopefully, it is.

So the sooner you provide us your suggestions, and recommendations in response to Mr. Shimkus’ question on the Ombudsman

areas you feel ought to be changed or improved, the better.

I didn’t mean to cut you off.

[The following was received for the record:]

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Mr. SHIMKUS. I have finished with my questions. I appreciate

you taking the time to visit with us.

I yield back my time.

Mr. BILIRAKIS. The gentlelady from Idaho, Mrs. ChenowethHage.

Mrs. CHENOWETH-HAGE. Thank you, Mr. Chairman.

Mr. Chairman, before I begin my questioning, I have a matter

here. It is entitled, The Investigative Report Concerning Abuse of

Federal Law and the Citizens of North Idaho by the EPA. It is an

investigative congressional investigative report that I put together.

It is in its draft final stage; and I would, without objection, like to

enter the final report into the record.

It points out 18 different areas that this Ombudsman, who has

an average of $35,000 a case, he is looking into 18 different issues.

He looks into everything I want to him to, just in this one site. It

is so massive.

Mr. Chairman, I remember a long time ago a judge said to me

during a hearing, you never want to open a door in a line of questioning that you are not prepared to walk through as well as everybody else, let everybody else in. Well, that happened up in the

hearing. That was a 14-hour hearing conducted by our Ombudsman, and that has been captured on film. I have referred to it, as

has Mr. Bowers; and I wonder if, without objection, if we might be

able to show that 31⁄2 minute film of the questioning by the Ombudsman of an EPA attorney.

So I would yield back the balance of my time if, without objection, we can do that, Mr. Chairman.

Mr. BILIRAKIS. How long will that take?

Mr. BOWERS. Three and a half minutes.

Mr. BILIRAKIS. Three and a half minutes. Let us do it, if there

is no objection.

Ms. DEGETTE. Mr. Chairman, if I can just—reserving my right

to object. I am not going to object. Let me just say that we didn’t

learn about the videotape until this morning. It wasn’t submitted

as part of the prepared testimony of Mr. Bowers. But, having said

that, I am always a proponent of sunshine.

Let me just add that the issue of the boundaries of the Bunker

Hill site is moot, because the Court of Appeals overturned the challenge and no one challenged it in the District of Columbia. So the

issues in the Asarco case, which is scheduled to start on January

22 of next year, are the liability and natural resources damage

issues, and that is going to be happening in the District Court of

Idaho.

So I would ask that a summary of the scope of the facility and

the actual transcript sections where this issue was discussed at the

Ombudsman hearing on August 19 of this year be inserted into the

record to supplement the videotape so that we can have the full

discussion rather than an edited portion. I think it is irregular to

have edited portions of field hearings shown in hearings, but I

won’t object to it so long as the record——

Mr. BILIRAKIS. Without objection, that will be the case. Thank

you very much for your consideration.

[The information referred to follows:]

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[Video played.]

Mr. BOWERS. That is the end of the video.

Mrs. CHENOWETH-HAGE. Mr. Chairman, I see my time is up.

Mr. BILIRAKIS. I thank the gentlelady.

Well, I think our time is up, and we will excuse the panel.

I will just say Ms. DeGette is the only one of the members of the

subcommittee left, but if she could have experienced—and she

probably has, maybe even more so at Shattuck—what we have

been going through down there regarding the premature decisionmaking without full and adequate research, I think we would all

be pretty shocked and aghast at the overall picture.

Ms. DEGETTE. If the gentleman would yield, that was the part

of the problem that we saw in Shattuck, was apparently in the late

1980’s, early 1990’s, under the Reagan/Bush, or at least the Bush

administration, EPA, the initial record of decision was apparently

made in back rooms between the Region 8 EPA administrator,

Shattuck and heavens knows who else.

So, you know, one of the great things that we have really cherished in Denver is the community activists who just wouldn’t take

no for an answer ever and also the active involvement of the Ombudsman who really helped all of us who were working on it. So

thank you for your leadership on this, and good luck to all your

folks in Florida.

Mr. BILIRAKIS. And good luck to all your folks in Denver, and

hopefully we can work together when it comes to reauthorization.

Mrs. CHENOWETH-HAGE. Mr. Chairman, before you bring the

gavel down, I would just have one point that I would like to clarify

that was brought up. That is the Asarco suit. That case was almost

remanded—almost all of it was remanded back. So there are many,

many other issues involved in the Superfund site in northern

Idaho, and it will be in ongoing litigation. Thank you, Mr. Chairman.

Mr. BILIRAKIS. Thank you.

Mr. Bowers and ladies, Ms. Boggiatto and Ms. Mosley, thank you

so very much for taking time away from your families—Ms. Mosley

brought her family with her—and your jobs to come here. Some of

you have traveled quite a distance, and we appreciate it very much.

Again, get that information to us and anything else that you feel

you haven’t already communicated here today which you feel might

be significant in what we are going to do.

This hearing is adjourned.

[Whereupon, at 12:50 p.m., the subcommittees were adjourned.]

[Additional material submitted for the record follows:]

[EPA did not respond to questions 2, 3, 6, and 9 of letter

sent by Chairman Bilirakis and Chairman Oxley.]

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