[House Hearing, 106 Congress] [From the U.S. Government Publishing Office] THE ROLE OF THE EPA OMBUDSMAN IN ADDRESSING CONCERNS OF LOCAL COMMUNITIES ======================================================================= JOINT HEARING before the SUBCOMMITTEE ON FINANCE AND HAZARDOUS MATERIALS and the SUBCOMMITTEE ON HEALTH AND ENVIRONMENT of the COMMITTEE ON COMMERCE HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTH CONGRESS SECOND SESSION __________ OCTOBER 3, 2000 __________ Serial No. 106-161 __________ Printed for the use of the Committee on Commerce U.S. GOVERNMENT PRINTING OFFICE 67-120 WASHINGTON : 2000 COMMITTEE ON COMMERCE TOM BLILEY, Virginia, Chairman W.J. ``BILLY'' TAUZIN, Louisiana JOHN D. DINGELL, Michigan MICHAEL G. OXLEY, Ohio HENRY A. WAXMAN, California MICHAEL BILIRAKIS, Florida EDWARD J. MARKEY, Massachusetts JOE BARTON, Texas RALPH M. HALL, Texas FRED UPTON, Michigan RICK BOUCHER, Virginia CLIFF STEARNS, Florida EDOLPHUS TOWNS, New York PAUL E. GILLMOR, Ohio FRANK PALLONE, Jr., New Jersey Vice Chairman SHERROD BROWN, Ohio JAMES C. GREENWOOD, Pennsylvania BART GORDON, Tennessee CHRISTOPHER COX, California PETER DEUTSCH, Florida NATHAN DEAL, Georgia BOBBY L. RUSH, Illinois STEVE LARGENT, Oklahoma ANNA G. ESHOO, California RICHARD BURR, North Carolina RON KLINK, Pennsylvania BRIAN P. BILBRAY, California BART STUPAK, Michigan ED WHITFIELD, Kentucky ELIOT L. ENGEL, New York GREG GANSKE, Iowa TOM SAWYER, Ohio CHARLIE NORWOOD, Georgia ALBERT R. WYNN, Maryland TOM A. COBURN, Oklahoma GENE GREEN, Texas RICK LAZIO, New York KAREN McCARTHY, Missouri BARBARA CUBIN, Wyoming TED STRICKLAND, Ohio JAMES E. ROGAN, California DIANA DeGETTE, Colorado JOHN SHIMKUS, Illinois THOMAS M. BARRETT, Wisconsin HEATHER WILSON, New Mexico BILL LUTHER, Minnesota JOHN B. SHADEGG, Arizona LOIS CAPPS, California CHARLES W. ``CHIP'' PICKERING, Mississippi VITO FOSSELLA, New York ROY BLUNT, Missouri ED BRYANT, Tennessee ROBERT L. EHRLICH, Jr., Maryland James E. Derderian, Chief of Staff James D. Barnette, General Counsel Reid P.F. Stuntz, Minority Staff Director and Chief Counsel ______ Subcommittee on Finance and Hazardous Materials MICHAEL G. OXLEY, Ohio, Chairman W.J. ``BILLY'' TAUZIN, Louisiana EDOLPHUS TOWNS, New York Vice Chairman PETER DEUTSCH, Florida PAUL E. GILLMOR, Ohio BART STUPAK, Michigan JAMES C. GREENWOOD, Pennsylvania ELIOT L. ENGEL, New York CHRISTOPHER COX, California DIANA DeGETTE, Colorado STEVE LARGENT, Oklahoma THOMAS M. BARRETT, Wisconsin BRIAN P. BILBRAY, California BILL LUTHER, Minnesota GREG GANSKE, Iowa LOIS CAPPS, California RICK LAZIO, New York EDWARD J. MARKEY, Massachusetts JOHN SHIMKUS, Illinois RALPH M. HALL, Texas HEATHER WILSON, New Mexico FRANK PALLONE, Jr., New Jersey JOHN B. SHADEGG, Arizona BOBBY L. RUSH, Illinois VITO FOSSELLA, New York JOHN D. DINGELL, Michigan, ROY BLUNT, Missouri (Ex Officio) ROBERT L. EHRLICH, Jr., Maryland TOM BLILEY, Virginia, (Ex Officio) (ii) Subcommittee on Health and Environment MICHAEL BILIRAKIS, Florida, Chairman FRED UPTON, Michigan SHERROD BROWN, Ohio CLIFF STEARNS, Florida HENRY A. WAXMAN, California JAMES C. GREENWOOD, Pennsylvania FRANK PALLONE, Jr., New Jersey NATHAN DEAL, Georgia PETER DEUTSCH, Florida RICHARD BURR, North Carolina BART STUPAK, Michigan BRIAN P. BILBRAY, California GENE GREEN, Texas ED WHITFIELD, Kentucky TED STRICKLAND, Ohio GREG GANSKE, Iowa DIANA DeGETTE, Colorado CHARLIE NORWOOD, Georgia THOMAS M. BARRETT, Wisconsin TOM A. COBURN, Oklahoma LOIS CAPPS, California Vice Chairman RALPH M. HALL, Texas RICK LAZIO, New York EDOLPHUS TOWNS, New York BARBARA CUBIN, Wyoming ANNA G. ESHOO, California JOHN B. SHADEGG, Arizona JOHN D. DINGELL, Michigan, CHARLES W. ``CHIP'' PICKERING, (Ex Officio) Mississippi ED BRYANT, Tennessee TOM BLILEY, Virginia, (Ex Officio) (iii) C O N T E N T S __________ Page Testimony of: Boggiatto, Kimberly.......................................... 101 Bowers, Bret, Executive Director, Community Leaders for EPA Accountability Now!........................................ 106 Fields, Timothy, Assistant Administrator, Office of Solid Waste and Emergency Response, U.S. Environmental Protection Agency..................................................... 39 Martin, Robert, Ombudsman, U.S. Environmental Protection Agency..................................................... 44 Mosley, Mary................................................. 104 Material submitted for the record: Dingell, Hon. John D., letter dated October 12, 2000, to Nikki L. Tinsley, Inspector General, U.S. Environmental Protection Agency, enclosing questions for the record, and responses to same.......................................... 159 Shapiro, Michael H., Acting Assistant Administrator, EPA, letter dated February 5, 2001, enclosing response for the record, with attachments................................... 136 (v) THE ROLE OF THE EPA OMBUDSMAN IN ADDRESSING CONCERNS OF LOCAL COMMUNITIES ---------- TUESDAY, OCTOBER 3, 2000 House of Representatives, Committee on Commerce, Subcommittee on Finance and Hazardous Materials, Joint with Subcommittee on Health and Environment, Washington, DC. The subcommittees met, pursuant to notice, at 10:10 a.m., in room 2123, Rayburn House Office Building, Hon. Michael G. Oxley (Chairman, Subcommittee on Finance and Hazardous Materials) presiding. Members present, Subcommittee on Finance and Hazardous Materials: Representatives Oxley, Largent, Shimkus, Blunt, Ehrlich, Barrett, and Luther. Members present, Subcommittee on Health and Environment: Representatives Bilirakis, Cubin, Bryant, Brown, Green, and DeGette. Also present: Representatives Sawyer and Chenoweth-Hage. Staff present: Robert Meyers, majority counsel; Amit Sachdev, majority counsel; Robert Simison, legislative clerk; Richard A. Frandsen, minority counsel; and Sarah A. Keim, Presidential Management Intern. Mr. Oxley. The subcommittee will come to order. The Chair would recognize the cochair of our hearing today, Chairman Bilirakis, chairman of the Health and Environment Subcommittee, for an opening statement. Mr. Bilirakis. Thank you, Mr. Chairman; and I want to thank you and your staff for your cooperation in holding this hearing. Your subcommittee has more jurisdiction in this matter than does ours, but I know that we are all greatly concerned about this particular issue, and I want to thank you. I also want to welcome our witnesses and audience to today's hearing concerning the role of the U.S. Environmental Protection Agency's national hazardous waste and Superfund Ombudsman in addressing concerns of local communities. Today, we will seek to address several basic questions. First, we are interested in understanding the Office of the Ombudsman's interaction with the general public, as well as the relationship between this office and other offices within EPA. We are interested in hearing the services which the Office of the Ombudsman provides and whether the office is allowed sufficient independence. We are also interested in Assistant Administrator Fields' view of the Office of the Ombudsman and what EPA considers to be the permissible functions of the office. One of EPA's stated goals is to ensure, and I am quoting, that all parts of society--communities, individuals, business, State and local government and tribal governments--have access to accurate information sufficient to effectively participate in managing human health and environmental risks, end quote. Unfortunately, many citizens around the country would contend that EPA has failed in its relationship with local communities. Chairman Oxley and I requested this joint hearing after becoming acquainted with several instances in which communities were unhappy with the EPA's responsiveness to their needs, particularly with regard to Superfund sites. In many cases, the EPA Ombudsman has become involved and opened up avenues of communication for the public's concerns to be taken into consideration. I have received letters from people all over the United States expressing their support for the EPA Ombudsman. I have those letters bundled, Mr. Chairman, and I ask unanimous consent to enter these into the record. Mr. Oxley. Without objection. 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Mr. Chairman, I have also experienced the work of the Ombudsman firsthand at the Stauffer Superfund site in my hometown of Tarpon Springs, Florida. At this site it became increasingly clear over several years that many of my constituents were shut out of the cleanup process. They felt that their concerns were not heard by EPA officials in charge of the site. Therefore, at my request, the EPA Ombudsman is conducting an independent review of the Stauffer cleanup plant. To date, public meetings with the Ombudsman have successfully highlighted the need for additional scientific studies and increased local residents' confidence in the Superfund process. My concern is to ensure that the Ombudsman's Office is allowed to continue to provide assistance to local communities in holding EPA accountable. While EPA officials have publicly and privately assured me of their full support for the Ombudsman's efforts, their actions suggest a different attitude. Over the past several months, EPA and Justice Department officials have nearly derailed the Ombudsman's investigation of the Stauffer site and other cases. Shortly before a scheduled public meeting in June of this year, EPA national officials indicated to the Ombudsman that insufficient funds were available for him to continue his investigation at the Stauffer site. Only after Chairman Oxley, Chairman Tauzin and I intervened did the Agency make a commitment to provide the necessary resources. At the June meeting in Tarpon Springs, Florida, EPA Region 4 representatives made a brief presentation regarding the Stauffer site. After only 10 minutes they abruptly walked out in the middle of a question. Naturally, my constituents and I were outraged by this display of contempt, dare I say arrogance, on the part of EPA representatives. While I am certainly concerned about the Stauffer site and the well-being of my constituents, my experiences, Mr. Chairman, also led me the to question whether Stauffer is an isolated case or is symptomatic of local concerns across the country; and that is the key point of this hearing. Are Stauffer and the other sites where the Ombudsman has been involved isolated cases or do they represent just the tip of the iceberg? Are we dealing with a true exceptional case or is this business as usual at the EPA? At this point, Mr. Chairman, I would like to extend a very warm welcome to one of my constituents, Mary Mosley, a Tarpon Springs resident and former city commissioner. Ms. Mosley will testify in more detail about the EPA and the Ombudsman's involvement in the Stauffer case. We look forward to hearing her statement as well as the statements of the other citizen witnesses, Mr. Bret Bowers from Coeur d'Alene, Idaho, and Ms. Kimberly Boggiatto from Denver, Colorado. I want to thank you all for your time and effort in traveling to testify here today. I also want to welcome, Mr. Chairman, Mr. Timothy Fields, Assistant Administrator of EPA's Office of Solid Waste and Emergency Response, and also the Ombudsman, Mr. Robert Martin. Mr. Fields is no stranger to this committee, and I know we all look forward to hearing the administration's views on the role of the Office of the Ombudsman and its relationship with EPA. Thank you, Mr. Chairman. Mr. Oxley. I thank the gentleman and now recognize the ranking member for the Health and Environment Subcommittee, gentleman from Ohio, Mr. Brown. Mr. Brown. Thank you, Mr. Chairman. Today we are holding an oversight hearing on the Office of the Ombudsman at the EPA. This office was created 16 years ago with the passage of the Hazardous and Solid Waste Amendments of 1984. The function of the EPA Ombudsman is to receive individual complaints, grievances and requests for information submitted by any person with respect to the hazardous waste program, to render assistance and to make appropriate recommendations to the EPA administrator. I support the function of the Ombudsman. People need a place to go if an agency bureaucracy is not responding to inquiries from the public and is not functioning in an open manner. The Ombudsman provides an opportunity for citizens to express their views and a channel for those views to be taken into consideration. The Ombudsman is currently involved in 14 cases around the country, including two in my own State of Ohio. To appropriately and effectively fulfill the function of the office, the Ombudsman must also perform his duties impartially and responsibly, gathering facts and information in an objective manner and treat all parties, including employees of the executive branch, fairly. I welcome our witnesses today and look forward to their testimony. Mr. Oxley. I thank the gentleman. The Chair would now recognize himself for an opening statement; and I am also pleased to be holding the joint subcommittee hearing today with my colleague, Mr. Bilirakis, chairman of the Health and Environment Subcommittee, on the role of the EPA Ombudsman in addressing concerns of local communities. This is a hearing that goes to the heart of the public's faith in government. People who live near Superfund sites have turned to the government for explanations on health. Responsiveness of EPA to these citizens has been a concern of my mine for a long time. With the goal of promoting faster and safer cleanups, I, along with many colleagues, have introduced Superfund reform bills that would increase local participation in the remedy selection process and that would make community involvement a more integral part of EPA's cleanup criteria. The Ombudsman's Office within EPA plays an important role. It serves as a citizen watchdog and as a backstop to ensure that the best decisions are being made for their community. Trust in the process is heightened when people know they have an independent voice to closely examine an agency decision. Mistrust often leads to controversy and cleanup delays. Therefore, I was very disturbed when my friend Mr. Bilirakis told me that EPA appears to be impeding the helpful work that the Ombudsman's Office has been doing in his District. We had a telephone conversation with Administrator Browner on that subject. Yet that conversation did not prevent the inexcusable conduct of regional EPA personnel who subsequently walked out of a public meeting in my colleague's district. Since then I have learned of a Department of Justice letter that threatens to disrupt the Ombudsman's investigative work at the Coeur d'Alene site in Idaho. These situations speak directly to the independence of the Ombudsman and to the credibility of the Agency. No one, not elected officials, not appointed agency bureaucrats, should be afraid to have their decisions subjected to public scrutiny. I look forward to hearing firsthand from the citizens who have been dealing with EPA and the Ombudsman regarding Superfund sites in their community. I will be looking for EPA assurances that the Ombudsman's Office has the resources and the independence to play a constructive role in communities with Superfund sites. I welcome our witnesses today--Mr. Fields, welcome back to the subcommittee; we are looking forward to your testimony--and now recognize the gentleman from Ohio, Mr. Sawyer. Mr. Sawyer. Thank you, Mr. Chairman. Although I am not a member of either subcommittee, I do serve with you on the full committee; and I appreciate your forbearance in allowing me to take part in these hearings today. I have a statement I will submit for the record. I look forward to hearing from our witnesses. Mr. Oxley. We thank you for your participation. Are there other opening statements? The gentleman from Illinois, Mr. Shimkus. Mr. Shimkus. Thank you, Mr. Chairman. Thank you for holding this very important hearing. You know this is an issue that--not just the Ombudsman but small business regulatory relief is something near and dear to my heart. Since February 1999, I have been working to help 159 innocent small businesses in Quincy, Illinois, to obtain freedom from the Superfund litigation nightmare. And it has been a nightmare, and it continues to be a nightmare. Last week, when the EPA Administrator Carol Browner disproved the Small Business Liability Relief Act, killed its chances in the House and the measure failed, I lost all faith that EPA really wanted to work toward small business relief. Yesterday, when I heard the Keystone Pennsylvania lawsuit had settled and the EPA was touting a small business victory, I was appalled but not surprised that the settlement explicitly preserves waste management's lawsuit against Barbara Williams, another famous name in the fight against the bureaucracy, restaurateur from Gettysburg, Pennsylvania. I just wish Chairman Goodling was here to join us, the restaurant owner who we all heard about numerous times. Let me read from some of the release of the EPA: EPA is pleased to conclude this extensive, expensive and contentious litigation. That is why we need Superfund reform--because it is expensive, extensive and contentious. Here's another quote from their release: But Congress still needs to address the basic deficiency in the Superfund law which allowed this huge number of defendants to be sued. Hence, House Resolution 5175 which the EPA fought to defeat on the floor. Also, listen to this, the part of the release: When the United States sued 11 parties, these parties then sued 130 additional parties, and these 130 additional parties sued 500 additional parties. That is the problem with--that is why we need Superfund reform. I understand this hearing is to investigate the role of the EPA Ombudsman and addressing concerns of local communities. I would just ask, where were you in Quincy, Illinois? I look forward to hearing about how the office has been successful, and I am sure we will hear where it has failed. And I will look for asking questions of how it can be improved so that you know the people who are caught in this type of litigation trap can get some relief from the Federal Government. I want to welcome the two panels. I do appreciate you coming. Mr. Chairman, I thank you for calling the hearing. I appreciate Chairman Bilirakis also being here, and I yield back the balance of my time. Mr. Oxley. Gentleman yields back. The gentlelady from Colorado. Ms. DeGette. Thank you, Mr. Chairman. I would like to, first of all, welcome Kim Boggiatto for being here today. She is a resident of the Overland Park community in my home city of Denver and was instrumentally involved in successful efforts to force the Environmental Protection Agency to remove radioactive wastes from the Shattuck Superfund site in Denver, Colorado, which both Mr. Fields and Mr. Martin have extensive experience with; and I am glad to see them here with us today as well. I am really pleased to have her insight on the role of the EPA Ombudsman's Office today. Since 1986, the residents of Overland Park community in Denver have tried to get the Environmental Protection Agency and other responsible parties to remove radioactive wastes from the Shattuck Superfund site. Today, that waste still is in the middle of a residential neighborhood. Radioactive soil in the area was mixed with fly ash, then clay and covered with a pile of rock. A study released in September 1999 by the EPA's 5-year review panel confirmed what residents of Overland Park had been saying for years, we cannot be sure that the entombment of radioactive dirt at the Shattuck Superfund site will protect human health and the environment. Thanks to the diligent efforts of the neighborhood association cleanup, many devoted citizens and the joint efforts of the elected officials, both city, State and Federal, the EPA announced June 16 of this year that the waste will be removed. However, questions continue to arise about what the Agency and the parties involved in the Shattuck site knew about the characteristics of the waste and when they knew it. Most recently, the Department of Energy revealed, for example, that the Shattuck Chemical Company was one of hundreds of companies that it secretly contracted with to do nuclear weapons work in the 1940's and 1950's to process radioactive and toxic materials. During the discussions concerning reopening the Shattuck chemical site record of decision, it was well-known that the Shattuck facility did receive radioactive waste from the Federal Government. However, a full accounting of what waste the Shattuck site accepted and disposed of has been impossible because of missing and inadequate records. The DOE's disclosure is troubling but not perhaps surprising to those of us who have been involved with the site. I will reiterate today what I said to Mr. Fields in a letter last month upon learning of the DOE report, which is that the citizens who have worked so long to see this waste removed have a right to expect that the EPA's promise to move the waste in a timely fashion will be fulfilled. While I think that there needs to be additional investigation into some of these sites, we cannot use it as an excuse to leave this waste onsite. I sound like a broken record. I have no doubt that the government intends to move it, but I think we all need to be ever vigilant to make sure that the poor decision is reversed and that this waste is removed. The EPA Ombudsman's Office played an important role in securing the EPA's commitment to remove the waste by providing the community with the resources and advocacy to compel the Agency to act. The independent oversight provided by an Ombudsman's Office is essential to provide individuals and communities like Overland Park with an additional voice and an additional advocate inside an agency like the EPA, particularly in cases like Shattuck where you are looking at questionable decisions by a Federal agency. The role of the Ombudsman must, therefore, be preserved to ensure that Federal agencies have an internal mechanism that will be vigilant and make sure that agencies act in the best interests of the public. The public needs a resource to help interface with the Federal Government to help obtain information and to investigate potential malfeasance or remedy inefficiencies. It is equally important for the Ombudsman's Office to uphold the highest ethical standards because, after all, this is the office responsible for maintaining the integrity and the mission of the Agency. Mr. Chairman, I want to thank you for having this hearing. I want to congratulate again Clean-It! and the neighbors and also the EPA Ombudsman for coming to the right decision in the Shattuck site, and I yield back anytime I might have left. Mr. Oxley. Further opening statements? The gentleman from Missouri, Mr. Blunt. Mr. Blunt. Thank you, Mr. Chairman. Thank you for holding this hearing and particularly for focusing on the role of the Ombudsman in solving problems and eliminating needless problems for people who are caught in the periphery of legitimate EPA actions. As you know, Mr. Chairman, the office of ombudsman's authority expired in 1988. I think that is why this hearing would be particularly helpful to determine how the exiting system is working, what we need to do to reauthorize in the best possible way a system that meets the needs of people who are again caught on the edges of EPA decisionmaking. We took a bill to the floor recently that was designed to eliminate problems for third-party defendants. That bill was opposed by the Agency. Hopefully, we can even hear some of the reasons that that happened and what we can do effectively to solve the kinds of problems that have been mentioned by my colleagues here today and the individual trauma, cost and devastation that can be created by misguided and misdirected targeting on the part of the EPA and what the Ombudsman's Office can do to see that that doesn't happen and to help third parties extricate themselves from this kind of involvement. I am glad you have held this hearing. I look forward to the testimony and to the questions. Mr. Oxley. Further opening statements? Mr. Green will submit a statement. Other opening statements? [Additional statements submitted for the record follow:] Prepared Statement of Hon. Paul Gillmor, a Representative in Congress from the State of Ohio Mr. Chairman, I want to thank you for calling this hearing on the role of the Environmental Protection Agency (EPA) Ombudsman in addressing local concerns. It is essential that governmental agencies are responsive to the needs of the citizens that support them. The role of the EPA ombudsman was created in 1984 in the Hazardous Waste and Solid Waste Amendments. This position was established to create a place where people could issue complaints and request information on the various programs that EPA operates. Even more so, while the ombudsman was not supposed to be a policy or decision-maker, the position did allow the ombudsman to make suggestions directly to the EPA Administrator. The job of Ombudsman was, statutorily, intended to end in November of 1988. Over the last 12 years, Congress has continually funded this office. As I have had a long-standing interest in the operations of the EPA, I am intensely curious in knowing whether the Ombudsman's response to the public and its role as liaison and citizen advocate is justifying its continued existence. Particularly as the ombudsman's place in the Superfund debate in concerned, I want to know whether the people that have used the EPA ombudsman's office feel they have received an appropriate response. I look forward to their testimony today. Mr. Chairman, I believe today's hearing offers us a chance to answer a couple of important questions about the role of ombudsmen in our governmental system. First, while the position of ombudsman was first created over two hundred years ago, why did the United States wait until ten years ago to consider it an important position for our government? Second, the ombudsman is supposed to be a job which is independent of politics and the Executive Agency it is supposed to serve, does this separation between politics, policy, and performance still exist. Third, as Superfund is probably one of the EPA programs that receives greater community attention than some of the others, how has the EPA ombudsman responded at specific Superfund sites? And last, since the EPA ombudsman has operated without a congressional authorization for many years, should this program be affirmed with a reauthorization or cancelled entirely? I look forward to the testimony and comments of our two panels and thank you, Mr. Chairman, for bring attention to this important issue. ______ PREPARED STATEMENT OF HON. TOM BLILEY, CHAIRMAN, COMMITTEE ON COMMERCE Mr. Chairman, I want to thank you for holding this Subcommittee hearing today about the role of the EPA Ombudsman in helping local citizens get answers from EPA about Superfund sites in their communities. As I have said many times over the past eight years, the Superfund law and the Superfund program administered by EPA remain badly broken. As a result, many Superfund cleanups take too long to complete and cost too much. Even worse, as we have heard from scores of witnesses, one of the biggest problems with Superfund has to do with all the lawyers. For years the program has been inefficient because of the wasted time and resources as a result of waves of litigation, lawyer fees, excessive administrative costs and outrageous overhead. Often the people that stand to suffer the most are citizens who live in communities across the country that are located near Superfund sites. Today, I am pleased that we will hear from some of these residents concerning their experiences with the Superfund program, with EPA, and with the Superfund Ombudsman. The Ombudsman was created by law to ensure that affected the citizens would have a ``lifeline'' within EPA. To be effective, Ombudsman must be there to help at times when citizens have difficulty getting their voices heard within the maze of federal bureaucracy. And the Ombudsman must be able to help bring forward legitimate concerns when the government creates bureaucratic obstacles that hinder adequate public participation and ultimately delay cleanups. I look forward to today's hearing to assess the effectiveness of the Superfund Ombudsman over the years, and identify areas in which improvements are needed. I welcome each of the witnesses, especially the citizens who have traveled a great distance to be here today, and look forward to their testimony. Mr. Oxley. Let me recognize now our distinguished colleague from Idaho who has joined us today for the committee hearing and obviously has a particular interest in the Coeur d'Alene site, Mrs. Chenoweth-Hage. Mrs. Chenoweth-Hage. Mr. Chairman, I want to thank you and Chairman Bilirakis very much for giving me the opportunity to participate with your committee in this hearing today, and I commend you both for your tremendous leadership on this issue. You have been a godsend to those of us who have labored and labored under the EPA up in northern Idaho. I want to especially thank all the members of panel No. 2 for coming so far at their own expense. I look forward to hearing the testimony of Bret Bowers from Coeur d'Alene who will speak on this issue, and he also has a short film that would be most interesting to the committee if he is allowed to show it. If there was ever an example, Mr. Chairman, of the need for an independent Ombudsman process to keep a check on the EPA, that example exists in northern Idaho. Now picture this: A beautiful, picturesque lake whose water measures above drinking water standards is the place where this out-of-control agency is treating this area as if it is a toxic waste dump, and yet we just heard the testimony from my colleague from Denver about the refusal to clean up the Shattuck Superfund site or their drawing out the process. So on one end we have a beautiful lake that measures above drinking water standards that they want to make a toxic waste dump, yet we had the Shattuck situation over here where they drug their heels. Obviously, I can spend several hours today going over with you the numerous abuses, whether it be livestock feeder areas or whatever it might be, but the fines, the misrepresentations that the people of my district have experienced at the hands of the EPA--in fact, I have for years investigated the issue involving the North Idaho Lake Coeur d'Alene Superfund area. The bottom line is that the Agency has created a tremendously drastic solution in search of a problem up there. It is a beautiful area to live, and they can't find the problem, and it is leading to havoc and distress in the communities spread throughout the whole Coeur d'Alene basin. Mr. Chairman, I have worked for years to expose the misdirected policies by the Federal Government in that basin, but I strongly believe that only when the Ombudsman Bob Martin and his chief investigator Hugh Kaufman entered into this process at our request that we achieved a breakthrough on this issue, and your direct intervention--yours and Chairman Bilirakis's--certainly helped to elevate this issue. The sole purpose of the Ombudsman from the very beginning has been to get to the truth of this matter, asserting that by only finding the truth can we make good public policy and not harm the citizens that we are meant to serve. They have not been afraid to ask the tough questions, as you will see in the film, no matter what threats they are receiving from their own agency or even from the U.S. Justice Department. Mr. Chairman, as you will hear about today, in August of this year, Mr. Martin and Mr. Kaufman conducted a 15-hour hearing in Idaho on the Superfund issue, finally bringing to the surface many troubling questions that have plagued this area. So, as a result, we are working together and we are forcing EPA to answer some very important and critical questions. Mr. Chairman, I have more in my opening statement. I would like to submit it for the record. At this time, I will yield back the balance of my time. Thank you. Mr. Oxley. Gentlelady's full statement will be made part of the record, without objection. [The prepared statement of Hon. Helen Chenoweth-Hage follows:] PREPARED STATEMENT OF HON. HELEN CHENOWETH-HAGE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO Mr. Chairman, I want to first thank you and Chairman Mike Bilirakis for giving me the opportunity to participate in today's hearing. I commend you both for your tremendous leadership on this issue. I am confident that because of your efforts the EPA will change the way that it does business. I also want to especially thank Bret Bowers, a constituent of mine from Coeur d' Alene, Idaho, who has come to testify about the ombudsman process in Northern Idaho. I encourage the Committee to pay close attention to his testimony. He is a vocal leader on this issue and knows first hand the harms of EPA policy in the region, and the need for an ombudsman process. Mr. Chairman, if there was ever an example of the need for an independent ombudsman process to keep a check on the EPA, that example exists in northern Idaho--where this out-of-control agency is treating one of the most beautiful river basins in the country as if it were a toxic waste dump. I could spend several hours today going over with you the numerous abuses and misrepresentations that the people of northern Idaho have experienced at the hands of the EPA. In fact, I have for years investigated this issue. The bottom line is that the agency has created a drastic solution in search of a problem--and it is leading to havoc and distress in the communities spread throughout the Coeur d'Alene Basin. Mr. Chairman, I have worked for years to expose the misdirected policies by the federal government in the Basin. But I strongly believe that when the Ombudsman, Bob Martin, and his Chief Investigator, Hugh Kauffman, entered into the process at our request, we achieved a break through on this issue. Their sole purpose has from the very beginning has been to get to the truth of this matter, asserting that by only finding the truth can we make good public policy and not harm the citizens we are meant to serve. They have not been afraid to ask the tough questions, no matter what threats they are receiving from their own agency or even from the U.S. Justice Department. Mr. Chairman, as you will hear about today, in August of this year Mr. Martin and Mr. Kauffman conducted a fifteen hour hearing in Idaho on the Superfund issue, finally bringing to the surface many troubling questions that have plagued this issue for years but have received little attention. As a result of their work, we are finally forcing the EPA to answer these questions. For instance, why did the EPA prepare a plan to take over a private mine without even informing the owner of the mine? Or, why has the agency not even considered the bioavailability of lead in determining the health and environmental hazards of mixture of minerals in the soil? Why has the agency not tested for the natural occurrence of lead in this mineral rich area? Why does it continue to push for an expansion of the process when there are no discernible health and environmental problems? What did the agency do with $80 million worth of Indium? Mr. Chairman, shutting this process down before we have had a chance to answer these and many other critical questions would be nothing short of irresponsible, costly and even tragic. For the sake of the numerous impacted communities throughout this nation, this $7 billion dollar agency requires an independent investigatory wing--with much more resources than a shoestring budge of $300,000 and a couple of public servants expected to cover several investigations at once. I strongly encourage the committee to support an independent ombudsman process, and keep these numerous governmental abuses of the people at bay. Again, I thank you for giving me the opportunity to be here today. Mr. Oxley. Are there other opening statements? If not, we now recognize the aforementioned Mr. Tim Fields, Assistant Administrator for the Office of Solid Waste and Emergency Response with U.S. EPA, and Mr. Robert Martin, the Ombudsman with U.S. EPA, as well. Gentlemen, welcome. Mr. Fields, we will begin with you. STATEMENTS OF TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY; AND ROBERT MARTIN, OMBUDSMAN, U.S. ENVIRONMENTAL PROTECTION AGENCY Mr. Fields. Thank you, Mr. Chairman. It is a pleasure to be here today before both of your subcommittees to talk about this very important topic, namely the functions of the OSWER Ombudsman at EPA. I am pleased to be here with Mr. Robert J. Martin, the National Ombudsman for the EPA Office of Solid Waste and Emergency Response; and I would like to start by just giving a brief summary of how this function has evolved over the years since Congress enacted it in legislation in 1984 as part of the amendments to the Resource Conservation and Recovery Act. That office was established to address public inquiries or complaints regarding the Resource Conservation and Recovery Act of that time. The statutory authority did expire about 5 years later and EPA, though, believed the function was very valuable so we agreed to continue this function as a part of EPA's operation, even though the congressional mandate had expired. In 1991, the Office of Solid Waste and Emergency Response expanded the functions of the Ombudsman to include not just the RCRA hazardous waste and solid waste programs but also Superfund, underground storage tanks and other elements of our national environmental cleanup and waste management program. In 1995, the Administrator of the EPA, Carol Browner, announced an administrative reform to create 10 Regional Ombudsmen in our 10 regions that would be there to respond locally to public inquiries or concerns as well. We fully support the National Ombudsman function in headquarters. That is why, when the statutory mandate for this expired more than 11 years ago, we agreed to continue it and have since that time. To address the evolution of the Ombudsman function, though, which has expanded in authority based on our administrative policy to do so, we have tried to promote coordination between the National Ombudsman and the 10 Regional Ombudsmen that exist in the 10 EPA regional offices.. We are now developing new program guidance to supplement and update the outdated Hazardous Waste Ombudsman Handbook which we have been operating under since 1987. A work group was convened last year, including the National Ombudsman Bob Martin, some of the Regional Ombudsmen, other headquarters and regional officials of EPA, to develop an updated guidance document. The guidance is undergoing internal EPA review at the current time, and we hope to publish this in the Federal Register in the next several weeks, making it available for public comment for 60 days. We then intend to finalize this new updated Ombudsman guidance in terms of how the EPA Ombudsman both in headquarters and our regions would operate. The Agency plans to also publish this draft guidance on our EPA Web site to make it more available to the public as well. Today, the National Ombudsman responds to numerous inquiries and complaints about programs administered by our waste programs and environmental cleanup programs both in headquarters and the regions. For the most part, the National Ombudsman obviously handles cases of national significance or cases where there is an actual or perceived conflict of interest on the part of a Regional Ombudsman. The ombudsman's role is primarily to focus on the Agency's practices and procedures and how citizens or other interested parties have been treated under those practices and procedures. The Ombudsman strives to encourage and promote changes to policy, practices and procedures that will both impact and address the concerns of individuals as well as the community as a whole. I think the Ombudsman has been very successful at doing that over the years. The Ombudsman has a wide latitude in terms of selecting and investigating complaints. The Office of Solid Waste and Emergency Response recognizes the importance of the Ombudsman function, and we want to try to make it as independent to the maximum extent possible under our laws and regulations. EPA steadily over the years increased the funding for the Ombudsman function, and we continue to provide support to not only the National Ombudsman but also additional support to the 10 Regional Ombudsmen as well, to the tune of about a million dollars a year. I believe the Ombudsman program is operating very successfully. I recognize it can operate even better. I assure you that the Agency will continue to support the Ombudsman function, irrespective of whether new legislation is enacted or not. We intend to continue to provide resources to make the function capable of assisting communities across the country as it has in the past. I look forward to responding to questions that the subcommittees may have on this. I think we share a common goal with the two subcommittees convened today and Mr. Martin, which is to make the Ombudsman function as effective and efficient as it can be so that we can meet the needs of citizens across this country. Thank you very much, Mr. Chairman. [The prepared statement of Timothy Fields, Jr. follows:] PREPARED STATEMENT OF TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY INTRODUCTION Good morning, I am Timothy Fields, Jr., Assistant Administrator for the Office of Solid Waste and Emergency Response (OSWER) at the Environmental Protection Agency (EPA). I am accompanied this morning by Mr. Robert J. Martin, the OSWER National Ombudsman. Mr. Martin and I want to thank the Committee for the opportunity to appear before you today to discuss the national EPA Ombudsman program HISTORICAL BACKGROUND OF THE OMBUDSMAN The hazardous and solid waste management laws passed by Congress created some of the most complex programs administered by EPA and the States. Recognizing this, Congress established a National Ombudsman function in 1984 as part of amendments to the Resource Conservation and Recovery Act (RCRA). Establishing an Ombudsman provided the public with someone to contact with questions and concerns about the RCRA program. When the statutory authority for the National Ombudsman program expired in 1989, EPA's OSWER retained the function as a matter of policy. In 1991, OSWER broadened the National Ombudsman's scope of activity to include other programs administered by OSWER, particularly the Superfund program. The National Ombudsman is located in the EPA Headquarters office in Washington, D.C. and reports directly to the Principal Deputy Assistant Administrator for Solid Waste and Emergency Response. The Ombudsman is authorized to provide information and investigate complaints and grievances related to OSWER's administration of the hazardous substance and hazardous and solid waste programs implemented under the following authorities:Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or Superfund; Resource Conservation and Recovery Act (RCRA), including UST; Emergency Planning and Community Right-To-Know Act (EPCRA) or Superfund Amendments and Reauthorization Act, Title III; Oil Pollution Act; and Clean Air Act, Section 112(r). In 1995, a Regional Ombudsman position was created in each EPA Regional office as part of the Agency's Superfund Administrative Reforms effort. On June 4, 1996, Administrator Browner formally announced the appointments of the Regional Ombudsmen. The Regional Ombudsmen program, at a minimum, operates in support of the Superfund program. Depending on the Region, however, the Regional Ombudsman may also provide support to other programs, including RCRA, Underground Storage Tanks (UST), and chemical emergency prevention and preparedness. We fully support the National Ombudsman program under the jurisdiction of the Assistant Administrator for OSWER. We believe that the Ombudsman function is a very important one for the Agency and the public. That is why when the statutory authorization for the Hazardous Waste Ombudsman function expired, EPA chose administratively to maintain the Ombudsman function and broaden the scope of the function. PURPOSE AND STATUS OF DRAFT GUIDANCE Soon after Congress established the Ombudsman program, the Agency issued the Hazardous Waste Ombudsman Handbook to help the newly created National and Regional Ombudsmen administer, and the public understand what to expect from, the Ombudsman program. During the initial years of the Ombudsman program, most of the assistance sought by the public was for help understanding the complicated RCRA program. The Ombudsmen spent most of their time responding to general questions and directing requests to the appropriate sources. The handbook reflected this role. Over the years, the public gained a better understanding of EPA's hazardous waste programs. Requests for answers to basic questions became requests for resolution of complaints. The Ombudsman function has evolved to reflect the changing needs of its clients. The existing guidance no longer reflects the evolution of the Ombudsman function. In the Fall of 1999, the Assistant Administrator of OSWER established an internal EPA workgroup to look at updating the Hazardous Waste Ombudsman Handbook. The workgroup, chaired by Michael Shapiro, Principal Deputy Assistant Administrator for OSWER, includes several Regional Ombudsmen, the National Ombudsman, representatives from the Office of General Counsel, the Office of Inspector General, the Office of Enforcement and Compliance Assurance and several senior Regional Managers. In preparing the updated guidance, the workgroup met with representatives of the U.S. Ombudsman Association and evaluated and considered guidance documents from this organization as well as other organizations with Ombudsman programs and the American Bar Association's draft Standards for the Establishment and Operation of Ombudsman Offices. The workgroup has attempted to draft guidance which reflects key aspects of various external models in a manner that works for a civil service position within the Federal structure. We believe the draft guidance will provide for effective and fair implementation of OSWER's Ombudsman program. The updated guidance will explain to the public the role of the National Hazardous Waste and Superfund Ombudsman and Regional Superfund Ombudsmen today, their scope of activity, and the guidelines under which they coordinate and carry out their responsibilities. The main objective in issuing this guidance is to improve the effectiveness of the program by giving the Ombudsmen, and those who may contact them, a clear and consistent set of operating expectations and policies. The guidance is currently undergoing internal Agency review. The Agency expects this review to be completed in the next several weeks. EPA will then publish a notice in the Federal Register announcing the availability of the draft document and requesting public comment. I am anticipating a public comment period of 60 days. The Agency also plans to make the draft guidance available on EPA's internet website. I will now share with you the Agency experience with the operation and role of the National and Regional Ombudsmen. THE ROLE OF THE OMBUDSMAN The Ombudsman is the Agency official designated to receive inquiries and complaints about the administration of an OSWER program. It is important to note, however, that the role of the Ombudsman is not that of decision-maker nor of a substantive expert for the Agency. The Ombudsman's role is primarily to focus on the Agency's procedures and how citizens and other interested parties have been treated under those procedures. The Ombudsman is not an advocate for a community or any person or institution. Rather, the Ombudsman encourages and promotes changes he/ she believes will serve both the individual and the public interest. The Ombudsman seeks to reform and improve management practices, policies, or administration of such policies that he/she believes are inefficient or unfair and that may have given or may give rise to a complaint. Generally, the National Ombudsman handles cases of national significance and/or cases of actual or perceived conflict of interest on the part of the Regional Ombudsman. The Regional Ombudsmen handle the more routine requests for assistance and conduct more informal inquiries to investigate complaints. Nevertheless, the Ombudsmen may be called upon to serve in a number of capacities: 1) providing information and facilitating informal contact with EPA staff, 2) conducting informal fact finding inquiries and developing options to deal with difficult problems, 3) helping to mediate disputes, and 4) making recommendations to Agency senior management regarding procedural and policy changes that will improve the program. The goal of the Ombudsman is to respond to requests in an appropriate and objective manner as promptly, informally and privately as possible. Providing Information Many members of the public and regulated community either do not know how to get information about the solid and hazardous waste programs in OSWER or feel frustrated in their attempts to cope with the complexities of these programs. The Ombudsman may be asked to help a citizen understand how EPA operates, what the appropriate laws, rules, or policies are, or how a citizen may directly handle a complaint. The Ombudsman may answer general questions about any of the programs administered by OSWER, or may direct the person to the appropriate EPA staff to answer the questions. The Ombudsman may also facilitate the communication between a requester and EPA staff. In doing so, the Ombudsman assists members of the public to gain access to information about the solid and hazardous waste program that will help them participate more fully in established Agency processes. Conducting Inquiries The Ombudsman may look into a requestor's concerns with respect to any program or requirement under the solid and hazardous waste programs implemented by OSWER. The purpose of such an inquiry will be to ascertain the facts of the case and the perspectives of all the involved parties. Since the Ombudsman has no direct decision-making authority, if he/she finds that a policy or procedure has not been properly followed or someone has not been treated fairly, he/she may make recommendations to the appropriate Agency officials. In such cases, the Ombudsman will generally issue a report explaining the findings and supporting the recommendations made. The officials who administer activities being criticized will be given a chance to review the report prior to its release and attach comments to it. Mediating Disputes Many of the issues brought to the attention of the Ombudsman may be resolved through facilitated communication or informal mediation, with the Ombudsman serving in the capacity of a neutral third party. It is almost always in the best interests of those who ask the Ombudsman for assistance and the Agency if a mutually agreeable solution can be found. If the circumstances seem favorable, the Ombudsman will work with the parties and help them move toward agreement. The role of the Ombudsman is not to advocate for a particular outcome, but to try to increase understanding and to assist in the search for appropriate ways to reach closure. Unlike formal mediation, the Ombudsman always retains the discretion to limit the issues which will be considered (in formal mediation the issues to be discussed are left to the parties to decide). Also, unlike formal mediation, the Ombudsman is as concerned about identifying and encouraging needed institutional reforms as in solving a specific problem. Encouraging Institutional Reform The Ombudsman is in a unique position to improve the management and implementation of the OSWER-related programs. On a regular basis, he/ she hears issues, concerns and criticisms of the programs from a wide variety of sources. From this, he/she may identify policies and procedures which are causing problems as well as opportunities for making program operations more efficient or effective. Alerting senior EPA managers to what may be an unwise policy or practice, or unfair administration of a policy is as important as the resolution of the specific problem. By making well documented recommendations to EPA program managers, the Ombudsman can point the way to positive institutional change that should prevent or reduce future similar problems from arising in the future. INDEPENDENCE OF THE OMBUDSMEN No matter what capacity an Ombudsman is serving in at any given time, the Agency has worked to ensure the Ombudsmen's ability to operate independently. As you are probably aware, one of the main principles an Ombudsman operates under is the ability to operate independently in determining what cases to work on, how an inquiry should proceed and what are the findings of a inquiry. From the time the National Ombudsman was established by Congress, this function has been a federal government employee reporting to a senior Agency official. Because the Ombudsman is a federal employee, the National Ombudsman cannot be completely independent in the normal course of relations between supervisors and their employees. But, OSWER recognizes the importance of an Ombudsman being and appearing to be independent from the organization he/she is investigating. For example, OSWER has given the National Ombudsman his independence to the maximum extent possible. The Assistant Administrator (AA) for OSWER does not monitor the Ombudsman's workload. The AA does not select which cases the Ombudsman will take, nor directs the Ombudsman how to investigate a complaint. The AA does not interfere with or attempt to influence the Ombudsman as he formulates his findings and recommendations. The National Ombudsman reports to Deputy Assistant Administrator (DAA) Michael Shapiro. As his supervisor, DAA Shapiro is the approving official on all procurements requested by the National Ombudsman. Generally, for ongoing investigations, funding is approved on an as- needed basis. Where significant resources are requested, DAA Shapiro may become more involved in a case so he is able to determine that the resources requested are available and that the procurement is the effective mechanism to accomplish the Ombudsman's objective. FUNDING FOR THE OMBUDSMAN PROGRAM The EPA has provided adequate resources (funding, person-years, etc.) for the Ombudsman function since it was created. In all cases when the need has arisen, additional funds have been provided to the Ombudsman function. That includes the assignment of staff to support this function and the assistance of the ten Regional Ombudsman as needed. In addition, the Ombudsman, depending on the site and issues under review, has accessed the technical expertise of the EPA's Environmental Response Team to supplement his investigative efforts. Over the years, funding for the National Ombudsman function has steadily increased despite the fact the Superfund program budget has been reduced. In fact, funding has gone from roughly $117 thousand in fiscal year 1993 to over $519 thousand in fiscal year 2000. The Regional Ombudsman function is funded at roughly $1 million a year, under the ten Regional budgets. ACCOMPLISHMENTS OF THE PROGRAM The National and Regional Ombudsmen receive many calls for assistance each year--ranging from routine questions about hazardous waste laws to specific complaints about unfair practices conducted at a site or facility. The Agency has frequently adopted recommendations put forth by the Ombudsman program. Before I close, I would like to share with you an example which demonstrates the success of the Ombudsman program. In 1999, local residents asked the National Ombudsman to look into the EPA Superfund program activity associated with the Shattuck Chemical Site in Denver, Colorado. Community members did not feel the remedy adequately protected public health and the environment. As part of his investigation, the National Ombudsman held three hearings to hear the concerns of community members. He also interviewed government officials, local residents, and EPA staff and reviewed the administrative record of the site. In October 1999, the National Ombudsman issued his draft recommendations. Subsequently, EPA selected an alternative remedy for the Shattuck Chemical Site. Is the program operating successfully? I believe so. Generally, as a result of the Ombudsman's involvement, a better decision is reached, communities are satisfied with the outcome and public health and the environment are protected. The Agency will continue to support the Ombudsman function and make resources available so that it may continue to assist communities across the nation. Mr. Oxley. Thank you, Mr. Fields. Mr. Martin. STATEMENT OF ROBERT MARTIN Mr. Martin. Thank you, Mr. Chairman. I am pleased to be here this morning to appear before you and the honorable members of this committee. In speaking just extemporaneously for a moment, I have been doing this job for 8 years; and in the course of doing that job I have talked to a lot of people, and I have met a lot of people all over the country and meeting with those people and working with them has enriched my life. I want to recognize them as I appear before you today, and I am very glad that you will be hearing from some of them in the course of this hearing. I have a few things which I would like to speak to in the spirit of doing our job better and in doing what the EPA must do, which is to protect human health and the environment, that is its mission, particularly in the Superfund program. As we do that, I think it is critically important that we listen to people more, because I don't feel we have listened enough, and it is a very hard job to do, to listen. I also feel that we need to be more compassionate, because we have so much power in the Superfund program. The Agency has so much power in that program, and we need to feel how we affect people's lives every day in the exercise of that power or by not exercising that power. Third, I feel we need to be more thorough in our job. There have been countless times when I have undertaken cases in different parts of the Nation where I have heard that we have missed this or have missed that, and I think it is very important to catch it all in the front end. I think that people in the end want to know how big of a problem they are facing, if they are facing one. They may not be able to fix it right away, we may not have enough money, may not have enough resources, it may take a long time, but we need to stay in a place of truth with that, with people. And also, obviously, where there may not be a problem we should not be focusing extraordinary resources to examine that. So with that being said, I am very honored to be before you today and would be glad to respond to your questions, not only in this session but individually as well as afterwards and perhaps in meetings. Thank you sir. Mr. Oxley. Thank you, Mr. Martin, and job well done for 8 years. We appreciate your sincerity and your commitment to your job. Mr. Fields, let me first indicate to you what appeared to be good news last week when the announcement came from U.S. EPA that the Keystone landfill site in Pennsylvania had been adjudicated and there was a settlement, and what appeared to be on the surface very good news turned out to be, based on the timing at least, rather interesting, to say the least. Let me quote you from Mr. Campbell, Bradley M. Campbell, I am sure you know the EPA Administrator for Pennsylvania, for eastern Pennsylvania. He says, quote, EPA is pleased to conclude this extensive, expensive, contentious litigation. We are eager to shift more of our attention and resources from the courtroom to cleanup--EPA Administrator Bradley Campbell--but Congress still needs to address the basic deficiency in the Superfund that allowed this huge number of defendants to be sued. And indeed there were over 130 original defendants that ballooned to 580 additional parties. He goes on to say, today's settlement reflects the fundamental Superfund reforms which made it fair to the little guys who never should have been sued by the large polluters in the first place, said Steve Herman, Assistant Administrator for EPA's Office of Enforcement, Compliance and Assurance. Those quotes sound familiar, but most of those came from this side of the dais. By using these reforms, we protected small waste contributors from costly third-party lawsuits and deterred similar litigation in future cases. It was particularly interesting because about that time, as you know, we were working with EPA to craft legislation that would not only take care of the small business folks at the Keystone landfill, including the now famous Barbara Williams and her restaurant, but indeed all of those folks who stood in their shoes or stand to be in their shoes over the next few years unless we solve this incredible morass that has encompassed many of these small business people whose only sin was sending chicken bones to the local landfill. Now, as you know, we had that legislation, H.R. 5175, on the floor last week, and we worked very hard in trying to assuage some of the concerns that EPA had with the bill. But, frankly, I am disturbed that at the moment we thought we could move forward in a bipartisan manner your staff refused to meet with my staff, even though we requested a meeting to work on some of those changes. Matter of fact, the changes we made in the original legislation of the 1999 text were changes that EPA had requested. What I am going to do is give you a copy of the bill that was unable to secure two-thirds votes in the House last week and ask you by the end of the week if you can make some written comments back to this committee as to why EPA chose to oppose this very common-sense legislation, particularly in the face of statements that came out of the EPA about--beating their chest about how successful they were in this settlement in Pennsylvania. I might also point out that, despite all of the apparent good work that was done, the aforementioned Barbara Williams, in actuality this settlement does nothing for her. As a matter of fact, it preserves the right of Waste Management to pursue their suit against her. So let me first ask if you can provide us with some information in that regard, regarding the legislation and how it squares with that settlement in the statements therein, and also whether in fact that that is correct that Barbara Williams is still subject to litigation after over 5 years in this predicament. Mr. Fields. Okay. I will be happy to--the three points you made there, I will be happy to provide written comments back on H.R. 5175 and the administration's concerns about elements of that bill that we would have, you know, we would have concerns about and we ran out of time. [The following was received for the record:] Attached is a letter from Timothy Fields, Jr., Assistant Administrator, Office of Solid Waste and Emergency Response, which provides legislative language that addresses the Superfund liability of small parties. [GRAPHIC] [TIFF OMITTED] T7120.029 [GRAPHIC] [TIFF OMITTED] T7120.030 [GRAPHIC] [TIFF OMITTED] T7120.031 [GRAPHIC] [TIFF OMITTED] T7120.032 [GRAPHIC] [TIFF OMITTED] T7120.033 [GRAPHIC] [TIFF OMITTED] T7120.034 [GRAPHIC] [TIFF OMITTED] T7120.035 [GRAPHIC] [TIFF OMITTED] T7120.036 [GRAPHIC] [TIFF OMITTED] T7120.037 [GRAPHIC] [TIFF OMITTED] T7120.038 [GRAPHIC] [TIFF OMITTED] T7120.039 [GRAPHIC] [TIFF OMITTED] T7120.040 [GRAPHIC] [TIFF OMITTED] T7120.041 [GRAPHIC] [TIFF OMITTED] T7120.042 [GRAPHIC] [TIFF OMITTED] T7120.043 [GRAPHIC] [TIFF OMITTED] T7120.044 [GRAPHIC] [TIFF OMITTED] T7120.045 Mr. Fields. Obviously, as the Administrator has said, Mr. Congressman, as I have said many times, we do support targeted Superfund liability relief for small parties. However, this bill was different than the one that we were working on in terms of a draft last fall, and we ran out of time in terms of being able to resolve all of our issues. We want to continue to work with this committee to provide liability relief for small businesses, and we would like to continue to work with you and others in Congress to do that in the future. However, we do have some concerns, and I think that was communicated in a letter the Administrator sent to Congress, went to Congressman Tauzin and others on September 22. Two other points you made and I want to make clear, and I think this is a comment that Congressman Shimkus alluded to in his opening remarks. I want to make very clear that the statement is not correct about the Keystone settlement and the vulnerability of Barbara Williams' former restaurant. My understanding is that she has now sold that restaurant. But in the consent decree, we explicitly required that the selling parties, Waste Management, the Noels, they would have to waive their claims against all parties, including the nonsettlers like Barbara Williams. We included similar waivers in our prior settlements with the original generator defendants, the selling third and fourth parties and the de micromis parties. The truth is, we have done everything in our power to protect Barbara Williams and those who are similarly situated. No one who settled with EPA can sue any of the nonsettlers. So we want to clarify that, because we have seen some statements by NFIB which were incorrect on that point. Mr. Oxley. If I could interject, that statement came from EPA, not from NFIB; is that correct? Mr. Fields. No. EPA is trying to set the record straight. We saw a statement from NFIB that, despite that settlement signed on Keystone, that Waste Management could still sue Barbara Williams. I want to set the record straight and say EPA's position is and the settlement language says specifically--if you want I can give you the cite; it is in section 24, paragraphs 179 through 185--it makes very explicitly clear that the selling parties cannot sue Mrs. Williams or any other nonsettlers as part of this consent decree that has been signed. That is our position. That is our reading of that consent decree. Mr. Oxley. Now is your reading of our bill that Barbara Williams and all of those folks would be relieved of liability straight up? Mr. Fields. Your bill and that particular element of your bill that you sponsored, Mr. Chairman, H.R. 5175, it would solve the problem of the small business like Barbara Williams who generated---- Mr. Oxley. How come we couldn't get 290 votes for it? Mr. Fields. H.R. 5175 was not the same bill that we were discussing. Mr. Oxley. No, it wasn't. Actually, we accommodated EPA on several issues, including, if I might point out, applying the de micromis exemption prospectively. Now do you agree that H.R. 5175 addresses this concern? Because that was the concern that we were told by EPA--and we specifically addressed that. Mr. Fields. Mr. Chairman, you did address that concern. I do want to point out, though, that the bill we were discussing with NFIB, that was not really a bill but a draft proposal of October, 1999, that was different than H.R. 5175, was introduced this session. It is true that you and your staff worked with us heroically to try to address a lot of our concerns. We do still have some lingering concerns, though. For example, the Administrator is concerned that the burden of proof has shifted to the government. The government must prove that a business that sent over a hundred pounds of waste--that a business that sent over a hundred pounds of waste is not exempt. You know, I will give you comments specifically on the bill this week, but there were elements in this bill that we could still not support. Mr. Oxley. So it is EPA's position that the burden of proof should be on Barbara Williams and not on the Federal Government, is that your position? Mr. Fields. Well, we don't think that the government---- Mr. Oxley. Is that yes or no? Is that yes or no? Mr. Fields. The answer is, we do not believe that the government should have to prove that a business sent over a hundred pounds of waste. Mr. Oxley. That is a unique and very interesting theory in American law. Because you know when I went to law school a long time ago, we studied that people were innocent until proven guilty and that the burden lay on the government to prove that those people were indeed guilty. So, basically, the EPA is turning this legal concept on its head, is it not? Mr. Fields. Well, the problem, Mr. Chairman, is that oftentimes the business records are not--oftentimes not available. This would cause litigation because we would be disputing whether or not---- Mr. Oxley. You wouldn't want litigation. We certainly haven't had a whole lot of litigation. Mr. Fields. We want to avoid that, and we think this particular element of the bill would encourage litigation. Mr. Oxley. Would encourage litigation. You mean, even more litigation than we already have? Mr. Fields. Because of the unavailability of adequate records to document how much material actually went to a material site. Mr. Chairman, we will be happy to give you some comments by the end of the week as you request on your bill, but I wanted you to share with you that, as the Administrator said in her letter, there are elements like that we believe would increase transaction costs and promote litigation. We will be happy to give you a letter for the record that gives you specific elements of how we believe that bill, H.R. 5175, would promote litigation and increase transaction costs. That is what you are requesting. We are willing to do that. Mr. Oxley. This is, as the Four Tops sang, ``the same old song,'' Mr. Fields, 1965, I think, by the way. Mr. Fields. I heard it. Mr. Oxley. But we have been through this, and it just seems to me from where I sit that our efforts to try to make some common sense in this Superfund law which we have been at for it seems my entire adult life, it is always a moving target. If it is not the de micromis settlement prospectively, then it is burden of proof. So I get the sense that we are in a game where the goal posts keep being moved on us, even like Charlie Brown, where we get set to kick the field goal and Lucy, a/k/a Carol, pulls a football out and I end up flat on my keister. You know, I am getting pretty damn tired of that. It is the same old story. We try to get a reasonable bill on the floor of the House that was supported by virtually all Republicans and 46 or so Democrats, that made a lot of sense and would get these small business people out of the litigation nightmare, not create more litigation, create less litigation. This is not brain surgery here. Yet we found a situation where we couldn't get it done because somebody had a political agenda, and I just find that unfortunate. Let me yield to the gentlelady from Colorado. Ms. DeGette. Thank you, Mr. Chairman. Let me just say that that particular bill, H.R. 5175, when it came to the floor was not a bill that the minority had seen or had the opportunity to work on. People like me really felt like it was a good step toward resolving some of these liabilities for the small folks like the restaurant owners who have been mentioned today and others. However, there were some other details in the bill that were really problematic. I think we could have worked those details out had we known about it before it came to the floor, but, as we all know, Superfund is very technical. There is a long established body of law, and the last thing we want to do is upset the equities in existing laws which would encourage litigation. So I would offer--Mr. Chairman, for next year I would offer personally to work with you on this issue. It is an issue, as you know, I have worked on a lot; and I will guarantee you if we come up with an agreement I won't pull the football out and leave you on your keister. Mr. Oxley. Thank you. Ms. DeGette. You are welcome, Charlie. Let me get back to the topic at hand a little bit. I would like to ask Mr. Fields, you heard me talk in my opening statement about these new findings by the Department of Energy about some States that processed radioactive materials; and I am wondering if the recent disclosure by the DOE needs to be investigated by the EPA as regards the Shattuck site so that we can properly characterize and dispose of the waste. Mr. Fields. Yes, Congressman DeGette, we are including Shattuck. We initially, through the USA Today article, had identified 153 sites. We have now discovered in discussions with DOE several hundred others. We are investigating all those sites, one of which was Shattuck; and the Department of Energy is also doing a file review on a parallel track to determine what information they have about this waste disposal area so-- as well. So I assure you there is an ongoing investigation by EPA, DOE and others trying to assess exactly what is the situation regarding radiation waste at Shattuck in light of this disclosure in recent weeks. Ms. DeGette. How will this affect the timetable for removal of waste at Shattuck? Mr. Fields. We don't believe it will affect, in any way, the timetable for removal of waste. We are in the design phase right now. We committed to the community we would have this material moving away within 2 years. That is the same time schedule we are on. We are doing this effort aggressively, on a parallel track, with the design being done. We will have to make sure, however, the waste is properly characterized. Any waste that goes offsite will have to be characterized to determine exactly what is there and whether or not the facility we are going to take it to is properly licensed to take that material. So it is critical we get this investigation that you alluded to done quickly. So that can factor into the schedule for moving this material offsite. Ms. DeGette. But it is your view today the removal schedule should not be affected. Mr. Fields. We do not intend for the removal schedule to be updated. Ms. DeGette. I think that is pretty clear. Mr. Martin, let me ask you if you have any sense why your office's investigation of the Shattuck site did not uncover any of the information that the DOE just released. Mr. Martin. When I undertook my review of the Shattuck site, which began last June, we did meet with officials from the company, this W.S. Shattuck Company, were provided a tour of the site; and since that time I can tell you I have had suspicions that the waste at the site was other than as described on the basis of questions that we have asked and also on the basis of documents that we reviewed in the administrative record in the region. It is a concern that we have had, and we are investigating. Ms. DeGette. Mr. Martin, to follow up a little bit, I know that there were a number of statements by you and by the chief investigator about potential criminal activity at the Shattuck site made in the press and other places. I am wondering if, to your knowledge, there have been any reports made to local law enforcement or Federal law enforcement officials about criminal activity or anything you have uncovered at the site. Mr. Martin. I made no statements about potential criminal activity in the course of the hearings which we undertook for the Shattuck site. However, to the extent we have any reason to believe through our review of the record or otherwise by talking to officials within the region, the State or the company that there may be, you know, criminal activity, we will refer them to the Inspector General of the EPA. Ms. DeGette. But to your knowledge no referrals have made to date. Mr. Martin. I have made no such referral. Ms. DeGette. Thank you. Let me ask you generally, I know the ABA is looking at general Ombudsman standards and the subcommittee issued a report this past July to the American Bar Association House of Delegates recommending a set of standards for the Ombudsman office to follow. On the one hand, the recommendations stated that the Ombudsman should not conduct an investigation that substitutes for administrative or judicial proceedings; and an Ombudsman review should not serve as the foundation for disciplinary activity or civil action or a determination of a violation of law or policy. The report goes on to say, and, by the way, the subcommittee says that the ABA supports the greater use of ombudsmen; and it says that ombudsmen should review allegations of unfairness, maladministration, discourteous behavior, incivility, inappropriate application of law or policy, inefficiency or decision unsupported by fact. I am wondering, Mr. Fields, if you can tell me, does the EPA Ombudsman follow these guidelines? And if not, do they intend to in the draft report that you are working on? And if not, tell me how it operates differently. Mr. Fields. Well, the EPA has looked at the American Bar Association Ombudsman guidelines. We have looked at this report that you have referred to as well. We are looking at all those sources. We are looking at the guidelines of the U.S. Ombudsman Association. We are looking at those elements of those guidelines that are the best components, and we intend to apply those and incorporate those into the EPA guidance we are developing that we will make available to the public shortly. We think there are certain elements of those guidelines that fit the EPA structure, but there are some elements that do not. Complete confidentiality, for example. We cannot provide complete independence, for example. We are working to try to make sure those elements of those various models that have been published by various organizations including ABA are incorporated into our guidance that we are developing and make sure that they are compatible with Federal law and EPA policy and procedure. Ms. DeGette. Mr. Martin, would you have any comment on that? Mr. Martin. Yes, I would. I served and still serve on the Working Committee for the American Bar Association for Ombudsmen, and I was integrally involved in the development of the language which you have spoken of just a moment ago. And I think the direct point is that once an Ombudsman becomes an adjudicatory body it is no longer an Ombudsman. Therefore, an Ombudsman cannot be a judge, cannot make recommendations which are binding upon the entity that it reviews. This function has never done that and I don't believe ever will. Mr. Oxley. Gentlelady's time has expired. The gentleman from Florida, the chairman of the Health Subcommittee. Mr. Bilirakis. Thank you, Mr. Chairman. I will just continue in that vein. In 1990, as I understand it, the Administrative Conference for the United States recommended that all government agencies with frequent contact with the public consider establishing an Ombudsman service. The conference also indicated that, and I quote, Mr. Fields, ``it is important that Ombudsmen be independent of the line offices and that they are seen as independent.'' Well let me just say, this is difficult. It is difficult for those of us who have worked with, and developed relationships with, the Ombudsmen over many months, to get them in a position where they are sitting here to the right hand of their boss, not under oath and asking them to basically say what is in their hearts. And in all honesty--that makes it very difficult for me. Because, let me just put it this way, Mr. Fields, with all due respect--this is not intended to be any kind of a threat or coercion or anything of that nature. I don't really know what Mr. Martin is going to testify to here today. He was asked to testify, and apparently accepted the invitation to testify. Ordinarily, a written statement is submitted to this committee prior to that testimony. We did not receive a written statement. We were told he was not going to be able to testify. Then, of course, this morning he is here to make an oral statement. You know, a reasonable person would certainly read an awful lot into all of that. I would hope that no matter what happens here today or during the process of reauthorizing and maybe putting into law specifics in terms of the functions of the Ombudsman, that there would not be any repercussions on Mr. Martin or any members of his staff. And I know that you will tell me there won't be, but you and I know that sometimes things are said and other things happen, whether the person who made the comment means it or not. You were asked, Mr. Martin, to testify before this committee. You did not provide a written statement. Now you are here today to speak orally. Is there anything you would like to share with this committee in that regard? It is true you were invited to testify. Mr. Martin. That is correct, Mr. Chairman. Mr. Bilirakis. It is true that you planned to testify. Mr. Martin. That is correct, Mr. Chairman. Mr. Bilirakis. And it is true that that changed and then this morning you are to give an oral statement. Mr. Martin. There was confusion, Mr. Chairman, about the submission of testimony to the committee. I had a discussion with our Office of Congressional Affairs in which they indicated that a statement or statements would be prepared for Mr. Fields and myself. That discussion occurred around September 23. I then understand from my staff that there had been a joint statement prepared by the Agency as late---- Mr. Bilirakis. Joint statement for the two of you. Mr. Martin. Yes, sir, yeah. That had been prepared by the Agency. Mr. Martin. Yes, and as of last evening, in fact, the joint statement was still prepared; and then I understand a statement was submitted that was from Mr. Fields alone. Mr. Bilirakis. Did you feel that you should provide your own statement? Mr. Martin. I feel the Office of Ombudsman--I feel, as Ombudsman, that I should be able to provide my own statement to this committee. I understand that because of legal difficulties within the agency, perhaps the administration, any such statement would have to be cleared through the Office of Management and Budget and perhaps other entities as well. I understand those difficulties. But to answer your question, yes, I do feel I should be able to. Mr. Bilirakis. Had you prepared your own statement and went through the process and just didn't make it through the process? Mr. Martin. No, sir. I was led to believe that a joint statement would be prepared and submitted. Mr. Fields. Mr. Chairman, could I enter this one and clarify this, just to add to this question? Mr. Bilirakis. I suppose so. Mr. Fields. Mr. Martin--and I--and we apologize. There was some confusion. Mr. Martin was on leave, and we did talk to staff in the Ombudsman. We assumed that one statement from the administration--obviously, Mr. Martin was not restricted in any way from being able to communicate with this committee. We traditionally prepare one statement that allows several witnesses--whether it is me and Steve Herman or me and Lois Schiffer--when we get letters from committees of Congress we traditionally put together one statement and have both witnesses there to respond to questions. But I assure you there was not any attempt to try to stifle a statement from the Ombudsman. Mr. Bilirakis. Mr. Fields, with all due respect, again, I don't think there is any confusion. The letter of invitation is right here; and it is pretty darn clear, the form of your testimony and that sort of thing. You know, it gets again to the independence aspect. It gets to the problems that led up to this hearing, the problems that we ran into in our different sites in Denver, in Idaho and Florida, et cetera. You know, you made the comment, sir, that the Ombudsman's Office is operating very successfully. Maybe some people would say in the eyes of EPA maybe too successfully. You know, I was part of this committee when we did the Superfund bill, as was Mr. Oxley. Not too many people up here were here at this time. The Superfund bill took up all hours of several days and nights, and it was a very contentious type of a thing. It shouldn't have been, I suppose, but it was because partisanship always plays a part. But I do remember very clearly back when the Ombudsman concept was being brought up and a lot of us ended up supporting the Superfund bill; and many people who, frankly, were being blasted by various special interest groups were thanked after it all was done. But in my mind I am not sure they understood what the role of the Ombudsman would be in Superfund program, and I sure understand it now from what I have seen in Tarpon Springs. Thank God for it and thank God for those people who--I wasn't one of them--came up with the concept. I suppose I supported it. I can't remember back to 1984. But my point is it has probably worked too well from what I have seen. Now, you know, we have seen documentation, Mr. Fields, basically withholding funds from the Ombudsman's office. Maybe they are doing their job too darn well. I don't want this to be a militant type of hearing. Do you agree that the Ombudsman--as you have stated, Mr. Fields, is not an advocate for a community or any person or institution? That is in your testimony. I believe you have said that. Mr. Fields. That is in my testimony. That is my statement. Mr. Bilirakis. It has also been in some of the communications I have read that your office sent out. Mr. Martin, do you agree with that? Mr. Martin. An Ombudsman should not serve as an advocate for any particular person but can serve as an advocate for--to be frank, the truth, after an investigation is under way or has been performed and I may find facts that I believe are undeniable and if I feel those facts are being ignored by the Agency, I then advocate for those facts. Mr. Bilirakis. When you feel that way, what sort of response are you accustomed to receiving from the Agency? Mr. Martin. Well, the process at times can be long and arduous, but I feel that over the course of the past 8 years the Agency has adopted many of my recommendations--I would say 70 to 80 percent. Mr. Bilirakis. Mr. Fields, just one last question. My time has expired. I appreciate the Chair's indulgence. Do you agree that the Office of the Ombudsman should be reauthorized? Mr. Fields. We have no problem with the Office of the Ombudsman being reauthorized. We do have concerns with some of the legislative proposals, though, that would add elements to that reauthorization. Mr. Bilirakis. In other words, you feel that your agency should continue to control their actions. Mr. Fields. No. We think, though, that the ABA model statute is not the appropriate guideline to embody as the overarching body for the Ombudsman activities. We think there are elements of those provisions that cause problems for a Federal Government Ombudsman, but we support the Ombudsman function being reauthorized. We think it is a valuable function. We would continue to operate this function irrespective of whether or not Congress reauthorizes this legislation. Mr. Bilirakis. I would like to get into funding and that sort of thing. My time has expired. There will be further questions that I and others will be submitting to you; hopefully, you will respond to those in due time. Thank you, Mr. Chairman. I am sorry to have taken up so much time. Mr. Oxley. Time of the gentleman has expired. Chair now recognizes gentleman from Wisconsin first, right? No, the gentleman from Ohio, Mr. Sawyer. Mr. Sawyer. Mr. Chairman, I was worried that you had forgotten where I was from for a second there. First of all, let me say thank you to both of you gentlemen for being here. It is good to see you both. Let me direct my first question to a matter of specific history within my district regarding the industrial excess landfill. Back in 1997 the concerned citizens of Lake Township, who had been working on the issues surrounding that site for some time, asked then Senator John Glenn and me to intervene on their behalf with the Agency to allow them to conduct tests of soil and water site. After more than 6 months, in August 1997, we obtained permission for the testing to begin. I thought that was particularly--a particularly good idea because up to that time test results had been problematic. Just about the time that the test permission was obtained, that same citizens group determined that it really did not want to undertake tests. Instead, they requested a review by the Ombudsman. That request was denied, and I pressed for the Ombudsman's participation. Senator Glenn at that point withdrew from that request, feeling that until the tests had actually been conducted he didn't want to pursue another avenue of inquiry. I had hoped at the time that the Ombudsman could become in its very special way an active participant, not just reviewing the history of the site but, more importantly, in examining the site to decide how best to protect the public health and safety and the confidence of the residents in the area. So I pleaded the case with Administrator Browner, and the Ombudsman was given permission for a preliminary review in September 1998. Mr. Martin, you advised me that your findings would be available shortly. You came to my office in October 1998 and repeated the same assertion. In January 1999, you conducted a hearing, all of which I am very grateful for. We met again in the spring of 2000 in May of this year when you suggested that your findings were imminent. Can you tell me what shortly or imminent means? Mr. Martin. Means this week, sir. Mr. Sawyer. Does it mean this week? Mr. Martin. Yes. Mr. Sawyer. I am looking forward to that. It has been frustrating as you, I am sure, can appreciate, particularly as we have seen other avenues of resolution move forward along parallel tracks. Mr. Fields, has it been your experience that this kind of timetable is normal? Mr. Fields. Well, obviously, the Ombudsman has a lot of major cases that are before him. I am sure that Mr. Martin has been--being the good public servant he is--is trying to balance all those priorities he has to deal with. He has a number of cases involving Superfund and RCRA sites across the country, and many members on these two subcommittees are aware of those cases. So I know that the history of the IEL matters go back more than 10 years. I do want to say one of the reasons it took a while to even initiate the Ombudsman review was because this site, as you know, has been subject to four major reviews even before the Ombudsman got involved--the Science Advisory Board, the Office of Inspector General, Clean Sites Incorporated, EPA's radiation labs. So it is probably one of the most studied Superfund sites in the history of EPA. But--I look forward to the Ombudsman's report, but I do know that, you know, Mr. Martin does have to balance a lot of major cases all going on at the same time in trying to make judgments as to which ones he does first, but sometimes the cases do get delayed necessarily just because of the need to balance competing priorities across the country. Mr. Sawyer. Mr. Martin, do you have a comment? Mr. Martin. Yes, sir. I thank you for your patience and your forbearance. I also thank you for your intervention. Because when the request for my help came from citizens in your community, I was denied by Administrator Browner, and you did intervene, and that was a successful intervention. Since that time, yes, I have done a public hearing in the community. I have completed my review of the reviews that Mr. Fields had just spoken of, and I am prepared to sit down with you this week and give you my preliminary recommendations. Mr. Sawyer. I look forward to counselling with both of you when that report becomes available. Thank you very much. Mr. Martin. The issue of resources---- Mr. Sawyer. I do understand that. Mr. Chairman, I have been asked to pose one further question by the staff, if I might. The question revolves around the question of whether the Ombudsman and his employees have arrest powers and the right to take an individual into custody. This centers around an event on June 5 in a town meeting in St. Petersburg, Florida, where the chief investigator is characterized here as giving the Miranda warning to two EPA employees from Region 4. I am not an attorney, but to my knowledge that warning is only given in the case of a criminal investigation. Was this intended to be a Miranda warning? Let me read it to you from the record. The chief investigator speaking said, you have the right to remain silent. You have the right to counsel. Anything you say may be used against you in a court of law. Proceed to the witness. Mr. Fields. Is that for me or Mr. Martin? Mr. Sawyer. It is for both of you. Mr. Fields. Your question is, does the Ombudsman function have subpoena powers or---- Mr. Sawyer. Or arrest powers. Mr. Fields. The Ombudsman function, as currently constituted, does not have those authorities or powers. Mr. Sawyer. What would be the purpose of a Miranda warning then? Mr. Fields. I will have to defer to Mr. Martin on that. I was not at the hearing. I will let Mr. Martin speak to the purpose of the statement on June 5. Mr. Martin. I will be glad to respond, sir. To be clear, no, the Office of Ombudsman--the Ombudsman function has no arrest powers, has no detention powers, does not do criminal investigations. I want to get to the specific point of what was said in the context of the hearing that I did in Tarpon Springs, Florida, earlier this year where the issue of the warning arose. Prior to that meeting, Mr. Kaufman, who serves as my chief investigator, had met with staff from our Office of Inspector General with whom I have had a working relationship for many years in many cases; and I have done criminal referrals to the Office of Inspector General. Mr. Kaufman was advised--and I would also like to note that he has really the firsthand testimony which can be provided on this issue--was advised, and he is present behind me, that it may be necessary for us to give certain warnings to preserve a potential criminal case that the IG would do in the event we made a referral after completion of our investigation. Since that time, the Office of Inspector General, at our request and at the request of Mr. Fields, has provided us with a memorandum of instruction on when warnings can be issued. Mr. Sawyer. Thank you very much. Ms. DeGette. Would you yield? Mr. Sawyer. I would, but if you could share with us that instruction. Mr. Fields. We will be happy to share this for the record. It is a memo dated September 12, 2000, from the Office of Inspector General that we will be happy to provide for the record. Mr. Kaufman has also provided a response to this memo as well, and those could be provided for the record to this--to both subcommittees. [The following was received for the record:] Attached are two memorandum, the first is from Mark Bialek, Counsel to the Inspector General to Michael Shapiro, Principal Deputy Assistant Administrator. The second is from Hugh Kaufman, Senior Engineer to Mark Bialek. These memorandum explain the EPA Inspector General's position in regard to whether the OSWER National Ombudsman has subpoena or arrest power. [GRAPHIC] [TIFF OMITTED] T7120.046 [GRAPHIC] [TIFF OMITTED] T7120.047 [GRAPHIC] [TIFF OMITTED] T7120.048 [GRAPHIC] [TIFF OMITTED] T7120.049 [GRAPHIC] [TIFF OMITTED] T7120.050 Mr. Sawyer. Let me yield to the gentlelady. Ms. DeGette. If the gentleman would yield, I, in fact, am a lawyer and used to do a fair amount of criminal work. Frankly, the administration of the Miranda warning by someone who has no law enforcement or administrative authority is not going to be meaningful at all in a court of law. Because a knowing waiver can't be made by anybody who might give perjurious testimony or testimony that would cause them to self-incriminate. So, therefore, I would suggest, Mr. Fields, when you develop your new standards you include this issue in your new standards. Because unless you have an agent of a Federal, local or State law enforcement agency to administer the Miranda warning, this isn't going to have any effect anyway. Mr. Fields. I agree--Mr. Chairman, I will respond quickly. I agree with that, and it has been clarified now in this memorandum that came from the Office of Inspector General that only qualified Office of Inspector General personnel and criminal enforcement division personnel from the Office of Enforcement have the power and the authority to conduct investigation of potential criminal violations and administrative misconduct and issue such warnings, as you just pointed out; and that will be made explicitly clear in future guidance. Mr. Oxley. Gentleman's time has expired. The Chair now recognizes the gentleman from Illinois, Mr. Shimkus. Mr. Shimkus. Thank you, Mr. Chairman. Mr. Martin, I am glad that you are here. You have a very gentle spirit, and I say that with all due compliments because I think you probably need it in that job. Also, we, as Members of Congress, there are 435 ombudsmen, and this is our job and in many different areas. This is why I have taken on the Quincy issue so fervently. I find it hard to be an effective Ombudsman if you are not even allowed to provide your own written statement. How can you be totally independent? I understand that it would have to get vetted through some folks, but I just find that symptomatic of a problem that really, Mr. Fields, I hope you end up addressing at some time. Mr. Martin, who is giving you advice behind your--who is the gentleman behind you with the beard and glasses and from what office does he come from? Mr. Martin. It is Mr. Kaufman with the Office of Solid Waste and Emergency Response which Mr. Fields is representing and which I am in, and he has served as my chief investigator in a number of cases. Mr. Shimkus. Is he in the Office of the Ombudsman or is he in Mr. Fields' office? Mr. Martin. He is technically in Mr. Fields' office, because my position description is such that I have no authority to supervise any EPA employees. Mr. Shimkus. I thank you. I think that is also a telling issue of some independence or lack thereof. Mr. Fields, how many times have I asked for some language from you in a hearing of this sort to relieve small business, provide them some liability protection? I can remember two times, and I can remember two times you providing the affirmative action assurance that you would provide me or this committee some language. Have I ever received language? Mr. Fields. We have worked on language with committee staff, Mr. Congressman. I don't recall us providing language specifically to you. I do know that we had worked on language, but I don't recall whether we provided it. I would just make one quick--this will be 30 seconds--just to clarify that Mr. Martin, his statement would not have to be cleared by any of the administration to submit a statement. That is not a requirement we have in terms of Mr. Martin being---- Mr. Shimkus. Let us don't go there because, obviously, it didn't happen today. I would like to place in the record statements from the NFIB concerning EPA's lack of leadership on small business relief legislation. [The information follows:] [GRAPHIC] [TIFF OMITTED] T7120.051 [GRAPHIC] [TIFF OMITTED] T7120.052 Mr. Shimkus. I would also like to show you--and I am referring to Mr. Fields--and place in the record some draft text that we were provided in November 1999. [The information referred to follows:] [GRAPHIC] [TIFF OMITTED] T7120.153 [GRAPHIC] [TIFF OMITTED] T7120.053 [GRAPHIC] [TIFF OMITTED] T7120.054 [GRAPHIC] [TIFF OMITTED] T7120.055 [GRAPHIC] [TIFF OMITTED] T7120.056 [GRAPHIC] [TIFF OMITTED] T7120.057 Mr. Shimkus. On top of the first copy of the fax line, it says the Office of Administrator at EPA. The first copy is incomplete. So I have an additional complete copy that has both EPA and NFIB's name on the fax lines, and I want to know very clearly with a yes or no, if possible, was this paper produced at the EPA after discussions with the EPA? Mr. Fields. This is November, 19--I see it says November 3, 1999. Mr. Shimkus. November 3, 1999, EPA, AO and then--the same line--with another line from NFIB Government Relations. Mr. Fields. I provided a letter for the record August 18, 2000 which said that NFIB and EPA had developed some language in November 1999. I don't know if this is the specific same language, but I assume this is close to or similar to language that we were working on at the time with NFIB staff and EPA staff. I would have to read this carefully and verify for you to know if that was exact same language, but I know we were working on language at the time. Mr. Shimkus. Please do because we obviously believe that it is the same language and that really this committee has moved in great strides to try to meet many of the EPA's demands and especially in the bill we had on the floor. The bill addresses a relationship with entities to parents, subsidiaries and affiliates as requested by the EPA. The bill addressed the potential effect of the bill on concluded actions as requested by administration staff. The bill withdraws liability protections if a small business fails to comply with administrator support orders to compel compliance with requests for information as requested by EPA. The bill narrows the definition of households as requested by the EPA. Finally, at the request of the Administrator's staff, the bill makes clear that settlement offers must be in the public interest. I mean, we have moved really very far to meet your desires. I think the chairman's frustration has been experienced by myself, too, is we just want to know what you want. I mean, that is all. I think that is pretty clear. So I want to follow up on the chairman's request that you take 5175 and tell us what you want; and if you can do that by the end of this week we may be able to run another shot at this on the floor. As an Ombudsman for the citizens in my District--and I tell my colleagues and I said this on the floor--their time will come. Their time will come when the local restaurant owner is being the third party of a suit. As I mentioned in the opening statement, they will be in that block of 580 that are the third iteration of a suit in which their net income for the year will be at risk, either through a settlement offer by the EPA or countless litigation to get them out of this fund, and we have all agreed they don't need to be there. So since we are going to have probably another week here in Washington, we do have time to fix this; and so I will take you at your word that you---- Mr. Fields. We will provide comments, yes, Chairman Oxley. Mr. Shimkus. Not just comments. We are not asking for comments anymore. We are done with comments. Mr. Fields. That is what the chairman---- Mr. Shimkus. No, he didn't. He wants legislative language. He wants language that you would approve in a bill to exempt small businesses from this trap. You know, the Administrator's position on this and the failure to fight for small businesses, to say that it would expand litigation, is the biggest red herring I have ever heard, when the whole intent is to leave liability--the whole intent of the---- Mr. Fields. There are elements of the bill---- Mr. Shimkus. [continuing] language. We don't want overviews. We don't want synopses. We want legislative language to fix the bill, and I will take you at your word. With that, Mr. Chairman, I will yield back my time. Mr. Oxley. Gentleman yields back. The Chair now recognize the gentlelady from Wyoming, Ms. Cubin. Mrs. Cubin. Mr. Chairman, I don't have any questions at that time. Mr. Oxley. Then the Chair turns to the gentleman from Oklahoma, Mr. Largent. Mr. Largent. Thank you, Mr. Chairman. I do have some questions. Mr. Martin, when you were asked a question earlier you said that you believe that your office was an advocate for the truth. And the question I had for you when you said that was do you feel if the Ombudsman's Office is controlled or manipulated by the EPA that you can still pursue the truth? Mr. Martin. No. Mr. Largent. Okay. Did you have written testimony prepared for this hearing this morning? Mr. Martin. No. Mr. Largent. You never had a testimony prepared for this hearing. Mr. Martin. That is correct. Mr. Largent. Did you seek permission to provide testimony for this hearing when asked? Mr. Martin. I understood it was being prepared by the Agency. Mr. Largent. Which agency? Mr. Martin. The EPA. Mr. Largent. The invitation went to you, and the Agency began preparing the testimony for you, is that what you are saying? Mr. Martin. That was my understanding, yes. Mr. Largent. Did you not think that that was odd or is that normal operating procedure, that your testimony that you would provide before this hearing would be provided by the Agency or perhaps the gentleman that is sitting behind you? Mr. Martin. I did not receive the invitation letter directly. Mr. Largent. Did your office receive an invitation directly? Because we have a copy of it. Maybe there is a problem with the Postal Service. Maybe we can get them here. Mr. Martin. We did receive the invitation, I believe, yesterday; and it had been opened. Mr. Largent. It had been opened. Mr. Martin. Yes before we received the invitation. Mr. Largent. Who opened the invitation? Mr. Martin. I don't know, sir. Mr. Largent. Do other people routinely open your mail before you receive it? Mr. Fields. Mailroom--EPA's mailroom opens the mail oftentimes when it comes in, letters. Mr. Largent. Well, Mr. Martin, have you had a chance to read the testimony that the Agency provided for this hearing? Mr. Martin. Yes, I reviewed it this morning prior to the hearing. Mr. Largent. And do you agree 100 percent with its contents provided to this committee? Mr. Martin. I think there is some areas where clarification is needed. Mr. Largent. What would those areas be and what would you say to clarify them? Mr. Martin. I believe that in the area of the Regional Ombudsmen program, for example, there have been difficulties with the implementation of that program as it has been established by the Agency. The Regional Ombudsmen do not serve full time in those capacities. Instead, it is more like 5 to 10 percent of their jobs; and their regular job is to report to the people whom they would be reviewing in their particular regions. That is a problem, and I think that it needs to be addressed by the Agency, perhaps by Congress in its discretion. Mr. Largent. So, basically, it would be similar to, say, having Firestone executives heading up NHTSA, overseeing the production of tires and quality control on tires. Essentially that is what is taking place, is that right? Mr. Martin. I think there are inherent conflict of interest problems, yes. Mr. Largent. And it is my understanding that when this law was created back in 1984 that the original authorizing language required that the Ombudsman--you were to report directly to the EPA Administrator. Is that how you operate today? Mr. Martin. No, sir. Mr. Largent. Who do you report directly to? Mr. Martin. I report to Mr. Fields deputy, Mr. Shapiro, and at times Mr. Fields. Mr. Largent. Why is that? Why are we not following the original intent of the law from 1984? How did that get altered? Mr. Martin. I cannot speak for the Agency about the reporting issue, but needless to say it is a decision of the Agency to have the reporting structure at this time. Mr. Largent. That is the hand you were dealt? Mr. Martin. That is correct. Mr. Largent. Do you feel like it would lend to the autonomy of the Ombudsman position if you reported, in fact, directly to the EPA Administrator. Mr. Martin. Yes, I do; and there is a study by the Administrative Conference of the United States which describes that as necessary. Mr. Largent. Thank you, Mr. Martin. Mr. Chairman, I yield back my time. Mr. Oxley. Gentleman yields back. The Chair is now pleased to recognize the gentlelady from Idaho who has joined our deliberations today. Welcome. Mrs. Chenoweth-Hage. Thank you, Mr. Chairman. I wanted to follow the line of the questioning initiated by Mr. Largent. I find it extraordinary that EPA was created under an executive order and yet the Congress thought so strongly about an Office of the Ombudsman that under Public Law 98-616 the office was created by the Congress, and so it is of great concern to those of us Members who are involved in these issues to make sure that the Ombudsman remains independent. I also find it extraordinary, Mr. Martin and Mr. Fields, that under EPA publications it is--the Office of the Ombudsman--is described as a high-level employee who serves as a point of contact for members of the public that have concerns about Superfund activities and that the ability to look independently into problems and facilitate communication that can lead to solutions, end quote, is a responsibility of the Ombudsman. I find that word ``independently'' to be very, very important to us. In addition, Mr. Fields, in 1990 the Administrative Conference of the United States, of which EPA participated in, published a report that states, it is important that Ombudsmen be independent of the line offices and that they are seen as independent. Now, in your testimony you went to great lengths, Mr. Fields, to talk about the handbook and the standards that are going to be published with regards to the conduct and the job responsibilities of the Ombudsman. I find that extraordinary. I find that to have EPA write rules and regulations and put forth standards for an Ombudsman whose office was created by the Congress whose--it has been stated very clearly they should remain independent, that is the antithesis of independence. Mr. Fields. I should clarify that the Hazardous Waste Ombudsman Handbook that was written back in the late 1980's, 1987, was actually drafted by the first Ombudsman who was Mr. Martin's predecessor. Mr. Bob Knox was instrumental in drafting that first Ombudsman's handbook. So it was not something that EPA management dictated in terms of how the Ombudsman functioned or operated. It was actually done by staff. And particularly the National Ombudsman at the time was integrally involved in developing a Hazardous Waste Ombudsman Handbook. It was felt that there needed to be some procedures and guidelines on how the function should operate and how the Ombudsmen should go about doing their business. In the event that a subsequent Ombudsman came along that new Ombudsman would not have to start from scratch as there would be a handbook. As you know, Mr. Martin is now the second National Ombudsman we have had and that handbook was at least I think helpful when Mr. Martin began his job 8 years ago. Mrs. Chenoweth-Hage. And I think that handbook clearly lays out the need for independence and the concern that the Congress had when they implemented and passed and voted on Public Law 98-616. My concern is with the standards that you have testified to that Lois Schiffer, Assistant Attorney General here in Washington, DC, had indicated that the Ombudsman's investigative matters should not be at issue in any issue pending the--that has pending litigation or administrative proceedings. Well, almost everything the EPA does is administrative proceedings. So knowing that Lois Schiffer has a big bark and that she has sent communications with regards to that particular issue, I am concerned that this is the kind of standard that we are going to see published and noticed in the CFR. Mr. Fields. Well, Ms. Schiffer has sent communications, I know, to you, Congresswoman, about that point and also to me. As you know, we--EPA decided that we still could proceed with an Ombudsman investigation in the Coeur d'Alene basin that you and other members of the Idaho delegation requested. We believe you can do an effective Ombudsman investigation and not impede matters involving ongoing litigation. The government must speak with one voice during litigation. As you know, as we have tried to do that. And I think we have tried to work with Mr. Martin's office to make sure that he can continue to conduct an investigation of the issues of concern to the public in Coeur d'Alene and not adversely impede ongoing litigation. That is an issue we are trying to continue to work with. But in spite of the recommendation initially by the Department of Justice that we not proceed with the Ombudsman hearing, we agreed and I supported, as you know, the need for the Ombudsman's investigation and hearing to proceed. Mrs. Chenoweth-Hage. Thank you, Mr. Fields. I see that my time is almost up, but I do note that under the administrative regulatory news it states that the Ombudsman should facilitate communication between citizens and where there is systemic failure or systematic failure to propose more general reforms--I just have to say that from my own personal experience, information that we were not able to acquire, such as plans to seize mines without notice to the owner, lack of chain of custody with regards to how samples were drawn, that is the first thing that impressed me about this Ombudsman, was his first question to me was, has there been a chain of custody that you have been able to turn up? If not, I will investigate that. That is the kind of investigation the people are crying out for and I think the Congress needed when it passed public law. Thank you. Mr. Oxley. Time of the gentleman has expired. The gentlelady from Wyoming. Mrs. Cubin. Thank you, Mr. Chairman. I am referring to the letter that Carol Browner sent regarding the legislation that Mr. Shimkus was discussing with you on H.R. 5175. I would like to just quote one sentence from it: For many years I have encouraged congressional committees in both the House and the Senate to pass reasonable, targeted legislation that addresses the Superfund liability of small parties. Can you be specific with me what the EPA has done, what those exact recommendations have been, other than the substance of the bill H.R. 5175? In other words, what didn't the Congress do that Administrator Browner wanted done? Mr. Fields. Well, the Administrator was referring to in her September 22 letter that over the last 7 years now we have obviously implemented a set of reforms to provide liability relief for small parties---- Mrs. Cubin. Name them. Name some for me, please, specifically, sir. Mr. Fields. The administrative reforms we have implemented have provided de minimus settlements to more than 21,000 parties that are impacted by Superfund liability. We have implemented a program of de micromis settlements where we settled for zero dollars or one dollar for very small, tiny parties at Superfund sites. Mrs. Cubin. And how many small business, third-party defendants have actually been helped by some of the things that you have done? I personally believe you would have a very, very difficult time in identifying people for me that have been helped by those things. Mr. Fields. Many of those 21,000 parties are, in fact, small businesses. We will be happy to get back to you for the record with an estimate of how many of those among that universe are small businesses. Mrs. Cubin. I would appreciate that very much. Mr. Fields, you state that many people don't know how to get information on solid and hazardous waste programs, or that they are frustrated by program complexities. Why have EPA personnel failed to provide easy access to this information? How many employees work in providing information to the public on solid and hazardous waste site s? And how many employees work in the National Ombudsman office? Mr. Fields. I don't know precisely how many people are working in EPA's enforcement program trying to identify amounts of waste, I think that is what you are referring to, that have been shipped to Superfund sites. There are hundreds of them, I know, across the country. The old records are difficult to find. It is a hard task, doing the searches necessary to document those waste amounts. But I would provide for the record to the subcommittees precisely how many of our enforcement personnel are involved in doing those tasks. [The following was received for the record:] The Environmental Protection Agency (EPA) recognizes the need for people living near Superfund sites to be well-informed and involved in decisions concerning sites in their communities. Through years of implementation of the program, EPA has determined that early and meaningful community involvement in the cleanup decisions is important in order to have a successful Superfund site cleanup. On-Scene Coordinators, Remedial Project Managers and Community Involvement Coordinators work with community members to ensure they understand what Superfund activities being conducted at a site and how the community can participate in the process. Each year, EPA staff members conduct hundreds of public meetings and door-to-door visits, and distribute thousands of fact sheets to communities. Many times EPA establishes a satellite office near a Superfund site to ensure community members have easy access to Regional staff. EPA also provides communities with technical assistance so that they are better able to meaningfully participate in cleanup decisions. The cornerstone of EPA's efforts is the Technical Assistance Grant (TAG) program. Under the TAG program, community organizations can apply for an initial grant of up to $50,000 to hire their own independent technical advisors. In FY2000, seven new TAGs were awarded, and approximately $1.25 million was given out for these new awards and for amendments to existing TAGs. A corollary to the TAG program is the Technical Outreach Services for Communities (TOSC) program. Through TOSC, EPA funds the Hazardous Substance Research Centers to provide independent technical assistance for communities. In FY 2000, the TOSC program was funded at $1.300 million. TOSC was active at 118 sites in FY 2000. EPA's Community Advisory Group (CAG) program seeks to bring together early in the process a broad group of stakeholders who are interested in the work going on at the site in their community. Started in June 1993, the CAG program is designed to enhance community involvement in the Superfund process. A CAG is designed to serve as the focal point for the exchange of information among the local community and EPA, the State regulatory agency, and other pertinent Federal agencies involved in cleanup of the Superfund site. Additional components of EPA's Superfund community involvement program include translations of public documents, and access to neutral facilitators. Some of the Superfund sites have non-English speaking populations surrounding them. In these cases, EPA translates public information documents into the languages of the people living near the site and provides interpreters at public meetings. EPA also provides community members with access to neutral conveners, facilitators, and mediators. In addition to the National Ombudsman, two full-time EPA employees, Senior Environmental Employee grantees and a number of student interns are assigned to assist the National Ombudsman. Also, the National Ombudsman has access to sources outside of EPA if additional assistance is needed to help him conduct an investigation. The Ombudsman function, depending on the sites and issues under its review during any one time, draws upon the existing technical resources of the Office of Solid Waste and Emergency Response, and particularly that of the Environmental Response Team, to supplement its investigative efforts. Each Regional Office has designated a Regional Superfund Ombudsmen as well. Mr. Fields. In terms of the people involved in the National Ombudsman's program across the country, I will defer to Mr. Martin for more details on his immediate staff. Mrs. Cubin. If you could just submit that for me. [The following was received for the record:] The Office of Ombudsman was abolished by Acting Assistant Administrator Tim Fields on October 31, 1997, one week after my receipt of a subpoena to appear in my official capacity before a Federal criminal grand Jury on the Times Beach Ombudsman case. There has been no Office of Ombudsman, therefore, since October 31, 1997 (See, Attachment 2). During my entire tenure as Ombudsman, I have been and continue to be the only permanent EPA employee assigned to the National Ombudsman function. [GRAPHIC] [TIFF OMITTED] T7120.058 [GRAPHIC] [TIFF OMITTED] T7120.059 Mr. Fields. I know there are 10 people in the regions who are spending some of their time on this function as well. Mrs. Cubin. I think the question that I cared the most about is why the EPA has failed to provide easy access to this information, as you stated yourself. Mr. Fields. Well, it is not easy information to get access to. Oftentimes, the records are not adequate to document how much waste has been shipped. Mrs. Cubin. When you say it is true that folks are being requested to give the information, they don't know what they are supposed to give. Mr. Fields. Well, maybe we could provide--as you were indicating, maybe we could provide better guidance or clarity providing the precise types of information people ought to be submitting. That is probably something we can work on. Mrs. Cubin. The subcommittee asked you to provide funding figures for the Ombudsman office for the current year and for the previous 5 years. I wonder why you didn't provide this specific information but instead you chose to only provide fiscal year 1993 and 2000 information. Why is that? Mr. Fields. I just did that just to summarize for the record. I have actually provided for this committee--I have with me today precise documentation that goes back for 10 years indicating the dollar figures for the Ombudsman's Office. It was roughly $230,000 in 1998, $360,000 in 1999, $519,000 in 2000. I have numbers going back to 1990. I think it was like $117,000 in 1990. So I will provide for the record this piece of paper that documents from 1991 through 2000 the precise amounts that have been allocated for the Ombudsman function. [The following was received for the record:] Below is the annual budget for the National Ombudsman for the past ten years: FY91....................................................... $116,000.00 FY92....................................................... $113,000.00 FY93....................................................... $117,000.00 FY94....................................................... $136,000.00 FY95....................................................... $142,000.00 FY96....................................................... $158,000.00 FY97....................................................... $157,000.00 FY98....................................................... $262,000.00 FY99....................................................... $345,000.00 FY00....................................................... $519,000.00 Also, the National Ombudsman function, depending on the sites and issues under its review during any one time, draws upon the existing technical resources of the Office of Solid Waste and Emergency Response (OSWER), and particularly that of the Environmental Response Team, to supplement its investigative efforts. There are Regional Superfund Ombudsmen in each Regional Office, as well. These functions are funded at a total of roughly $1 million a year. Mrs. Cubin. Okay. Two things--I am not sure that just those single figures will be adequate. Will you be willing to provide further accounting to the committee if so requested? Mr. Fields. Sure. Mrs. Cubin. Then, last, do you believe that the office is being funded adequately at the levels that you---- Mr. Fields. The Ombudsman function has been funded now at roughly $500,000 to $600,000 this year. I think, you know, and I will--we have got to make sure we provide the resources that Mr. Martin needs to do his functions. Mrs. Cubin. Do you think it is adequate? Mr. Fields. I think the budget of what we provided this year, of 500,000 to $600,000, is an adequate amount. Mrs. Cubin. Mr. Martin, do you think it is adequate? Mr. Martin. I want to clarify a question you had posed earlier about the number of people who work in my office. It is me--and Mr. Kaufman has been assigned at least half time to the office. I also have three interns whose term will be expiring near the end of this year who have been with me since the beginning of the summer. So this is the staffing. Given where the case load is going, it is extremely large, I think more resources will be needed. Mrs. Cubin. Doesn't seem like much of a commitment to me on the part of the EPA to actually try to work with constituents with one person across the United States officially working on their behalf to try to settle discrepancies between the Agency and citizens. But thank you very much. My time has expired. Mr. Bilirakis. Would the gentlelady yield? Mrs. Cubin. Certainly. Mr. Bilirakis. I would agree with you. It certainly doesn't seem to be consistent with the mission statement EPA has regarding cleanup of these Superfund sites. Mr. Fields, just very quickly, discussion took place regarding the Miranda warning and the instructions that were furnished to the Ombudsman's Office on the part of the Inspector General. We have a September 12 letter from Mark Bialek, Counsel to Inspector General. Is that the letter to which you referred? Mr. Fields. That was the letter I was referring to. Mr. Bilirakis. Is there another letter? Mr. Fields. I said there was a response from Mr. Kaufman. I think we agreed we would provide that for the record as well. Mr. Bilirakis. That was a response from Mr. Kaufman to Mr. Bialek. Mr. Fields. Yes. Mr. Bilirakis. Any further communications from Mr. Bialek in response to Mr. Kaufman? Mr. Fields. I am not aware of any further communications. I saw this letter, and then there was another letter from Mr. Kaufman on this matter. I am not aware of any other communications on this. Mr. Bilirakis. Well, the letter from Mr. Kaufman you are providing for the record. Mr. Fields. I don't have a copy of that with me today, but we did agreed to provide it. Mr. Bilirakis. Without objection, will the---- Mr. Oxley. Without objection. Mr. Bilirakis. Without objection, that will be the case. All right, thank you very much. Mr. Oxley. Gentlelady from Idaho. Mrs. Chenoweth-Hage. Mr. Chairman, I just did some quick math. Considering the fact that this Ombudsman has 14 major cases going on around the Nation, he is spending, on an average, about $36,000 per case; and that includes travel, everything. It is--I think $500,000 is not much of a commitment to justice and truth. Thank you very much. Mr. Fields. Mr. Chairman, may I just add to that comment? I want to point out there are 10 other Regional Ombudsmen that we are funding for about a million dollars across the country in addition to the $500,000 that I talked about for 2000. We have also supplemented Mr. Martin's support with support for the environmental response team at Edison, New Jersey, other EPA staff that also provide support. So it is not just that amount. There are other people across the country and in headquarters who are providing support over and above that $519,000 amount. Ms. DeGette. Mr. Chairman, if I could add my two cents. Mr. Oxley. Very briefly, gentlelady from Colorado. Ms. DeGette. I agree with my colleague to the north, Mrs. Cubin. I would chime in, also, that with the increased caseload of the Ombudsman and with the burdens that we are putting on him at not just a regional level but also a national level and with the new rules and requirements that you are in the process of promulgating it would seem to me that the Agency would want the make a commitment at the national level to have assistance for the Ombudsman and professional, paid, full-time staff that could assist in these investigations. I would echo, my view, too, if we are going in the direction of involvement in more cases for the Ombudsman, to be effective and responsible I think he is going to need to have adequate resources. Mr. Oxley. Gentlelady's time has expired. Let the Chair, in closing, do two or three housekeeping-- the Chair would like to enter into the record a copy of the transmission report. This was the transmission of the invitation to appear at the hearing today to Mr. Martin, care of Randy Deitz. Mr. Martin, is that Randy Deits? Mr. Fields. Randy Deitz is the gentleman behind me here. Mr. Oxley. He work for you, Mr. Fields? Mr. Fields. Mr. Deitz works in the Office of Congressional and Government Relations at EPA. Mr. Oxley. Okay. This is a copy of the hearing invitation letter. Just for the record, the document was confirmed and sent on 9/27 at 4:35 p.m. That was Wednesday afternoon, just for the record. [The material follows:] [GRAPHIC] [TIFF OMITTED] T7120.060 [GRAPHIC] [TIFF OMITTED] T7120.061 Mr. Oxley. Mr. Fields, as you know, my colleague Helen Chenoweth-Hage has been closely following EPA Superfund- related activities in northern Idaho. One of her concerns is the EPA's plans for the new Bunker Hill Mine in Kellogg, Idaho. Congresswoman Chenoweth-Hage is not satisfied that she has received all of the EPA documents relevant to this site. I am going to submit several requests for information to you on her behalf. Can I have your assurance that you will respond to the request in a timely manner sought by my colleague from Idaho? Mr. Fields. I will do so, sir. Mr. Oxley. Thank you. Finally, Mr. Fields, in the discussion about the funding for ombudsmen and the like, you had indicated you had all the funding records with you. Mr. Fields. Yes, and our Congressional Affairs Office will make sure your staff are given those documents. Mr. Oxley. Can we have those submitted for the record? Mr. Fields. Sure. Mr. Oxley. Thank you. [The following was received for the record:] Below is the annual budget for the National Ombudsman for the past ten years: FY91.................................................... $116,000.00 FY92.................................................... $113,000.00 FY93.................................................... $117,000.00 FY94.................................................... $136,000.00 FY95.................................................... $142,000.00 FY96.................................................... $158,000.00 FY97.................................................... $157,000.00 FY98.................................................... $262,000.00 FY99.................................................... $345,000.00 FY00.................................................... $519,000.00 Also, the National Ombudsman function, depending on the sites and issues under its review during any one time, draws upon the existing technical resources of the Office of Solid Waste and Emergency Response (OSWER), and particularly that of the Environmental Response Team, to supplement its investigative efforts. There are Regional Superfund Ombudsmen in each Regional Office, as well. These functions are funded at a total of roughly $1 million a year. Mr. Oxley. The gentleman from Illinois. Mr. Shimkus. Thank you. I know we are trying to move forward, but I do want to ask Mr. Martin--and I appreciate--I really do appreciate you being here and the challenges, based upon current law, reading some of the descriptions, I am not sure how--I think it is a very tough job that you have. I would like, if you would then, to follow up with legislation to answer a question on whether the Ombudsman should be reauthorized. And if the answer is yes, what would be your suggestions of how it would change? Now being an Ombudsman and being part of the EPA, I don't know how you effectively do that without allowing the EPA's hand to get involved in the recommendation. I have I think a good sense that you want to, you know, continue a role for the Ombudsman, and I think you probably had some ideas of how we can improve it. And, Mr. Fields, I would respectfully ask that you allow him to submit those recommendations to us unedited so that we can look at the reauthorization and look at ways that we can improve it. Mr. Fields. I have no problem with that at all. [The following was received for the record:] The Hazardous Waste and Superfund Ombudsman Office should be reconstituted and reauthorized consistent with H.R. 3656 for a period of ten (10) years. Moreover, the legislation to reauthorize the Office of Ombudsman should include, at a minimum: * Re-establishment of the Office of Ombudsman; * Allocation of resources under the control of the Office and as defined by the Office, to implement the function; Authorization to perform duties consistent with the IRS Ombudsman function, already established by Congress. Mr. Shimkus. Based upon the terminology or the language, the Ombudsman shall not affect any procedures or grievances, appeals or administrative matters which comes out of the current law, and I didn't get a chance to ask about your involvement with small businesses and individual aspects. It seems like the overall issue and the overall fight--but I think there seems to be--we need to develop some more independence and we need I think to broaden the scope a little bit. Because a lot of us, we are Members, we are ombudsmen; and that is why we get so fired up about this. So I think there is a lot of sympathy for the battles that you have to fight, and I just appreciate you being here. It is usually not an enjoyable experience sometimes, but it is healthy as we move forward on legislation. So if you would provide that--Mr. Fields, if you would allow that to occur, I would appreciate that. With that, Mr. Chairman, I yield back my time. Mr. Oxley. The gentleman may respond very briefly. Mr. Fields. We will definitely adhere to the Congressman's request in terms of Mr. Martin's providing his suggestions to the subcommittees on the views on how the Ombudsman operation should operate. Mr. Oxley. Gentlemen, thank you for your testimony. Appreciate it. We will now turn over the Chair to the co-chairman, Mr. Bilirakis. Mr. Sawyer. Mr. Chairman, just before, let me say thank you for the opportunity to participate in this way and thank you to both of our witnesses for their responses. Mr. Oxley. Next session you may want to join the subcommittee. Mr. Bilirakis [presiding]. I would ask, as I move over to the main chair, that a representative of the administration stay in the room to hear the testimony, particularly in this case, of the citizens' panel. So, Mr. Fields, it would be great if you can stay, but if you can't, we understand. But hopefully, you will have someone here to take notes and all that. Because we are all working for the same people, that is the taxpayers; and we should all be greatly concerned. Mr. Fields. I agree. I, unfortunately, cannot. I have to go to a meeting with our Administrator. But I will assure you we will have staff here to be available. Thank you, Mr. Chairman. Mr. Bilirakis. Next panel, Mr. Bret Bowers, Executive Director of Community Leaders for EPA Accountability Now! from Coeur d'Alene, Idaho; Ms. Mary Mosley, former city commissioner and civic activist from Tarpon Springs, Florida; and Ms. Kimberly Boggiatto from Denver, Colorado. I would hope as we go into your testimony that you will complement or supplement your written statement in your 5 minutes. Your entire written testimony, by the way, is part of the record. We do have legislation to reauthorize the Office of the Ombudsman which would provide specifics in terms of its functions and an increase in funding, and I would hope that we can get the support of all the members of the subcommittee. Having said all that, in view of the way you have lined up there, we will start off with Ms. Boggiatto. Please proceed, ma'am. STATEMENTS OF KIMBERLY BOGGIATTO; MARY MOSLEY; AND BRET BOWERS, EXECUTIVE DIRECTOR, COMMUNITY LEADERS FOR EPA ACCOUNTABILITY NOW! Ms. Boggiatto. Good afternoon, Mr. Chairman and members of the subcommittees. I am extremely honored by your invitation to testify before you today with respect to the role of the EPA National Ombudsman in addressing concerns of local communities. I would also like to thank Congresswoman DeGette and her staff for her hospitality over the past couple of days. I today am representing Clean-It!, which is our local citizens' group that was formed for the sole purpose of advocating for the removal of the radioactive and toxic waste at the Shattuck Superfund site in south Denver. And Congresswoman DeGette's office was nice enough to provide us with the beautiful picture over there of our very own radioactive waste dump. Clean-It! stands for Citizens Loving Our Environment and Neighborhood--Invincible Together, and not only does it make a great acronym but I think it is pretty accurate as far as what we have been able to accomplish. The Shattuck site is contaminated by radioactive and toxic wastes from a decade of radium processing. The contamination found at the Shattuck site is not unique in Denver. There were approximately 10 other Superfund sites with similar contamination. What makes Shattuck unique is that it is the only one of these sites where the EPA decided that the appropriate remedy was onsite disposal. EPA decided for all of the other sites that removal of the radioactive soils should be to a licensed, low-level radioactive waste disposal facility and that that was the only remedy that was--both satisfied existing laws and regulation and was protective of human health and the environment. In fact, EPA originally determined that the wastes at the Shattuck site should also be removed and then went to public comment with that preferred alternative back in the early 1990's. However, after closing the public comment period, EPA decided, apparently, to reverse its decision and subsequently issued a decision that ordered the radioactive materials left on the site. The Ombudsman's investigation was critical in discovering sort of behind-closed-doors meetings that EPA Region 8 held with the owner of the site, and these meetings appeared to have factored into EPA's reversal of their original recommendation. In early 1999, the National Ombudsman Bob Martin and Investigator Hugh Kaufman came to Denver to listen to the citizens' concerns regarding Shattuck. Mr. Martin and Mr. Kaufman were the first EPA officials who actually listened. They treated the citizens with respect and with dignity, and that was in sharp contrast to how the citizens had been treated by Region 8 officials over the previous decade. Also, in the spring of 1999, EPA Assistant Administrator Timothy Fields began to look into EPA Region 8's management of the Shattuck site. Assistant Administrator Fields initiated a mediated stakeholder process that lasted roughly 6 months and included a thorough technical review of the existing remedy. I believe that the Ombudsman's investigation swayed EPA headquarters to focus attention and resources on Shattuck. The Ombudsman's investigation was essential in exposing improperly withheld documents, which I hear is a theme at many of these other sites, as well as concerns about the kinds of waste that might be disposed of at the Shattuck site. And we have heard some talk from Congresswoman DeGette today about the potential defense waste and other such things. In short, the Ombudsman's investigation of EPA Region 8's mismanagement of Shattuck was instrumental in the recent decision that Shattuck wastes must be removed from the site. The citizens knew that if an honest review were conducted the wastes would have to be removed. Bob Martin and his staff were the only EPA officials truly willing to look at the abuse of power by and gross incompetence of EPA Region 8 officials and staff. I believe that this abuse of power and incompetence not only extends up to Regional Administrator Bill Yellowtail but also emanates from him. My experience working with the Ombudsman's Office has bought to my attention some changes that would improve the operation of the office. The improvements essentially fall within two categories: resources and independence. It is clear from my experience that additional staff would be very useful for the Ombudsman's Office. This would allow for more thorough reviews and investigations as well as the ability to accept more cases. The office also needs a larger budget not only to fund the additional staff but also to hire experts and pay for independent laboratory analyses where appropriate. Perhaps even more important is the issue of independence. It is imperative that the Ombudsman has the final decision as to which cases are investigated and how the office's budget is allocated. It is my impression that EPA too often attempts to exert influence over the cases that are accepted for review and the extent to which a case is investigated by constraining the activities that will be funded. Imagine if EPA could determine these subcommittees budgets so as to dictate which oversight hearings could be held or which bills could be considered. Such a situation would clearly hinder your ability to oversee the EPA and result in an enormous disservice to the citizens of this Nation. Just this kind of disservice results when the Ombudsman's budget is manipulated so as to impede his investigations. The Ombudsman and his staff are uniquely prepared to review and investigate EPA's actions because of their extensive knowledge and applicable statutes and regulations as well as their broad technical and scientific knowledge. Because the Ombudsman's Office accepts cases at the request of elected officials, it functions to support and enhance your ability to scrutinize the actions and decisions of the EPA. Mr. Bilirakis. Please summarize, if you could, Ms. Boggiatto. Ms. Boggiatto. Certainly. I would just like to add, there are guidelines out there that have been discussed of those of the EPA as well as some guidelines that appear to be relevant that were published in 1990 in the Federal Register on the role of the Ombudsman within Federal agencies that uphold the independence and integrity of this office. I do not believe that EPA administration is the appropriate place for the guidelines to be developed and that that would serve generally to diminish independence and compromise the integrity of the Ombudsman's Office. Essentially, the argument for a strong EPA Ombudsman comes down to simple human nature: The best incentive for being honest is knowing you would be caught if you weren't. That is how I see the role of the Ombudsman, essentially, is that the further resources you give the Ombudsman's Office the more the EPA will realize that they have to make good decisions and they have to be accountable to the people. Because if they are not, we have an active and aggressive Ombudsman's Office who will expose the injustices, and I think that will serve to really reform the Agency and stop many of the situations we all have experienced. [The prepared statement of Kimberly Boggiatto follows:] PREPARED STATEMENT OF KIMBERLY BOGGIATTO Good morning Mr. Chairmen and members of the subcommittees. I am extremely honored by your invitation to testify before you today with respect to the role of the Environmental Protection Agency (EPA) National Ombudsman in addressing concerns of local communities. My name is Kimberly Boggiatto and I am representing Clean-It! Clean-It! stands for Citizens loving our environment and neighborhood--Invincible together! We are a local citizens' group that formed to advocate for the removal of the radioactive and toxic waste from the Shattuck Superfund site in south Denver. The Shattuck site is contaminated by radioactive and toxic wastes from decades of radium processing. The contamination found at the Shattuck site is not unique in Denver; there were approximately ten other superfund sites with similar contamination. What makes Shattuck unique is that it is the only one of these sites where the EPA decided that the appropriate remedy was onsite disposal. EPA decided for all of the other sites that removal of the radioactive soils to a licensed, low-level radioactive waste disposal facility was the only remedy that both satisfied existing laws and regulations and was protective of human health and the environment. In fact, EPA originally determined that the wastes should be removed from the Shattuck site as well. However, after closing the public comment period in which strong support for removal was expressed, EPA issued a decision that ordered the radioactive soil disposed of on site. The Ombudsman's investigation was critical in discovering the ``behind closed doors'' meetings that EPA Region VII held with the owner of the site which appear to have factored into EPA's final decision to bury radioactive waste only a block from residences, within the densely populated City of Denver. In early 1999, the National Ombudsman, Bob Martin, and Investigator Hugh Kaufman, came to Denver to listen to the citizens' concerns regarding Shattuck. Mr. Martin and Mr. Kaufman were the first EPA officials who actually listened to the concerns of our community. They treated the citizens with respect and dignity, in contrast to the numerous EPA Region VIII officials and staff over the previous decade. Also in the spring of 1999, EPA Assistant Administrator for the Office of Solid Waste and Emergency Response (OSWER), Timothy Fields, began to look into EPA Region VIII's management of the Shattuck site. Assistant Administrator Fields initiated a mediated stakeholder process that lasted roughly six months and included a technical review of the existing remedy. I believe that the Ombudsman's investigation swayed EPA Headquarters to focus attention and resources on Shattuck. The Ombudsman's investigation was essential in exposing improperly withheld documents as well as concerns about the kinds of waste that might be disposed of at the Shattuck site. In short, the Ombudsman's investigation of EPA Region VIII's mismanagement of Shattuck was instrumental in the recent decision that the Shattuck wastes must be removed from the site. The citizens knew that if an honest review were conducted, the wastes would have to be removed. Bob Martin and his staff were the only EPA officials truly willing to look at the abuse of power by and gross incompetence of EPA Region VIII officials and staff. I believe that this abuse of power and incompetence not only extends up to Regional Administrator Bill Yellowtail, but also emanates from him. My experience working with the Ombudsman's Office has brought to my attention some changes that would improve the operation of the Office. The improvements essentially fall into two categories: resources and independence. It was clear from my experience that the Ombudsman's Office would be well served by additional investigators. Additional staff would allow for more thorough reviews and investigations as well as the ability to accept more cases. The Office also needs a larger budget not only to fund the additional staff, but also to hire experts and pay for independent laboratory analyses as appropriate. Perhaps even more important is the issue of independence. It is imperative that the Ombudsman has the final decision as to which cases are investigated and how the Office's budget is allocated. It is my impression that EPA too often attempts to exert influence over the cases that are accepted for review and the extent to which a case is investigated by constraining the activities that will be funded. Imagine if EPA could determine the subcommittees' budgets so as to dictate which oversight hearings could be held or which bills could be considered. Such a situation would clearly hinder your ability to oversee the EPA and result in an enormous disservice to the citizens of this nation. Just this kind of disservice results when the Ombudsman's budget is manipulated so as to impede his investigations. The Ombudsman and his staff are uniquely prepared to review and investigate EPA's actions because of their extensive knowledge of the applicable statutes and regulations as well as their broad technical and scientific knowledge. Because the Ombudsman's Office accepts cases at the request of elected officials, it functions to support and enhance your ability to scrutinize the actions and decisions of the EPA. Fortunately, there are guidelines that describe the proper role and operation of the Ombudsman. The American Bar Association has established guidelines that appear to be well suited to the EPA National Ombudsman. These guidelines would provide for the independence and integrity necessary for a constructive Ombudsman's Office. Also, in 1990 recommendations regarding the role of Ombudsmen within federal agencies were published in the Federal Register. These guidelines also appear to uphold the independence and integrity of the Ombudsman. Given that independent and appropriate guidelines already exist, EPA should not attempt to create its own set of guidelines for the operation of the Ombudsman's Office. Internal guidelines would inevitably diminish independence and compromise the integrity of the Ombudsman when just the opposite result is needed. The argument for a strong EPA Ombudsman comes down to simple human nature: The best incentive for being honest, is knowing you would be caught if you weren't. This tenet conveys the vital role that the Ombudsman's Office plays within EPA. In order to continue in that role, the Ombudsman's Office needs support from Congress both in terms of a secure source of funding and a clear statutory mandate of independence. Thank you again for the opportunity to testify before you today. I am happy to answer any questions that you may have. Mr. Bilirakis. Thank you very much. Very well put. Ms. Mosley, you are on. Please pull the microphone forward. We want to be able to hear. STATEMENT OF MARY MOSLEY Ms. Mosley. I want to thank the distinguished members of the two subcommittees for the opportunity to speak regarding the role of the Ombudsman's Office. I have been involved in the Stauffer Superfund site in Tarpon Springs, Florida, for nearly 25 years. During that time, I learned that Environmental Protection Agency Region 4 is an agency out of control and conducts their duties as though their allegiance is to the polluter rather than to the Superfund communities they are mandated to protect. The needs of our community have not been met; and, fortunately for us, Congressman Mike Bilirakis and Robert Martin have been holding hearings since last December asking questions that the EPA has not wanted to answer. The EPA has withheld information from our community and is very polished at misrepresenting the truth, a fact which I am delighted to see has not escaped this panel. At one hearing, in response to Congressman Bilirakis's polite request to remain more than 10 minutes to answer the community's questions, EPA adamantly refused and flounced out of the meeting. The community was outraged that the EPA would treat an elected official acting on our behalf in such a manner. The EPA chose a monolith as a remedy for our Superfund site which would cover 25 to 35 acres without having first conducted sufficient testing to determine if the site could ever support a mound of such magnitude. The site, which contains wastes such as asbestos, arsenic, radium 226 and more, already has sinkholes, is surrounded by sinkholes and is, coincidentally, located directly above two aquifers, one of which serves as the main drinking water source for a large portion of the State. Should the proposed monolith fail, it would be disastrous to important water supplies. I might add there have been experts that have attended meetings that said that the monolith will not be successful, that the sinkholes have already opened communication between the two aquifers. Robert Martin and his chief investigator Hugh Kaufman exposed the flaws of the monolith at Shattuck in Denver. After the investigation by the Ombudsman's Office, the EPA reversed itself and admitted that the only way to ensure the public health and welfare was for Shattuck's wastes to be hauled to a repository. The elected officials of Tarpon Springs also feel that the removal of waste is the only safe solution for our community, but the wastes at our Superfund site are so toxic that they would have to be treated before a nuclear dump would accept it. In conclusion, the EPA has worked for 6 years with insufficient investigations. They now admit to having data gaps. The EPA has neglected, to date, to adequately define the magnitude and extent of groundwater contamination originating from the site. Despite having a poor record of scientific approach, the EPA continues to decrease the number of contaminants of concern. There are other problems too numerous to mention in the brief time allotted today. To counter the failure of the EPA to responsibly administer the Superfund Act, the Ombudsman's Office must be well funded and independent of any attempts that might be made to silence the voice of truth. The Ombudsman's Office is one of the best examples of good and honest government. Please give them the support needed to continue doing their job well. Thank you. [The prepared statement of Mary Mosley follows:] Prepared Statement of Mary Mosley I would like to thank the distinguished members of the Subcommittee on Health & Environment and the Subcommittee on Finance & Hazardous Materials for the opportunity to speak regarding the role of the Ombudsman's Office. I have been involved with the Stauffer Superfund Site in Tarpon Springs, Florida for nearly twenty five years. During that time, I learned that the Environmental Protection Agency (EPA) Region 04 is an agency out of control and conducts their duties as though their allegiance is to the polluter rather than to the Superfund communities they are mandated to protect. The needs of our community have not been met and fortunately for us, Congressman Mike Bilirakis and Robert Martin, EPA Ombudsman have been holding hearings since last December asking questions that the EPA has not wanted to answer. The EPA has withheld information from our community and is very polished at misrepresenting the truth. At one hearing, in response to Congressman Bilirakis' polite request to remain more than ten minutes to answer the community's questions, EPA adamantly refused and flaunted out of the meeting. The community was outraged that the EPA would treat an elected official acting on our behalf in such a manner. The EPA chose a monolith as a remedy for our Superfund Site which would cover twenty five to thirty five acres without having first conducted sufficient testing to determine if the Superfund Site could even support a mound of such magnitude. The Site which contains wastes such as asbestos, arsenic, radium 226 and more, already has sinkholes, is surrounded by sinkholes, and is coincidentally located directly above two aquifers--one of which serves as a main drinking water source for a large portion of the state. Should the proposed monolith fail, it would be disastrous to important water supplies. Robert Martin and his chief investigator Hugh Kaufman exposed the flaws of the monolith at Shattuck in Denver, Colorado. After the investigation by the Ombudsman's Office, the EPA reversed itself and admitted that the only way to ensure the public health and welfare was for Shattuck's wastes to be hauled to a repository. The elected officials of Tarpon Springs also feel that the removal of wastes is the only safe solution for our community, but the wastes at our Superfund Site is so toxic that it would have to be treated before a nuclear dump would accept it. In conclusion, the EPA has worked for six years with insufficient investigations which they now admit to having ``data gaps.'' The EPA has neglected, to date, to adequately define the magnitude and extent of groundwater contamination originating from the Site. Having a poor record of scientific approach, the EPA continues to decrease the number of Contaminants of Concern for the Site. There are other problems too numerous to mention in the brief time allotted today. To counter the failure of the EPA to responsibly administer the Superfund Act, the Ombudsman's Office must be well funded and independent of any attempts that might be made to silence the voice of truth. The Ombudsman's Office is one of the best examples of good and honest government. Please give them the support needed to continue doing their job well. Thank you. Mr. Bilirakis. Thank you, Mary. Mr. Bowers, you are on, sir. STATEMENT OF BRET BOWERS Mr. Bowers. Thank you, sir. Thank you, Mr. Chairman. Good morning. My name is Bret Bowers. It has been nearly 30 years since I have been to Washington, DC. I used to live here as a young boy. I am proud to be back. I am a husband, and I am a father. I am a proud, third- generation Air Force veteran, and I love my country, and I love living in Coeur d'Alene, Idaho. However, the circumstances that have brought me here are very disturbing. I am here on behalf of C.L.E.A.N.--Community Leaders for EPA Accountability Now--based in Coeur d'Alene, Idaho. I am here to tell our story, to tell you what EPA has done in our community and how they have failed to take action on our concerns. Even more, I want to explain how important it has been to have an Ombudsman to whom we can appeal when no one else in the EPA would listen. C.L.E.A.N. was created in 1998 in response to the EPA's intention of declaring Lake Coeur d'Alene and our entire region a Superfund site. It doesn't sit well, knowing that National Geographic magazine has named our lake one of the five most beautiful lakes in the world, and today the Idaho Department of Environmental Quality calls lake Coeur d'Alene a world-class lake. C.L.E.A.N. organized with support of community and business leaders, the Chamber of Commerce, realtors, citizens and elected officials--including county commissioners, city councilmen, mayors and State legislators. We committed ourselves to understand the EPA's processes, recognizing the history that already exists with Superfund in neighboring Shoshone County, home of the Bunker Hill Superfund site and upstream of Lake Coeur d'Alene. The problem that has brought me to here today took 100 years to create, 14 hours to explain during our Ombudsman hearing, and I have 5 minutes. EPA and the Department of Justice actions threaten not only our economic stability but also our environment and the way others around the region and the world look at our region. The EPA would like the Ombudsman and all of us to believe the Bunker Hill was never limited to the 21 square mile boundary the EPA helped create on the National Priorities List in 1983. After 17 years, $200 million has been spent in the box. The EPA now wants to start completely over and expand the site into a 1,500 square mile region, creating the Nation's largest Superfund site. Just when many of us thought the end was near, the EPA wants to start over by changing the rules. Therefore, any legislation to reauthorize the Ombudsman is good news to us. But, sir, we need more than an internal EPA investigation on this. We welcome the Federal Government's help, not its heavy hand. Until the Ombudsman hearing, our local elected leaders believed the only way they had their voices heard and concerns heard was to pay for the opportunity through friends of the court amicus briefs in litigation at the U.S. District and appellate court levels. We recognize the need for cleanup. So do the mines. They have offered $250 million to settle a lawsuit and begin cleanup. Many of us are working in cooperation with the State to finalize a plan that prioritizes cleanup and develops legislation for Federal funding that you will have the opportunity to vote on next year. But questions have been raised dealing with not just the environment, but human health. How can the EPA discount the scientific, site-specific evidence showing children living in the Bunker Hill site have a much lower accumulation of blood lead than EPA's national default models show? Why won't the EPA consider lead-based paint as a potential source of exposure when the majority of homes in the Silver Valley were built before the 1970's? Today, inside the Bunker Hill site, 94 percent of the children are within the EPA's remedial action goal. On average, communities inside the Bunker Hill site have been under the Centers for Disease Control's standard since 1990. On the environmental side, the discharge from the operating mines today account for less than 1 percent of the metal floating in the river system. But after $200 million have been spent in the box, we now know that EPA's central impoundment area has become the largest source of metals into the south fork of the Coeur d'Alene River. Why should EPA be allowed to mandate a water quality standard State and industry must meet but the EPA cannot achieve itself at the Bunker Hill site? Outside the box, science tells us the largest loader of lead into our watershed is the result of erosion from the river banks. So why did EPA stall and then reduce in size a stabilization project to the point there may not be any tangible results? We are concerned because the threat of basin-wide Superfund could have devastating economic ripples throughout the inland Northwest. Here are the facts for Shoshone County where hard-working families want to turn around the stigma Superfund has placed on them for the last 20 years. What used to be the world's largest lead, silver and zinc mining district with 90 operating mines is now down to just three; 7,500 miners are down to 800. In fact, it is the only county in Idaho with a population decrease, one of only four nationwide. Shoshone County has had the State's highest unemployment rate and highest child poverty rate and has seen its assessed value drop from $1.3 billion to less than $500 million. Those facts have caught the attention of all of us, trying to overcome the onslaught of environmental regulations that have but all shut down our region's natural resource industries. EPA believes they can expand the site even though Lake Coeur d'Alene meets Federal drinking water standards. EPA has studied and found our beaches are safe. We can swim and play in the lake all we want, and the Centers for Disease Control's ATSDR has determined our fish in the lake and in the river and the lateral lakes and the flood plain are safe to eat. So why do Federal plans for cleanup call for dredging our river and the lake with a $3.8 billion price tag that will bankrupt not only businesses and communities but it will ruin water quality for decades to come? Why should the EPA be allowed to characterize our beautiful region in a negative light as they have done repeatedly in national publications? The Ombudsman investigation put a spotlight on EPA's position onsite boundaries. EPA's view gives them an open-ended time line at further expense to our communities, our private property rights and our environment. So it all boils down to trust. How can we trust the EPA when in 1991 Region 10 Administrator Dana Rasmussen wrote to Congressman Larry Larocco with, quote, let me state unequivocally, it is not EPA's intention to expand the boundaries of the site. We recognize that there are many other regulatory tools besides Superfund legislation to affect environmental improvements. Yet, now we're facing major expansion. Mr. Chairman, I will summarize in closing. How can we trust the Department of Justice when they are the driving force behind the lawsuit and tried to prevent the Ombudsman from taking part in our recent hearing? We shouldn't be forced to spend the next 30 years paying off a debt our Federal Government helped create by sending troops to help mine metals during the world wars. I ask you to ensure the National EPA Ombudsman's Office is reauthorized and that you pass new legislation that seeks to secure Federal funding for basin cleanup in our region, prevent further delays in remediation and restore citizens' faith in government. After all, had the Ombudsman's Office not been called in or if C.L.E.A.N. hadn't formed, do you think any of the concerns or questions raised here today by not only me but these other two ladies here would have been brought to anybody's attention? Thank you very much. [The prepared statement of Bret Bowers follows:] PREPARED STATEMENT OF BRET BOWERS, COMMUNITY LEADERS FOR EPA ACCOUNTABILITY NOW, Good morning, my name is Bret Bowers. It's been nearly 30-years since I lived in Washington D.C. I've returned, as a proud, 3rd- generation Air Force veteran, a husband and a father . . . who loves my family and these great United States. However, the circumstances that have brought me here are very disturbing. I am here on behalf of C.L.E.A.N., Community Leaders for EPA Accountability now based in Coeur d'Alene, idaho. I'm here to tell our story . . . to tell you what EPA has done in our community and how they've failed to take action on our concerns. Even more, I want to explain how important is has been to have the Ombudsman to whom we can appeal to . . . when no one else in the EPA will listen. CLEAN was created in 1998 . . . in response to the EPA's intention of declaring Lake Coeur d'Alene and our entire region a Superfund site. It does not sit well . . . knowing that National Geographic magazine has named our lake one of the five most beautiful lakes in the world. Today, the Idaho Department of Environmental Quality calls Lake Coeur d'Alene . . . a world class lake. C.L.E.A.N. organized . . . with support of community and business leaders, the Chamber of Commerce, realtors, citizens and elected officials--including, county commissioners, city councilmen, mayors, and State legislators. We committed ourselves to understand the EPA's process . . . recognizing the history that already exists with superfund in neighboring Shoshone County . . . home of the Bunker Hill Superfund site and upstream of Lake Coeur d'Alene. The problem that has brought us to this point . . . took 100-years to create . . . 14-hours to explain during our recent Ombudsman hearing . . . and a problem I must describe in 5-minutes. EPA and Dept. of Justice actions threaten not only our economic stability, but also our environment . . . and the way others around the country and the world look at our region. The EPA would like the ombudsman and all of us to believe the Bunker Hill site was never limited to the 21-sq. mile boundary they helped establish on the national priorities list in 1983. After 17-years at the site, $200-million dollars have been spent. The EPA now wants to start completely over, and expand the 21.sq-mile ``box'' into a 1500-sq. mile region . . . creating the nation's largest Superfund site. Just when many thought the end was near, the EPA is changing the rules. Therefore, any legislation to reauthorize the Ombudsman is good news to us. But . . . we need more than an internal EPA investigation. We welcome the Federal Government's help . . . not its heavy hand. Until the Ombudsman hearing, our local elected leaders believe the only way they had their concerns heard, was to pay for the opportunity . . . through ``friends of the court'' briefs in litigation at the U.S. District and Appellate Court levels. We recognize the need for clean-up. So do the mines . . . they've offered $250-million to settle the lawsuit and begin clean-up. Many of us are working in cooperation with the State of Idaho to finalize a plan that prioritizes clean-up . . . and develops legislation for Federal funding that you will have the opportunity to vote on next year. But questions have been raised dealing with not just the environment, but human health also. How can the EPA discount the site specific evidence showing children living in the Bunker Hill site have a much lower accumulation of blood-lead than EPA's national default models show? Why won't the EPA consider lead-based paint as a potential source of exposure when the majority of homes in the Silver Valley, were built before the 1970's? Today, inside the Bunker Hill Superfund ``box'' . . . 94% of the children are within the EPA's remedial action goal. On average, communities inside the Superfund site have been under the Centers for Disease Control's standard since 1990. On the environmental side today . . . the discharge from the operating mines accounts for less than one-percent of the metals loading in the river system. But, after $200-million dollars have been spent in the box . . . we now know the EPA's central impoundment area has become the largest source of metals into the south fork of the river. Why should EPA be allowed to mandate a water quality standard State and industry must meet, but the EPA cannot achieve itself . . . at the Bunker Hill site? Outside the box . . . science tells us the largest loader of lead into our watershed . . . is the result of erosion from the river banks. So why did EPA stall and then reduce in size a stabilization project to the point . . . there may not be any tangible results? We are concerned because the threat of basin-wide Superfund could have devastating economic ripples throughout the inland northwest. Here are the facts for Shoshone County . . . where hard working families want to turn around the stigma Superfund has had on them. What used to be the world's largest lead, silver and zinc mining district with 90 operating mines . . . is now down to just three in full-time production. 7500-miners are down to 800. In fact, it's the only county in Idaho with a population decrease, one of only four nationwide. Shoshone County has had the State's highest unemployment rate and highest child-poverty rate. And it has seen its assessed value drop from $1.3-billion to less than $500-million dollars. Those facts have caught the attention of all of us . . . trying to overcome the onslaught of environmental regulations that have all but shut down our region's natural resource industries. EPA believes they can expand the site . . . even though Lake Coeur d'Alene meets Federal drinking water standards. EPA has studied and found our beaches are safe. We can swim and play in the lake all we want . . . and the Centers for Disease Control's A-T-S-D-R has determined our fish in the lake and the river are safe to eat. So why do Federal plans for clean-up call for dredging our river and the lake . . . with a $3.8-billion dollar price-tag that will bankrupt businesses and communities and ruin water quality for decades to come? Why should the EPA be allowed to characterize our beautiful region in a negative light as they have done in national publications? The Ombudsman investigation put a spotlight on EPA's position on site boundaries. EPA's view gives them an open-ended timeline at further expense to our communities, our private property rights and our environment. And so it all boils down to trust. How can we trust the EPA . . . when in 1991, Region-10 Administrator Dana Rasmussen wrote to Congressman Larocco with, ``Let me state unequivocally, it is not EPA's intention to expand the boundaries of the site. We recognize that there are many other regulatory tools besides superfund legislation to affect environmental improvements.'' Yet, now we're facing major expansion? How can we trust the Department of Justice when they are the driving force behind the lawsuit, and tried to prevent the Ombudsman from taking part in our recent hearing? In closing, we shouldn't be forced to spend the next 30-years paying off a debt our Federal Government helped create . . . by sending troops to help mine metals during the world wars. I ask you to ensure the national EPA Ombudsman's Office is reauthorized. and, that you pass new legislation that seeks to secure Federal funding for basin clean-up, prevent further delays in remediation and restore citizen's faith in government. After all, had the Ombudsman not been called in, or if CLEAN hadn't formed . . . do you think any of the concerns and questions raised today would have been brought to your attention? Mr. Bilirakis. Thank you, Mr. Bowers. I am going to recognize myself. I know that Ms. Mosley, for instance, has been a very active environmentalist in our area for a long, long time, very much concerned about the environment, very consumer oriented. I would wager to say that Ms. Boggiatto and Mr. Bowers have been in the same category. So the thing that has really amazed me about all of this is the fact that it is the people who are so very pro-environment who appear to have lost confidence in the credibility of the Environmental Protection Agency. Now, any comments regarding that, Ms. Boggiatto? Ms. Boggiatto. Yes, thank you. Actually, when I first moved---- Mr. Bilirakis. Short comments, I only have 5 minutes. Ms. Boggiatto. Sure. I have lost some confidence. I used to have a lot of faith in the Environmental Protection Agency to always use the best available science and data, and after the involvement with the Shattuck site I realized that that is not always the case, which is unfortunate. Mr. Bilirakis. Yes, it is really unfortunate, isn't it? You start to lose faith in your government, so to speak. Ms. Mosley. Ms. Mosley. Congressman Bilirakis, before Mr. Martin's office was contacted, we tried to contact, many of us in the community, the Region 4 Ombudsman's Office; and, to my knowledge, none of our calls were returned. At least I can speak for myself, none were returned. Thank you, sir. Mr. Bilirakis. And that is significant because there are regional Ombudsmen, so to speak. Mr. Fields referred to them, with the idea of basically trying to convince us that it is really not just one Ombudsman but a number of them spread around the country. And what you are saying is that, for the longest time, they still didn't return your calls. I know your persistence and your perseverance, and I think that also speaks for many of the people in the group down there who have shown their concern in this regard. Ms. Mosley. That is right. Mr. Bilirakis. EPA is in the room, and I hope they are picking all that up. Mr. Bowers. Mr. Bowers. Mr. Bilirakis, what I also would like to say is simply that, to give you an idea, just during the RIFS litigation, litigation for a lawsuit that is going to go to trial in January, and during the RIFS that we have been involved with over the Coeur d'Alene Basin, just in the last 2\1/2\ years EPA has spent roughly a million dollars a month on litigation and studies instead of cleanup. That should really summarize, hopefully, to you and to all the folks here on Capitol Hill that if they are so concerned about the environment then why are they spending more money fighting through litigation rather than helping the communities that know that some cleanup still may need to be done regardless of how it got there or who is responsible? Mr. Bilirakis. I know Ms. Chenoweth-Hage will go into this, but when did the EPA's involvement in Coeur d'Alene start? Mr. Bowers. Well, the EPA started in 1983 with the Bunker Hill Superfund site. It was declared as the box on the NPL, as my testimony indicated, and now they want to start completely over and start from square one. And our communities, especially the communities surrounding the Bunker Hill site in particular, have had it; and they are literally at breaking point in terms of emotional stress over this issue and what lies ahead in terms of the next potentially 30 years. Mr. Bilirakis. Are there EPA personnel located in the area that have been there for some time? Mr. Bowers. Yes, there are. Mr. Bilirakis. I have always been wanting to get that clear in my mind. Go ahead. Why don't you explain that? Mr. Bowers. I am not sure exactly how long the personnel that have been there have been there. I know that, to give you an idea of the questionable judgment on their call by the EPA staff in our region serving at the Bunker Hill site, they have gone to great lengths not only in national publications to disparage our community with some of their negative comments, but they are actually handing out propaganda from extreme environmental groups critical of the natural resource industries. The EPA has been handing out that documentation. Mr. Bilirakis. The EPA has been handing that out? Mr. Bowers. That is correct. Mr. Bilirakis. And you know that for a fact? Mr. Bowers. Handed it right to me on a tour. Mr. Bilirakis. EPA personnel? Mr. Bowers. That is right. Mr. Bilirakis. And are they located there? For instance, in our site down in Tarpon Springs, Florida, we don't have any EPA people that are actually located right in the site area. Do you have EPA people that are located right in the area and working on this effort? Mr. Bowers. I am not sure of how many of the ones that routinely work on our site at Bunker Hill live in the area. I know that one, the gentleman I am referring to is Earl Liverman, he lives in Coeur d'Alene and commutes back and forth, which is about 40 miles upstream. But we can get folks flying over from Seattle Region 10 headquarters on a regular basis at the drop of a dime for the environmental groups to come over and help explain such things as the RIFS or whatever they want to come over and talk about. They will drop a dime and fly right over, but yet they are not necessarily responsive to our needs about the concerns we have for our environment. Mr. Bilirakis. The expenditures have been approximately a million dollars a month and this goes back to the early 1980's? Mr. Bowers. No, no, sir. The million dollar a month figure that I gave you is just during the course of the RFIs which began late 1997. Mr. Bilirakis. I see. Well, my time is up. Gentlelady from Colorado. Ms. DeGette. Thank you, Mr. Chairman. Ms. Boggiatto, you were in the room when you heard Mr. Fields testify that the recent disclosures by the Department of Energy about sites that were involved in processing radioactive and toxic materials should not change the timetable for cleanup. Do you think that that will give some reassurance to the neighbors who are concerned that this will be further delayed? Ms. Boggiatto. The fact that Mr. Fields said it wouldn't be? Ms. DeGette. Right. Ms. Boggiatto. No. Ms. DeGette. Why not? Ms. Boggiatto. I am sure Mr. Fields has the best intentions, as he has been quite good in our community, coming out to talk with us and such. But the fact that EPA doesn't intend for something to delay their actions doesn't necessarily correlate to actual delays, in my experience; and I hope that it does not. But the citizens do want a full characterization of what is actually at that site; and, as I understand it, for the trainloads or the truckloads to move off the site they will have to know what exactly is in it so they will know what kind of facility is licensed. So I hope that can be done as quickly as possible. These sort of fears from the Ombudsman's Office about what kinds of things could be there have been coming up now for at least a year, and I would certainly like to see an aggressive investigation so that it wouldn't---- Ms. DeGette. Why it is important for the neighbors to have a cleanup schedule that has some certainty and also some efficiency, if you will? Ms. Boggiatto. Well, we would like to see the waste dump gone. I mean, after all, no one needs to see that every day in your neighborhood; and it would be very nice to have that over with. There is still a lot of effort on the community's part, working with EPA and businesses around the area, on how all this will happen and how the waste is being characterized, if it is the same as the other sites. There are still some controversies that are sort of ensuing that take a lot of people's emotional energy as well as physical time, and we would all like I think for a nice, clean site and to see a developed site in this area. Ms. DeGette. People have been concerned about what is on the site and whether it is leaking, whether the characterization was correct, for 8 or 9 years now, right? Ms. Boggiatto. Oh, absolutely. In fact, they were told back in the early 1990's that the waste would be removed and that it was dangerous and that was what was necessary. They have been concerned for at lest a decade, and we would like to see this gone, both for the potential health effect as well as the environmental effects that that site would have as well. Ms. DeGette. Thank you. Mr. Bowers, just to clarify, it looks to me, in reviewing your testimony and also your vitae, that C.L.E.A.N. is basically a group that is put together by businesses and the Chamber of Commerce to make sure that their interests are being represented. Would that be a fair assessment? Mr. Bowers. Not only businesses and the Chamber of Commerce, ma'am, but certainly it includes our elected officials at the city and county and State representative level. Ms. DeGette. Okay. But now you are actually on the payroll of the Chamber of Commerce and then C.L.E.A.N. is pretty much an arm of the Chamber of Commerce, would that be correct? Mr. Bowers. That is correct. Ms. DeGette. Thank you, Mr. Chairman. I don't have any further questions and yield back the balance of my time. Mr. Bilirakis. The gentleman from Illinois. Mr. Shimkus. Thank you, Mr. Chairman; and I appreciate those testifying here today. Ms. Mosley, you were here when Mr. Fields was testifying and obviously you followed a lot of the questions and the Ombudsman reports to his deputy. Do you believe people in the local community understand that the Ombudsman is just another EPA employee? Ms. Mosley. Oh, I think they, the average person, thinks that he is an EPA employee, but he certainly is not average. Mr. Shimkus. And following the discussions we had and using the terminology of the law, the Ombudsman was supposed to have access to the highest officials in the EPA. Do you think that is--based upon your observation of the testimony earlier today, do you think that occurs? Ms. Mosley. Absolutely not. Mr. Shimkus. Ms. Boggiatto, do you think that actually occurs, same question, based upon--I know you are a little bit--you are a little bit different because you had, if I am correct, a lot of frustration over many, many years, like many of us do, but you have actually seen some positive aspects and then now might be a change back as we look at--so the same question, do you think that the Ombudsman--the application of the statute and the authorization says he has access to the officials in the EPA. Do you think that is true? Ms. Boggiatto. I think he has access to Mr. Fields, and he is one of the highest officials. Access is one thing. Actually being sort of listened to and respect and supported well is another. Mr. Shimkus. Thank you. Mr. Bower, same kind of question. Mr. Bowers. Sir, could you repeat the question for me? Mr. Shimkus. Well, the basic tenet of the authorization legislation says that the Ombudsman should have access to the highest officials in the EPA. Do you think that that occurs? Mr. Bowers. Well, he might have access to the highest officials within the EPA, but I am afraid that, despite the efforts of that we have already seen in our communities with the Ombudsman and certainly with the tape that I have brought here today--and I hope I get a chance to show that or at least enter it into the record--I can certainly say for a fact that I am not so sure EPA Region 10, let alone headquarters right here in our Nation's capital, really does care about any of the findings that the Ombudsman's Office has. Mr. Shimkus. And let me just follow up, again, you observed the discourse we had on small business liability relief and the trouble we have getting language from the EPA. Ms. Boggiatto, it reminded me of a comment you made that here we had promises in the 1990's that the waste would be removed; and then based upon those promises--those promises not being fulfilled or at least uncertainty is pervasive. Those are kind of reaffirmation of the kind of frustrations we have with EPA and frustration and inability to get some clear guidance and affirmation of what is going to occur in the future and how we can move. Tell me how that affects--and I think my colleague Diana DeGette mentioned this--how does this affect the community when there is uncertainty and, really, your association and organization---- Ms. Boggiatto. Well, as we all know, when you live next to a toxic or radioactive waste dump, you live--and I don't live right next to this site, but many of the citizens I work with do live within sight of it--that is emotionally stressful, to say the least, because you are in fear for your health and your children's health and the rest of your family's health; and I think that toll is a huge burden. It also--the fact that in 1992 or so the citizens were told by EPA that the preferred alternative was removal and that they then changed, reversed course without going back to public comment on that and then said, ``Tough luck, watch us bury it'' there is--it is hard to--it is sort of hard to regain the faith in the administrative agency after that. In fact, when I first moved to Denver, I did not get involved in this site because I was convinced the citizens had it wrong, that EPA could not have done what they were alleging, and waited a couple of years until 1998 to finally get involved, when I realized, you know, that I think there is something here. Mr. Shimkus. Exactly the same experience I felt with the issue. The EPA comes in and says, ``Tough luck, you settle or you get sued.'' That is just a bad way of doing business. I would end with this, Mr. Chairman, and ask for our panelists here also to--if they could, in their reviewing of the process, what recommendations would you provide for us if we look at reauthorizing the Ombudsman--what more tools does he need? I mean, you are on the front lines. You are trying to deal with issues. How do we empower him to get the word to the highest officials in the Agency and not only get heard but have a receptive ear? Mr. Bilirakis. Might I recommend a very, significant question? Might I recommend that they ought to give some thought to it based on their experiences, and hopefully they can furnish that to us in writing, John. Mr. Shimkus. That is what I would request, Mr. Chairman. Mr. Bilirakis. That is, I think, a very good idea. Would you be willing to do that? There will be additional questions that will be furnished to you. I don't know how we are on reauthorization because of what is happening up here, with only a few days to go and that sort of thing, but it may be on a fast track. Hopefully, it is. So the sooner you provide us your suggestions, and recommendations in response to Mr. Shimkus' question on the Ombudsman areas you feel ought to be changed or improved, the better. I didn't mean to cut you off. [The following was received for the record:] [GRAPHIC] [TIFF OMITTED] T7120.062 [GRAPHIC] [TIFF OMITTED] T7120.063 Mr. Shimkus. I have finished with my questions. I appreciate you taking the time to visit with us. I yield back my time. Mr. Bilirakis. The gentlelady from Idaho, Mrs. Chenoweth- Hage. Mrs. Chenoweth-Hage. Thank you, Mr. Chairman. Mr. Chairman, before I begin my questioning, I have a matter here. It is entitled, The Investigative Report Concerning Abuse of Federal Law and the Citizens of North Idaho by the EPA. It is an investigative congressional investigative report that I put together. It is in its draft final stage; and I would, without objection, like to enter the final report into the record. It points out 18 different areas that this Ombudsman, who has an average of $35,000 a case, he is looking into 18 different issues. He looks into everything I want to him to, just in this one site. It is so massive. Mr. Chairman, I remember a long time ago a judge said to me during a hearing, you never want to open a door in a line of questioning that you are not prepared to walk through as well as everybody else, let everybody else in. Well, that happened up in the hearing. That was a 14-hour hearing conducted by our Ombudsman, and that has been captured on film. I have referred to it, as has Mr. Bowers; and I wonder if, without objection, if we might be able to show that 3\1/2\ minute film of the questioning by the Ombudsman of an EPA attorney. So I would yield back the balance of my time if, without objection, we can do that, Mr. Chairman. Mr. Bilirakis. How long will that take? Mr. Bowers. Three and a half minutes. Mr. Bilirakis. Three and a half minutes. Let us do it, if there is no objection. Ms. DeGette. Mr. Chairman, if I can just--reserving my right to object. I am not going to object. Let me just say that we didn't learn about the videotape until this morning. It wasn't submitted as part of the prepared testimony of Mr. Bowers. But, having said that, I am always a proponent of sunshine. Let me just add that the issue of the boundaries of the Bunker Hill site is moot, because the Court of Appeals overturned the challenge and no one challenged it in the District of Columbia. So the issues in the Asarco case, which is scheduled to start on January 22 of next year, are the liability and natural resources damage issues, and that is going to be happening in the District Court of Idaho. So I would ask that a summary of the scope of the facility and the actual transcript sections where this issue was discussed at the Ombudsman hearing on August 19 of this year be inserted into the record to supplement the videotape so that we can have the full discussion rather than an edited portion. I think it is irregular to have edited portions of field hearings shown in hearings, but I won't object to it so long as the record---- Mr. Bilirakis. Without objection, that will be the case. Thank you very much for your consideration. [The information referred to follows:] [GRAPHIC] [TIFF OMITTED] T7120.064 [GRAPHIC] [TIFF OMITTED] T7120.065 [GRAPHIC] [TIFF OMITTED] T7120.066 [GRAPHIC] [TIFF OMITTED] T7120.067 [GRAPHIC] [TIFF OMITTED] T7120.068 [GRAPHIC] [TIFF OMITTED] T7120.069 [GRAPHIC] [TIFF OMITTED] T7120.070 [GRAPHIC] [TIFF OMITTED] T7120.071 [GRAPHIC] [TIFF OMITTED] T7120.072 [GRAPHIC] [TIFF OMITTED] T7120.073 [GRAPHIC] [TIFF OMITTED] T7120.074 [GRAPHIC] [TIFF OMITTED] T7120.075 [GRAPHIC] [TIFF OMITTED] T7120.076 [GRAPHIC] [TIFF OMITTED] T7120.077 [GRAPHIC] [TIFF OMITTED] T7120.078 [GRAPHIC] [TIFF OMITTED] T7120.079 [Video played.] Mr. Bowers. That is the end of the video. Mrs. Chenoweth-Hage. Mr. Chairman, I see my time is up. Mr. Bilirakis. I thank the gentlelady. Well, I think our time is up, and we will excuse the panel. I will just say Ms. DeGette is the only one of the members of the subcommittee left, but if she could have experienced-- and she probably has, maybe even more so at Shattuck--what we have been going through down there regarding the premature decision-making without full and adequate research, I think we would all be pretty shocked and aghast at the overall picture. Ms. DeGette. If the gentleman would yield, that was the part of the problem that we saw in Shattuck, was apparently in the late 1980's, early 1990's, under the Reagan/Bush, or at least the Bush administration, EPA, the initial record of decision was apparently made in back rooms between the Region 8 EPA administrator, Shattuck and heavens knows who else. So, you know, one of the great things that we have really cherished in Denver is the community activists who just wouldn't take no for an answer ever and also the active involvement of the Ombudsman who really helped all of us who were working on it. So thank you for your leadership on this, and good luck to all your folks in Florida. Mr. Bilirakis. And good luck to all your folks in Denver, and hopefully we can work together when it comes to reauthorization. Mrs. Chenoweth-Hage. Mr. Chairman, before you bring the gavel down, I would just have one point that I would like to clarify that was brought up. That is the Asarco suit. That case was almost remanded--almost all of it was remanded back. So there are many, many other issues involved in the Superfund site in northern Idaho, and it will be in ongoing litigation. Thank you, Mr. Chairman. Mr. Bilirakis. Thank you. Mr. Bowers and ladies, Ms. Boggiatto and Ms. Mosley, thank you so very much for taking time away from your families--Ms. Mosley brought her family with her--and your jobs to come here. Some of you have traveled quite a distance, and we appreciate it very much. Again, get that information to us and anything else that you feel you haven't already communicated here today which you feel might be significant in what we are going to do. This hearing is adjourned. 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