    [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.
        [The information referred to follows:]

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        Mr. Bilirakis. Mr. Chairman, I have also experienced the
    work of the Ombudsman firsthand at the Stauffer Superfund site
    in my hometown of Tarpon Springs, Florida. At this site it
    became increasingly clear over several years that many of my
    constituents were shut out of the cleanup process. They felt
    that their concerns were not heard by EPA officials in charge
    of the site. Therefore, at my request, the EPA Ombudsman is
    conducting an independent review of the Stauffer cleanup plant.
    To date, public meetings with the Ombudsman have successfully
    highlighted the need for additional scientific studies and
    increased local residents' confidence in the Superfund process.
        My concern is to ensure that the Ombudsman's Office is
    allowed to continue to provide assistance to local communities
    in holding EPA accountable. While EPA officials have publicly
    and privately assured me of their full support for the
    Ombudsman's efforts, their actions suggest a different
    attitude. Over the past several months, EPA and Justice
    Department officials have nearly derailed the Ombudsman's
    investigation of the Stauffer site and other cases.
        Shortly before a scheduled public meeting in June of this
    year, EPA national officials indicated to the Ombudsman that
    insufficient funds were available for him to continue his
    investigation at the Stauffer site. Only after Chairman Oxley,
    Chairman Tauzin and I intervened did the Agency make a
    commitment to provide the necessary resources.
        At the June meeting in Tarpon Springs, Florida, EPA Region
    4 representatives made a brief presentation regarding the
    Stauffer site. After only 10 minutes they abruptly walked out
    in the middle of a question. Naturally, my constituents and I
    were outraged by this display of contempt, dare I say
    arrogance, on the part of EPA representatives.
        While I am certainly concerned about the Stauffer site and
    the well-being of my constituents, my experiences, Mr.
    Chairman, also led me the to question whether Stauffer is an
    isolated case or is symptomatic of local concerns across the
    country; and that is the key point of this hearing. Are
    Stauffer and the other sites where the Ombudsman has been
    involved isolated cases or do they represent just the tip of
    the iceberg? Are we dealing with a true exceptional case or is
    this business as usual at the EPA?
        At this point, Mr. Chairman, I would like to extend a very
    warm welcome to one of my constituents, Mary Mosley, a Tarpon
    Springs resident and former city commissioner. Ms. Mosley will
    testify in more detail about the EPA and the Ombudsman's
    involvement in the Stauffer case. We look forward to hearing
    her statement as well as the statements of the other citizen
    witnesses, Mr. Bret Bowers from Coeur d'Alene, Idaho, and Ms.
    Kimberly Boggiatto from Denver, Colorado. I want to thank you
    all for your time and effort in traveling to testify here
    today.
        I also want to welcome, Mr. Chairman, Mr. Timothy Fields,
    Assistant Administrator of EPA's Office of Solid Waste and
    Emergency Response, and also the Ombudsman, Mr. Robert Martin.
    Mr. Fields is no stranger to this committee, and I know we all
    look forward to hearing the administration's views on the role
    of the Office of the Ombudsman and its relationship with EPA.
        Thank you, Mr. Chairman.
        Mr. Oxley. I thank the gentleman and now recognize the
    ranking member for the Health and Environment Subcommittee,
    gentleman from Ohio, Mr. Brown.
        Mr. Brown. Thank you, Mr. Chairman.
        Today we are holding an oversight hearing on the Office of
    the Ombudsman at the EPA. This office was created 16 years ago
    with the passage of the Hazardous and Solid Waste Amendments of
    1984.
        The function of the EPA Ombudsman is to receive individual
    complaints, grievances and requests for information submitted
    by any person with respect to the hazardous waste program, to
    render assistance and to make appropriate recommendations to
    the EPA administrator. I support the function of the Ombudsman.
    People need a place to go if an agency bureaucracy is not
    responding to inquiries from the public and is not functioning
    in an open manner. The Ombudsman provides an opportunity for
    citizens to express their views and a channel for those views
    to be taken into consideration.
        The Ombudsman is currently involved in 14 cases around the
    country, including two in my own State of Ohio. To
    appropriately and effectively fulfill the function of the
    office, the Ombudsman must also perform his duties impartially
    and responsibly, gathering facts and information in an
    objective manner and treat all parties, including employees of
    the executive branch, fairly.
        I welcome our witnesses today and look forward to their
    testimony.
        Mr. Oxley. I thank the gentleman.
        The Chair would now recognize himself for an opening
    statement; and I am also pleased to be holding the joint
    subcommittee hearing today with my colleague, Mr. Bilirakis,
    chairman of the Health and Environment Subcommittee, on the
    role of the EPA Ombudsman in addressing concerns of local
    communities. This is a hearing that goes to the heart of the
    public's faith in government. People who live near Superfund
    sites have turned to the government for explanations on health.
    Responsiveness of EPA to these citizens has been a concern of
    my mine for a long time.
        With the goal of promoting faster and safer cleanups, I,
    along with many colleagues, have introduced Superfund reform
    bills that would increase local participation in the remedy
    selection process and that would make community involvement a
    more integral part of EPA's cleanup criteria.
        The Ombudsman's Office within EPA plays an important role.
    It serves as a citizen watchdog and as a backstop to ensure
    that the best decisions are being made for their community.
    Trust in the process is heightened when people know they have
    an independent voice to closely examine an agency decision.
    Mistrust often leads to controversy and cleanup delays.
        Therefore, I was very disturbed when my friend Mr.
    Bilirakis told me that EPA appears to be impeding the helpful
    work that the Ombudsman's Office has been doing in his
    District. We had a telephone conversation with Administrator
    Browner on that subject. Yet that conversation did not prevent
    the inexcusable conduct of regional EPA personnel who
    subsequently walked out of a public meeting in my colleague's
    district. Since then I have learned of a Department of Justice
    letter that threatens to disrupt the Ombudsman's investigative
    work at the Coeur d'Alene site in Idaho.
        These situations speak directly to the independence of the
    Ombudsman and to the credibility of the Agency. No one, not
    elected officials, not appointed agency bureaucrats, should be
    afraid to have their decisions subjected to public scrutiny.
        I look forward to hearing firsthand from the citizens who
    have been dealing with EPA and the Ombudsman regarding
    Superfund sites in their community. I will be looking for EPA
    assurances that the Ombudsman's Office has the resources and
    the independence to play a constructive role in communities
    with Superfund sites.
        I welcome our witnesses today--Mr. Fields, welcome back to
    the subcommittee; we are looking forward to your testimony--and
    now recognize the gentleman from Ohio, Mr. Sawyer.
        Mr. Sawyer. Thank you, Mr. Chairman. Although I am not a
    member of either subcommittee, I do serve with you on the full
    committee; and I appreciate your forbearance in allowing me to
    take part in these hearings today. I have a statement I will
    submit for the record. I look forward to hearing from our
    witnesses.
        Mr. Oxley. We thank you for your participation.
        Are there other opening statements?
        The gentleman from Illinois, Mr. Shimkus.
        Mr. Shimkus. Thank you, Mr. Chairman. Thank you for holding
    this very important hearing.
        You know this is an issue that--not just the Ombudsman but
    small business regulatory relief is something near and dear to
    my heart. Since February 1999, I have been working to help 159
    innocent small businesses in Quincy, Illinois, to obtain
    freedom from the Superfund litigation nightmare. And it has
    been a nightmare, and it continues to be a nightmare.
        Last week, when the EPA Administrator Carol Browner
    disproved the Small Business Liability Relief Act, killed its
    chances in the House and the measure failed, I lost all faith
    that EPA really wanted to work toward small business relief.
        Yesterday, when I heard the Keystone Pennsylvania lawsuit
    had settled and the EPA was touting a small business victory, I
    was appalled but not surprised that the settlement explicitly
    preserves waste management's lawsuit against Barbara Williams,
    another famous name in the fight against the bureaucracy,
    restaurateur from Gettysburg, Pennsylvania. I just wish
    Chairman Goodling was here to join us, the restaurant owner who
    we all heard about numerous times.
        Let me read from some of the release of the EPA: EPA is
    pleased to conclude this extensive, expensive and contentious
    litigation. That is why we need Superfund reform--because it is
    expensive, extensive and contentious.
        Here's another quote from their release: But Congress still
    needs to address the basic deficiency in the Superfund law
    which allowed this huge number of defendants to be sued. Hence,
    House Resolution 5175 which the EPA fought to defeat on the
    floor.
        Also, listen to this, the part of the release: When the
    United States sued 11 parties, these parties then sued 130
    additional parties, and these 130 additional parties sued 500
    additional parties. That is the problem with--that is why we
    need Superfund reform.
        I understand this hearing is to investigate the role of the
    EPA Ombudsman and addressing concerns of local communities. I
    would just ask, where were you in Quincy, Illinois?
        I look forward to hearing about how the office has been
    successful, and I am sure we will hear where it has failed. And
    I will look for asking questions of how it can be improved so
    that you know the people who are caught in this type of
    litigation trap can get some relief from the Federal
    Government.
        I want to welcome the two panels. I do appreciate you
    coming.
        Mr. Chairman, I thank you for calling the hearing. I
    appreciate Chairman Bilirakis also being here, and I yield back
    the balance of my time.
        Mr. Oxley. Gentleman yields back.
        The gentlelady from Colorado.
        Ms. DeGette. Thank you, Mr. Chairman.
        I would like to, first of all, welcome Kim Boggiatto for
    being here today. She is a resident of the Overland Park
    community in my home city of Denver and was instrumentally
    involved in successful efforts to force the Environmental
    Protection Agency to remove radioactive wastes from the
    Shattuck Superfund site in Denver, Colorado, which both Mr.
    Fields and Mr. Martin have extensive experience with; and I am
    glad to see them here with us today as well. I am really
    pleased to have her insight on the role of the EPA Ombudsman's
    Office today.
        Since 1986, the residents of Overland Park community in
    Denver have tried to get the Environmental Protection Agency
    and other responsible parties to remove radioactive wastes from
    the Shattuck Superfund site. Today, that waste still is in the
    middle of a residential neighborhood. Radioactive soil in the
    area was mixed with fly ash, then clay and covered with a pile
    of rock. A study released in September 1999 by the EPA's 5-year
    review panel confirmed what residents of Overland Park had been
    saying for years, we cannot be sure that the entombment of
    radioactive dirt at the Shattuck Superfund site will protect
    human health and the environment.
        Thanks to the diligent efforts of the neighborhood
    association cleanup, many devoted citizens and the joint
    efforts of the elected officials, both city, State and Federal,
    the EPA announced June 16 of this year that the waste will be
    removed. However, questions continue to arise about what the
    Agency and the parties involved in the Shattuck site knew about
    the characteristics of the waste and when they knew it.
        Most recently, the Department of Energy revealed, for
    example, that the Shattuck Chemical Company was one of hundreds
    of companies that it secretly contracted with to do nuclear
    weapons work in the 1940's and 1950's to process radioactive
    and toxic materials. During the discussions concerning
    reopening the Shattuck chemical site record of decision, it was
    well-known that the Shattuck facility did receive radioactive
    waste from the Federal Government. However, a full accounting
    of what waste the Shattuck site accepted and disposed of has
    been impossible because of missing and inadequate records.
        The DOE's disclosure is troubling but not perhaps
    surprising to those of us who have been involved with the site.
    I will reiterate today what I said to Mr. Fields in a letter
    last month upon learning of the DOE report, which is that the
    citizens who have worked so long to see this waste removed have
    a right to expect that the EPA's promise to move the waste in a
    timely fashion will be fulfilled. While I think that there
    needs to be additional investigation into some of these sites,
    we cannot use it as an excuse to leave this waste onsite.
        I sound like a broken record. I have no doubt that the
    government intends to move it, but I think we all need to be
    ever vigilant to make sure that the poor decision is reversed
    and that this waste is removed.
        The EPA Ombudsman's Office played an important role in
    securing the EPA's commitment to remove the waste by providing
    the community with the resources and advocacy to compel the
    Agency to act. The independent oversight provided by an
    Ombudsman's Office is essential to provide individuals and
    communities like Overland Park with an additional voice and an
    additional advocate inside an agency like the EPA, particularly
    in cases like Shattuck where you are looking at questionable
    decisions by a Federal agency.
        The role of the Ombudsman must, therefore, be preserved to
    ensure that Federal agencies have an internal mechanism that
    will be vigilant and make sure that agencies act in the best
    interests of the public. The public needs a resource to help
    interface with the Federal Government to help obtain
    information and to investigate potential malfeasance or remedy
    inefficiencies. It is equally important for the Ombudsman's
    Office to uphold the highest ethical standards because, after
    all, this is the office responsible for maintaining the
    integrity and the mission of the Agency.
        Mr. Chairman, I want to thank you for having this hearing.
    I want to congratulate again Clean-It! and the neighbors and
    also the EPA Ombudsman for coming to the right decision in the
    Shattuck site, and I yield back anytime I might have left.
        Mr. Oxley. Further opening statements?
        The gentleman from Missouri, Mr. Blunt.
        Mr. Blunt. Thank you, Mr. Chairman. Thank you for holding
    this hearing and particularly for focusing on the role of the
    Ombudsman in solving problems and eliminating needless problems
    for people who are caught in the periphery of legitimate EPA
    actions.
        As you know, Mr. Chairman, the office of ombudsman's
    authority expired in 1988. I think that is why this hearing
    would be particularly helpful to determine how the exiting
    system is working, what we need to do to reauthorize in the
    best possible way a system that meets the needs of people who
    are again caught on the edges of EPA decisionmaking.
        We took a bill to the floor recently that was designed to
    eliminate problems for third-party defendants. That bill was
    opposed by the Agency. Hopefully, we can even hear some of the
    reasons that that happened and what we can do effectively to
    solve the kinds of problems that have been mentioned by my
    colleagues here today and the individual trauma, cost and
    devastation that can be created by misguided and misdirected
    targeting on the part of the EPA and what the Ombudsman's
    Office can do to see that that doesn't happen and to help third
    parties extricate themselves from this kind of involvement.
        I am glad you have held this hearing. I look forward to the
    testimony and to the questions.
        Mr. Oxley. Further opening statements?
        Mr. Green will submit a statement.
        Other opening statements?
        [Additional statements submitted for the record follow:]
     Prepared Statement of Hon. Paul Gillmor, a Representative in Congress
                             from the State of Ohio
        Mr. Chairman, I want to thank you for calling this hearing on the
    role of the Environmental Protection Agency (EPA) Ombudsman in
    addressing local concerns. It is essential that governmental agencies
    are responsive to the needs of the citizens that support them.
        The role of the EPA ombudsman was created in 1984 in the Hazardous
    Waste and Solid Waste Amendments. This position was established to
    create a place where people could issue complaints and request
    information on the various programs that EPA operates. Even more so,
    while the ombudsman was not supposed to be a policy or decision-maker,
    the position did allow the ombudsman to make suggestions directly to
    the EPA Administrator. The job of Ombudsman was, statutorily, intended
    to end in November of 1988.
        Over the last 12 years, Congress has continually funded this
    office. As I have had a long-standing interest in the operations of the
    EPA, I am intensely curious in knowing whether the Ombudsman's response
    to the public and its role as liaison and citizen advocate is
    justifying its continued existence. Particularly as the ombudsman's
    place in the Superfund debate in concerned, I want to know whether the
    people that have used the EPA ombudsman's office feel they have
    received an appropriate response. I look forward to their testimony
    today.
        Mr. Chairman, I believe today's hearing offers us a chance to
    answer a couple of important questions about the role of ombudsmen in
    our governmental system. First, while the position of ombudsman was
    first created over two hundred years ago, why did the United States
    wait until ten years ago to consider it an important position for our
    government? Second, the ombudsman is supposed to be a job which is
    independent of politics and the Executive Agency it is supposed to
    serve, does this separation between politics, policy, and performance
    still exist. Third, as Superfund is probably one of the EPA programs
    that receives greater community attention than some of the others, how
    has the EPA ombudsman responded at specific Superfund sites? And last,
    since the EPA ombudsman has operated without a congressional
    authorization for many years, should this program be affirmed with a
    reauthorization or cancelled entirely?
        I look forward to the testimony and comments of our two panels and
    thank you, Mr. Chairman, for bring attention to this important issue.
                                     ______

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

        Mr. Chairman, I want to thank you for holding this Subcommittee
    hearing today about the role of the EPA Ombudsman in helping local
    citizens get answers from EPA about Superfund sites in their
    communities.
        As I have said many times over the past eight years, the Superfund
    law and the Superfund program administered by EPA remain badly broken.
    As a result, many Superfund cleanups take too long to complete and cost
    too much. Even worse, as we have heard from scores of witnesses, one of
    the biggest problems with Superfund has to do with all the lawyers. For
    years the program has been inefficient because of the wasted time and
    resources as a result of waves of litigation, lawyer fees, excessive
    administrative costs and outrageous overhead.
        Often the people that stand to suffer the most are citizens who
    live in communities across the country that are located near Superfund
    sites. Today, I am pleased that we will hear from some of these
    residents concerning their experiences with the Superfund program, with
    EPA, and with the Superfund Ombudsman.
        The Ombudsman was created by law to ensure that affected the
    citizens would have a ``lifeline'' within EPA. To be effective,
    Ombudsman must be there to help at times when citizens have difficulty
    getting their voices heard within the maze of federal bureaucracy. And
    the Ombudsman must be able to help bring forward legitimate concerns
    when the government creates bureaucratic obstacles that hinder adequate
    public participation and ultimately delay cleanups.
        I look forward to today's hearing to assess the effectiveness of
    the Superfund Ombudsman over the years, and identify areas in which
    improvements are needed. I welcome each of the witnesses, especially
    the citizens who have traveled a great distance to be here today, and
    look forward to their testimony.

        Mr. Oxley. Let me recognize now our distinguished colleague
    from Idaho who has joined us today for the committee hearing
    and obviously has a particular interest in the Coeur d'Alene
    site, Mrs. Chenoweth-Hage.
        Mrs. Chenoweth-Hage. Mr. Chairman, I want to thank you and
    Chairman Bilirakis very much for giving me the opportunity to
    participate with your committee in this hearing today, and I
    commend you both for your tremendous leadership on this issue.
    You have been a godsend to those of us who have labored and
    labored under the EPA up in northern Idaho.
        I want to especially thank all the members of panel No. 2
    for coming so far at their own expense. I look forward to
    hearing the testimony of Bret Bowers from Coeur d'Alene who
    will speak on this issue, and he also has a short film that
    would be most interesting to the committee if he is allowed to
    show it.
        If there was ever an example, Mr. Chairman, of the need for
    an independent Ombudsman process to keep a check on the EPA,
    that example exists in northern Idaho. Now picture this: A
    beautiful, picturesque lake whose water measures above drinking
    water standards is the place where this out-of-control agency
    is treating this area as if it is a toxic waste dump, and yet
    we just heard the testimony from my colleague from Denver about
    the refusal to clean up the Shattuck Superfund site or their
    drawing out the process.
        So on one end we have a beautiful lake that measures above
    drinking water standards that they want to make a toxic waste
    dump, yet we had the Shattuck situation over here where they
    drug their heels.
        Obviously, I can spend several hours today going over with
    you the numerous abuses, whether it be livestock feeder areas
    or whatever it might be, but the fines, the misrepresentations
    that the people of my district have experienced at the hands of
    the EPA--in fact, I have for years investigated the issue
    involving the North Idaho Lake Coeur d'Alene Superfund area.
    The bottom line is that the Agency has created a tremendously
    drastic solution in search of a problem up there. It is a
    beautiful area to live, and they can't find the problem, and it
    is leading to havoc and distress in the communities spread
    throughout the whole Coeur d'Alene basin.
        Mr. Chairman, I have worked for years to expose the
    misdirected policies by the Federal Government in that basin,
    but I strongly believe that only when the Ombudsman Bob Martin
    and his chief investigator Hugh Kaufman entered into this
    process at our request that we achieved a breakthrough on this
    issue, and your direct intervention--yours and Chairman
    Bilirakis's--certainly helped to elevate this issue.
        The sole purpose of the Ombudsman from the very beginning
    has been to get to the truth of this matter, asserting that by
    only finding the truth can we make good public policy and not
    harm the citizens that we are meant to serve. They have not
    been afraid to ask the tough questions, as you will see in the
    film, no matter what threats they are receiving from their own
    agency or even from the U.S. Justice Department.
        Mr. Chairman, as you will hear about today, in August of
    this year, Mr. Martin and Mr. Kaufman conducted a 15-hour
    hearing in Idaho on the Superfund issue, finally bringing to
    the surface many troubling questions that have plagued this
    area. So, as a result, we are working together and we are
    forcing EPA to answer some very important and critical
    questions.
        Mr. Chairman, I have more in my opening statement. I would
    like to submit it for the record.
        At this time, I will yield back the balance of my time.
    Thank you.
        Mr. Oxley. Gentlelady's full statement will be made part of
    the record, without objection.
        [The prepared statement of Hon. Helen Chenoweth-Hage
    follows:]

     PREPARED STATEMENT OF HON. HELEN CHENOWETH-HAGE, A REPRESENTATIVE IN
                        CONGRESS FROM THE STATE OF IDAHO

        Mr. Chairman, I want to first thank you and Chairman Mike Bilirakis
    for giving me the opportunity to participate in today's hearing. I
    commend you both for your tremendous leadership on this issue. I am
    confident that because of your efforts the EPA will change the way that
    it does business.
        I also want to especially thank Bret Bowers, a constituent of mine
    from Coeur d' Alene, Idaho, who has come to testify about the ombudsman
    process in Northern Idaho. I encourage the Committee to pay close
    attention to his testimony. He is a vocal leader on this issue and
    knows first hand the harms of EPA policy in the region, and the need
    for an ombudsman process.
        Mr. Chairman, if there was ever an example of the need for an
    independent ombudsman process to keep a check on the EPA, that example
    exists in northern Idaho--where this out-of-control agency is treating
    one of the most beautiful river basins in the country as if it were a
    toxic waste dump.
        I could spend several hours today going over with you the numerous
    abuses and misrepresentations that the people of northern Idaho have
    experienced at the hands of the EPA. In fact, I have for years
    investigated this issue. The bottom line is that the agency has created
    a drastic solution in search of a problem--and it is leading to havoc
    and distress in the communities spread throughout the Coeur d'Alene
    Basin.
        Mr. Chairman, I have worked for years to expose the misdirected
    policies by the federal government in the Basin. But I strongly believe
    that when the Ombudsman, Bob Martin, and his Chief Investigator, Hugh
    Kauffman, entered into the process at our request, we achieved a break
    through on this issue. Their sole purpose has from the very beginning
    has been to get to the truth of this matter, asserting that by only
    finding the truth can we make good public policy and not harm the
    citizens we are meant to serve. They have not been afraid to ask the
    tough questions, no matter what threats they are receiving from their
    own agency or even from the U.S. Justice Department.
        Mr. Chairman, as you will hear about today, in August of this year
    Mr. Martin and Mr. Kauffman conducted a fifteen hour hearing in Idaho
    on the Superfund issue, finally bringing to the surface many troubling
    questions that have plagued this issue for years but have received
    little attention.
        As a result of their work, we are finally forcing the EPA to answer
    these questions. For instance, why did the EPA prepare a plan to take
    over a private mine without even informing the owner of the mine? Or,
    why has the agency not even considered the bioavailability of lead in
    determining the health and environmental hazards of mixture of minerals
    in the soil? Why has the agency not tested for the natural occurrence
    of lead in this mineral rich area? Why does it continue to push for an
    expansion of the process when there are no discernible health and
    environmental problems? What did the agency do with $80 million worth
    of Indium?
        Mr. Chairman, shutting this process down before we have had a
    chance to answer these and many other critical questions would be
    nothing short of irresponsible, costly and even tragic. For the sake of
    the numerous impacted communities throughout this nation, this $7
    billion dollar agency requires an independent investigatory wing--with
    much more resources than a shoestring budge of $300,000 and a couple of
    public servants expected to cover several investigations at once. I
    strongly encourage the committee to support an independent ombudsman
    process, and keep these numerous governmental abuses of the people at
    bay. Again, I thank you for giving me the opportunity to be here today.

        Mr. Oxley. Are there other opening statements?
        If not, we now recognize the aforementioned Mr. Tim Fields,
    Assistant Administrator for the Office of Solid Waste and
    Emergency Response with U.S. EPA, and Mr. Robert Martin, the
    Ombudsman with U.S. EPA, as well. Gentlemen, welcome.
        Mr. Fields, we will begin with you.

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

        Mr. Fields. Thank you, Mr. Chairman. It is a pleasure to be
    here today before both of your subcommittees to talk about this
    very important topic, namely the functions of the OSWER
    Ombudsman at EPA.
        I am pleased to be here with Mr. Robert J. Martin, the
    National Ombudsman for the EPA Office of Solid Waste and
    Emergency Response; and I would like to start by just giving a
    brief summary of how this function has evolved over the years
    since Congress enacted it in legislation in 1984 as part of the
    amendments to the Resource Conservation and Recovery Act.
        That office was established to address public inquiries or
    complaints regarding the Resource Conservation and Recovery Act
    of that time. The statutory authority did expire about 5 years
    later and EPA, though, believed the function was very valuable
    so we agreed to continue this function as a part of EPA's
    operation, even though the congressional mandate had expired.
        In 1991, the Office of Solid Waste and Emergency Response
    expanded the functions of the Ombudsman to include not just the
    RCRA hazardous waste and solid waste programs but also
    Superfund, underground storage tanks and other elements of our
    national environmental cleanup and waste management program.
        In 1995, the Administrator of the EPA, Carol Browner,
    announced an administrative reform to create 10 Regional
    Ombudsmen in our 10 regions that would be there to respond
    locally to public inquiries or concerns as well.
        We fully support the National Ombudsman function in
    headquarters. That is why, when the statutory mandate for this
    expired more than 11 years ago, we agreed to continue it and
    have since that time.
        To address the evolution of the Ombudsman function, though,
    which has expanded in authority based on our administrative
    policy to do so, we have tried to promote coordination between
    the National Ombudsman and the 10 Regional Ombudsmen that exist
    in the 10 EPA regional offices..
        We are now developing new program guidance to supplement
    and update the outdated Hazardous Waste Ombudsman Handbook
    which we have been operating under since 1987. A work group was
    convened last year, including the National Ombudsman Bob
    Martin, some of the Regional Ombudsmen, other headquarters and
    regional officials of EPA, to develop an updated guidance
    document. The guidance is undergoing internal EPA review at the
    current time, and we hope to publish this in the Federal
    Register in the next several weeks, making it available for
    public comment for 60 days. We then intend to finalize this new
    updated Ombudsman guidance in terms of how the EPA Ombudsman
    both in headquarters and our regions would operate. The Agency
    plans to also publish this draft guidance on our EPA Web site
    to make it more available to the public as well.
        Today, the National Ombudsman responds to numerous
    inquiries and complaints about programs administered by our
    waste programs and environmental cleanup programs both in
    headquarters and the regions. For the most part, the National
    Ombudsman obviously handles cases of national significance or
    cases where there is an actual or perceived conflict of
    interest on the part of a Regional Ombudsman. The ombudsman's
    role is primarily to focus on the Agency's practices and
    procedures and how citizens or other interested parties have
    been treated under those practices and procedures.
        The Ombudsman strives to encourage and promote changes to
    policy, practices and procedures that will both impact and
    address the concerns of individuals as well as the community as
    a whole. I think the Ombudsman has been very successful at
    doing that over the years.
        The Ombudsman has a wide latitude in terms of selecting and
    investigating complaints. The Office of Solid Waste and
    Emergency Response recognizes the importance of the Ombudsman
    function, and we want to try to make it as independent to the
    maximum extent possible under our laws and regulations.
        EPA steadily over the years increased the funding for the
    Ombudsman function, and we continue to provide support to not
    only the National Ombudsman but also additional support to the
    10 Regional Ombudsmen as well, to the tune of about a million
    dollars a year.
        I believe the Ombudsman program is operating very
    successfully. I recognize it can operate even better. I assure
    you that the Agency will continue to support the Ombudsman
    function, irrespective of whether new legislation is enacted or
    not. We intend to continue to provide resources to make the
    function capable of assisting communities across the country as
    it has in the past.
        I look forward to responding to questions that the
    subcommittees may have on this. I think we share a common goal
    with the two subcommittees convened today and Mr. Martin, which
    is to make the Ombudsman function as effective and efficient as
    it can be so that we can meet the needs of citizens across this
    country.
        Thank you very much, Mr. Chairman.
        [The prepared statement of Timothy Fields, Jr. follows:]

      PREPARED STATEMENT OF TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR,
    OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION
                                     AGENCY

                                  INTRODUCTION

        Good morning, I am Timothy Fields, Jr., Assistant Administrator for
    the Office of Solid Waste and Emergency Response (OSWER) at the
    Environmental Protection Agency (EPA). I am accompanied this morning by
    Mr. Robert J. Martin, the OSWER National Ombudsman. Mr. Martin and I
    want to thank the Committee for the opportunity to appear before you
    today to discuss the national EPA Ombudsman program

                     HISTORICAL BACKGROUND OF THE OMBUDSMAN

        The hazardous and solid waste management laws passed by Congress
    created some of the most complex programs administered by EPA and the
    States. Recognizing this, Congress established a National Ombudsman
    function in 1984 as part of amendments to the Resource Conservation and
    Recovery Act (RCRA). Establishing an Ombudsman provided the public with
    someone to contact with questions and concerns about the RCRA program.
    When the statutory authority for the National Ombudsman program expired
    in 1989, EPA's OSWER retained the function as a matter of policy. In
    1991, OSWER broadened the National Ombudsman's scope of activity to
    include other programs administered by OSWER, particularly the
    Superfund program. The National Ombudsman is located in the EPA
    Headquarters office in Washington, D.C. and reports directly to the
    Principal Deputy Assistant Administrator for Solid Waste and Emergency
    Response.
        The Ombudsman is authorized to provide information and investigate
    complaints and grievances related to OSWER's administration of the
    hazardous substance and hazardous and solid waste programs implemented
    under the following authorities:

     Comprehensive Environmental Response, Compensation and
            Liability Act (CERCLA) or Superfund;
     Resource Conservation and Recovery Act (RCRA), including UST;
     Emergency Planning and Community Right-To-Know Act (EPCRA) or
            Superfund Amendments and Reauthorization Act, Title III;
     Oil Pollution Act; and
     Clean Air Act, Section 112(r).
        In 1995, a Regional Ombudsman position was created in each EPA
    Regional office as part of the Agency's Superfund Administrative
    Reforms effort. On June 4, 1996, Administrator Browner formally
    announced the appointments of the Regional Ombudsmen. The Regional
    Ombudsmen program, at a minimum, operates in support of the Superfund
    program. Depending on the Region, however, the Regional Ombudsman may
    also provide support to other programs, including RCRA, Underground
    Storage Tanks (UST), and chemical emergency prevention and
    preparedness.
        We fully support the National Ombudsman program under the
    jurisdiction of the Assistant Administrator for OSWER. We believe that
    the Ombudsman function is a very important one for the Agency and the
    public. That is why when the statutory authorization for the Hazardous
    Waste Ombudsman function expired, EPA chose administratively to
    maintain the Ombudsman function and broaden the scope of the function.

                      PURPOSE AND STATUS OF DRAFT GUIDANCE

        Soon after Congress established the Ombudsman program, the Agency
    issued the Hazardous Waste Ombudsman Handbook to help the newly created
    National and Regional Ombudsmen administer, and the public understand
    what to expect from, the Ombudsman program. During the initial years of
    the Ombudsman program, most of the assistance sought by the public was
    for help understanding the complicated RCRA program. The Ombudsmen
    spent most of their time responding to general questions and directing
    requests to the appropriate sources. The handbook reflected this role.
        Over the years, the public gained a better understanding of EPA's
    hazardous waste programs. Requests for answers to basic questions
    became requests for resolution of complaints. The Ombudsman function
    has evolved to reflect the changing needs of its clients. The existing
    guidance no longer reflects the evolution of the Ombudsman function. In
    the Fall of 1999, the Assistant Administrator of OSWER established an
    internal EPA workgroup to look at updating the Hazardous Waste
    Ombudsman Handbook. The workgroup, chaired by Michael Shapiro,
    Principal Deputy Assistant Administrator for OSWER, includes several
    Regional Ombudsmen, the National Ombudsman, representatives from the
    Office of General Counsel, the Office of Inspector General, the Office
    of Enforcement and Compliance Assurance and several senior Regional
    Managers. In preparing the updated guidance, the workgroup met with
    representatives of the U.S. Ombudsman Association and evaluated and
    considered guidance documents from this organization as well as other
    organizations with Ombudsman programs and the American Bar
    Association's draft Standards for the Establishment and Operation of
    Ombudsman Offices. The workgroup has attempted to draft guidance which
    reflects key aspects of various external models in a manner that works
    for a civil service position within the Federal structure. We believe
    the draft guidance will provide for effective and fair implementation
    of OSWER's Ombudsman program.
        The updated guidance will explain to the public the role of the
    National Hazardous Waste and Superfund Ombudsman and Regional Superfund
    Ombudsmen today, their scope of activity, and the guidelines under
    which they coordinate and carry out their responsibilities. The main
    objective in issuing this guidance is to improve the effectiveness of
    the program by giving the Ombudsmen, and those who may contact them, a
    clear and consistent set of operating expectations and policies.
        The guidance is currently undergoing internal Agency review. The
    Agency expects this review to be completed in the next several weeks.
    EPA will then publish a notice in the Federal Register announcing the
    availability of the draft document and requesting public comment. I am
    anticipating a public comment period of 60 days. The Agency also plans
    to make the draft guidance available on EPA's internet website.
        I will now share with you the Agency experience with the operation
    and role of the National and Regional Ombudsmen.

                           THE ROLE OF THE OMBUDSMAN

        The Ombudsman is the Agency official designated to receive
    inquiries and complaints about the administration of an OSWER program.
    It is important to note, however, that the role of the Ombudsman is not
    that of decision-maker nor of a substantive expert for the Agency. The
    Ombudsman's role is primarily to focus on the Agency's procedures and
    how citizens and other interested parties have been treated under those
    procedures.
        The Ombudsman is not an advocate for a community or any person or
    institution. Rather, the Ombudsman encourages and promotes changes he/
    she believes will serve both the individual and the public interest.
    The Ombudsman seeks to reform and improve management practices,
    policies, or administration of such policies that he/she believes are
    inefficient or unfair and that may have given or may give rise to a
    complaint.
        Generally, the National Ombudsman handles cases of national
    significance and/or cases of actual or perceived conflict of interest
    on the part of the Regional Ombudsman. The Regional Ombudsmen handle
    the more routine requests for assistance and conduct more informal
    inquiries to investigate complaints. Nevertheless, the Ombudsmen may be
    called upon to serve in a number of capacities: 1) providing
    information and facilitating informal contact with EPA staff, 2)
    conducting informal fact finding inquiries and developing options to
    deal with difficult problems, 3) helping to mediate disputes, and 4)
    making recommendations to Agency senior management regarding procedural
    and policy changes that will improve the program. The goal of the
    Ombudsman is to respond to requests in an appropriate and objective
    manner as promptly, informally and privately as possible.

    Providing Information
        Many members of the public and regulated community either do not
    know how to get information about the solid and hazardous waste
    programs in OSWER or feel frustrated in their attempts to cope with the
    complexities of these programs. The Ombudsman may be asked to help a
    citizen understand how EPA operates, what the appropriate laws, rules,
    or policies are, or how a citizen may directly handle a complaint. The
    Ombudsman may answer general questions about any of the programs
    administered by OSWER, or may direct the person to the appropriate EPA
    staff to answer the questions. The Ombudsman may also facilitate the
    communication between a requester and EPA staff. In doing so, the
    Ombudsman assists members of the public to gain access to information
    about the solid and hazardous waste program that will help them
    participate more fully in established Agency processes.

    Conducting Inquiries
        The Ombudsman may look into a requestor's concerns with respect to
    any program or requirement under the solid and hazardous waste programs
    implemented by OSWER. The purpose of such an inquiry will be to
    ascertain the facts of the case and the perspectives of all the
    involved parties. Since the Ombudsman has no direct decision-making
    authority, if he/she finds that a policy or procedure has not been
    properly followed or someone has not been treated fairly, he/she may
    make recommendations to the appropriate Agency officials. In such
    cases, the Ombudsman will generally issue a report explaining the
    findings and supporting the recommendations made. The officials who
    administer activities being criticized will be given a chance to review
    the report prior to its release and attach comments to it.

    Mediating Disputes
        Many of the issues brought to the attention of the Ombudsman may be
    resolved through facilitated communication or informal mediation, with
    the Ombudsman serving in the capacity of a neutral third party. It is
    almost always in the best interests of those who ask the Ombudsman for
    assistance and the Agency if a mutually agreeable solution can be
    found. If the circumstances seem favorable, the Ombudsman will work
    with the parties and help them move toward agreement. The role of the
    Ombudsman is not to advocate for a particular outcome, but to try to
    increase understanding and to assist in the search for appropriate ways
    to reach closure.
        Unlike formal mediation, the Ombudsman always retains the
    discretion to limit the issues which will be considered (in formal
    mediation the issues to be discussed are left to the parties to
    decide). Also, unlike formal mediation, the Ombudsman is as concerned
    about identifying and encouraging needed institutional reforms as in
    solving a specific problem.

    Encouraging Institutional Reform
        The Ombudsman is in a unique position to improve the management and
    implementation of the OSWER-related programs. On a regular basis, he/
    she hears issues, concerns and criticisms of the programs from a wide
    variety of sources. From this, he/she may identify policies and
    procedures which are causing problems as well as opportunities for
    making program operations more efficient or effective. Alerting senior
    EPA managers to what may be an unwise policy or practice, or unfair
    administration of a policy is as important as the resolution of the
    specific problem. By making well documented recommendations to EPA
    program managers, the Ombudsman can point the way to positive
    institutional change that should prevent or reduce future similar
    problems from arising in the future.

                         INDEPENDENCE OF THE OMBUDSMEN

        No matter what capacity an Ombudsman is serving in at any given
    time, the Agency has worked to ensure the Ombudsmen's ability to
    operate independently. As you are probably aware, one of the main
    principles an Ombudsman operates under is the ability to operate
    independently in determining what cases to work on, how an inquiry
    should proceed and what are the findings of a inquiry.
        From the time the National Ombudsman was established by Congress,
    this function has been a federal government employee reporting to a
    senior Agency official. Because the Ombudsman is a federal employee,
    the National Ombudsman cannot be completely independent in the normal
    course of relations between supervisors and their employees. But, OSWER
    recognizes the importance of an Ombudsman being and appearing to be
    independent from the organization he/she is investigating. For example,
    OSWER has given the National Ombudsman his independence to the maximum
    extent possible. The Assistant Administrator (AA) for OSWER does not
    monitor the Ombudsman's workload. The AA does not select which cases
    the Ombudsman will take, nor directs the Ombudsman how to investigate a
    complaint. The AA does not interfere with or attempt to influence the
    Ombudsman as he formulates his findings and recommendations.
        The National Ombudsman reports to Deputy Assistant Administrator
    (DAA) Michael Shapiro. As his supervisor, DAA Shapiro is the approving
    official on all procurements requested by the National Ombudsman.
    Generally, for ongoing investigations, funding is approved on an as-
    needed basis. Where significant resources are requested, DAA Shapiro
    may become more involved in a case so he is able to determine that the
    resources requested are available and that the procurement is the
    effective mechanism to accomplish the Ombudsman's objective.

                       FUNDING FOR THE OMBUDSMAN PROGRAM

        The EPA has provided adequate resources (funding, person-years,
    etc.) for the Ombudsman function since it was created. In all cases
    when the need has arisen, additional funds have been provided to the
    Ombudsman function. That includes the assignment of staff to support
    this function and the assistance of the ten Regional Ombudsman as
    needed. In addition, the Ombudsman, depending on the site and issues
    under review, has accessed the technical expertise of the EPA's
    Environmental Response Team to supplement his investigative efforts.
        Over the years, funding for the National Ombudsman function has
    steadily increased despite the fact the Superfund program budget has
    been reduced. In fact, funding has gone from roughly $117 thousand in
    fiscal year 1993 to over $519 thousand in fiscal year 2000. The
    Regional Ombudsman function is funded at roughly $1 million a year,
    under the ten Regional budgets.

                         ACCOMPLISHMENTS OF THE PROGRAM

        The National and Regional Ombudsmen receive many calls for
    assistance each year--ranging from routine questions about hazardous
    waste laws to specific complaints about unfair practices conducted at a
    site or facility. The Agency has frequently adopted recommendations put
    forth by the Ombudsman program. Before I close, I would like to share
    with you an example which demonstrates the success of the Ombudsman
    program.
        In 1999, local residents asked the National Ombudsman to look into
    the EPA Superfund program activity associated with the Shattuck
    Chemical Site in Denver, Colorado. Community members did not feel the
    remedy adequately protected public health and the environment. As part
    of his investigation, the National Ombudsman held three hearings to
    hear the concerns of community members. He also interviewed government
    officials, local residents, and EPA staff and reviewed the
    administrative record of the site. In October 1999, the National
    Ombudsman issued his draft recommendations. Subsequently, EPA selected
    an alternative remedy for the Shattuck Chemical Site.
        Is the program operating successfully? I believe so. Generally, as
    a result of the Ombudsman's involvement, a better decision is reached,
    communities are satisfied with the outcome and public health and the
    environment are protected. The Agency will continue to support the
    Ombudsman function and make resources available so that it may continue
    to assist communities across the nation.

        Mr. Oxley. Thank you, Mr. Fields.
        Mr. Martin.

                       STATEMENT OF ROBERT MARTIN

        Mr. Martin. Thank you, Mr. Chairman. I am pleased to be
    here this morning to appear before you and the honorable
    members of this committee.
        In speaking just extemporaneously for a moment, I have been
    doing this job for 8 years; and in the course of doing that job
    I have talked to a lot of people, and I have met a lot of
    people all over the country and meeting with those people and
    working with them has enriched my life. I want to recognize
    them as I appear before you today, and I am very glad that you
    will be hearing from some of them in the course of this
    hearing.
        I have a few things which I would like to speak to in the
    spirit of doing our job better and in doing what the EPA must
    do, which is to protect human health and the environment, that
    is its mission, particularly in the Superfund program. As we do
    that, I think it is critically important that we listen to
    people more, because I don't feel we have listened enough, and
    it is a very hard job to do, to listen.
        I also feel that we need to be more compassionate, because
    we have so much power in the Superfund program. The Agency has
    so much power in that program, and we need to feel how we
    affect people's lives every day in the exercise of that power
    or by not exercising that power.
        Third, I feel we need to be more thorough in our job. There
    have been countless times when I have undertaken cases in
    different parts of the Nation where I have heard that we have
    missed this or have missed that, and I think it is very
    important to catch it all in the front end. I think that people
    in the end want to know how big of a problem they are facing,
    if they are facing one. They may not be able to fix it right
    away, we may not have enough money, may not have enough
    resources, it may take a long time, but we need to stay in a
    place of truth with that, with people. And also, obviously,
    where there may not be a problem we should not be focusing
    extraordinary resources to examine that.
        So with that being said, I am very honored to be before you
    today and would be glad to respond to your questions, not only
    in this session but individually as well as afterwards and
    perhaps in meetings. Thank you sir.
        Mr. Oxley. Thank you, Mr. Martin, and job well done for 8
    years. We appreciate your sincerity and your commitment to your
    job.
        Mr. Fields, let me first indicate to you what appeared to
    be good news last week when the announcement came from U.S. EPA
    that the Keystone landfill site in Pennsylvania had been
    adjudicated and there was a settlement, and what appeared to be
    on the surface very good news turned out to be, based on the
    timing at least, rather interesting, to say the least.
        Let me quote you from Mr. Campbell, Bradley M. Campbell, I
    am sure you know the EPA Administrator for Pennsylvania, for
    eastern Pennsylvania. He says, quote, EPA is pleased to
    conclude this extensive, expensive, contentious litigation. We
    are eager to shift more of our attention and resources from the
    courtroom to cleanup--EPA Administrator Bradley Campbell--but
    Congress still needs to address the basic deficiency in the
    Superfund that allowed this huge number of defendants to be
    sued. And indeed there were over 130 original defendants that
    ballooned to 580 additional parties.
        He goes on to say, today's settlement reflects the
    fundamental Superfund reforms which made it fair to the little
    guys who never should have been sued by the large polluters in
    the first place, said Steve Herman, Assistant Administrator for
    EPA's Office of Enforcement, Compliance and Assurance.
        Those quotes sound familiar, but most of those came from
    this side of the dais. By using these reforms, we protected
    small waste contributors from costly third-party lawsuits and
    deterred similar litigation in future cases.
        It was particularly interesting because about that time, as
    you know, we were working with EPA to craft legislation that
    would not only take care of the small business folks at the
    Keystone landfill, including the now famous Barbara Williams
    and her restaurant, but indeed all of those folks who stood in
    their shoes or stand to be in their shoes over the next few
    years unless we solve this incredible morass that has
    encompassed many of these small business people whose only sin
    was sending chicken bones to the local landfill.
        Now, as you know, we had that legislation, H.R. 5175, on
    the floor last week, and we worked very hard in trying to
    assuage some of the concerns that EPA had with the bill. But,
    frankly, I am disturbed that at the moment we thought we could
    move forward in a bipartisan manner your staff refused to meet
    with my staff, even though we requested a meeting to work on
    some of those changes. Matter of fact, the changes we made in
    the original legislation of the 1999 text were changes that EPA
    had requested.
        What I am going to do is give you a copy of the bill that
    was unable to secure two-thirds votes in the House last week
    and ask you by the end of the week if you can make some written
    comments back to this committee as to why EPA chose to oppose
    this very common-sense legislation, particularly in the face of
    statements that came out of the EPA about--beating their chest
    about how successful they were in this settlement in
    Pennsylvania.
        I might also point out that, despite all of the apparent
    good work that was done, the aforementioned Barbara Williams,
    in actuality this settlement does nothing for her. As a matter
    of fact, it preserves the right of Waste Management to pursue
    their suit against her.
        So let me first ask if you can provide us with some
    information in that regard, regarding the legislation and how
    it squares with that settlement in the statements therein, and
    also whether in fact that that is correct that Barbara Williams
    is still subject to litigation after over 5 years in this
    predicament.
        Mr. Fields. Okay. I will be happy to--the three points you
    made there, I will be happy to provide written comments back on
    H.R. 5175 and the administration's concerns about elements of
    that bill that we would have, you know, we would have concerns
    about and we ran out of time.
        [The following was received for the record:]

        Attached is a letter from Timothy Fields, Jr., Assistant
    Administrator, Office of Solid Waste and Emergency Response,
    which provides legislative language that addresses the
    Superfund liability of small parties.

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        Mr. Fields. Obviously, as the Administrator has said, Mr.
    Congressman, as I have said many times, we do support targeted
    Superfund liability relief for small parties. However, this
    bill was different than the one that we were working on in
    terms of a draft last fall, and we ran out of time in terms of
    being able to resolve all of our issues.
        We want to continue to work with this committee to provide
    liability relief for small businesses, and we would like to
    continue to work with you and others in Congress to do that in
    the future. However, we do have some concerns, and I think that
    was communicated in a letter the Administrator sent to
    Congress, went to Congressman Tauzin and others on September
    22.
        Two other points you made and I want to make clear, and I
    think this is a comment that Congressman Shimkus alluded to in
    his opening remarks. I want to make very clear that the
    statement is not correct about the Keystone settlement and the
    vulnerability of Barbara Williams' former restaurant. My
    understanding is that she has now sold that restaurant.
        But in the consent decree, we explicitly required that the
    selling parties, Waste Management, the Noels, they would have
    to waive their claims against all parties, including the
    nonsettlers like Barbara Williams. We included similar waivers
    in our prior settlements with the original generator
    defendants, the selling third and fourth parties and the de
    micromis parties.
        The truth is, we have done everything in our power to
    protect Barbara Williams and those who are similarly situated.
    No one who settled with EPA can sue any of the nonsettlers. So
    we want to clarify that, because we have seen some statements
    by NFIB which were incorrect on that point.
        Mr. Oxley. If I could interject, that statement came from
    EPA, not from NFIB; is that correct?
        Mr. Fields. No. EPA is trying to set the record straight.
    We saw a statement from NFIB that, despite that settlement
    signed on Keystone, that Waste Management could still sue
    Barbara Williams.
        I want to set the record straight and say EPA's position is
    and the settlement language says specifically--if you want I
    can give you the cite; it is in section 24, paragraphs 179
    through 185--it makes very explicitly clear that the selling
    parties cannot sue Mrs. Williams or any other nonsettlers as
    part of this consent decree that has been signed. That is our
    position. That is our reading of that consent decree.
        Mr. Oxley. Now is your reading of our bill that Barbara
    Williams and all of those folks would be relieved of liability
    straight up?
        Mr. Fields. Your bill and that particular element of your
    bill that you sponsored, Mr. Chairman, H.R. 5175, it would
    solve the problem of the small business like Barbara Williams
    who generated----
        Mr. Oxley. How come we couldn't get 290 votes for it?
        Mr. Fields. H.R. 5175 was not the same bill that we were
    discussing.
        Mr. Oxley. No, it wasn't. Actually, we accommodated EPA on
    several issues, including, if I might point out, applying the
    de micromis exemption prospectively.
        Now do you agree that H.R. 5175 addresses this concern?
    Because that was the concern that we were told by EPA--and we
    specifically addressed that.
        Mr. Fields. Mr. Chairman, you did address that concern.
        I do want to point out, though, that the bill we were
    discussing with NFIB, that was not really a bill but a draft
    proposal of October, 1999, that was different than H.R. 5175,
    was introduced this session. It is true that you and your staff
    worked with us heroically to try to address a lot of our
    concerns. We do still have some lingering concerns, though.
        For example, the Administrator is concerned that the burden
    of proof has shifted to the government. The government must
    prove that a business that sent over a hundred pounds of
    waste--that a business that sent over a hundred pounds of waste
    is not exempt.
        You know, I will give you comments specifically on the bill
    this week, but there were elements in this bill that we could
    still not support.
        Mr. Oxley. So it is EPA's position that the burden of proof
    should be on Barbara Williams and not on the Federal
    Government, is that your position?
        Mr. Fields. Well, we don't think that the government----
        Mr. Oxley. Is that yes or no? Is that yes or no?
        Mr. Fields. The answer is, we do not believe that the
    government should have to prove that a business sent over a
    hundred pounds of waste.
        Mr. Oxley. That is a unique and very interesting theory in
    American law. Because you know when I went to law school a long
    time ago, we studied that people were innocent until proven
    guilty and that the burden lay on the government to prove that
    those people were indeed guilty. So, basically, the EPA is
    turning this legal concept on its head, is it not?
        Mr. Fields. Well, the problem, Mr. Chairman, is that
    oftentimes the business records are not--oftentimes not
    available. This would cause litigation because we would be
    disputing whether or not----
        Mr. Oxley. You wouldn't want litigation. We certainly
    haven't had a whole lot of litigation.
        Mr. Fields. We want to avoid that, and we think this
    particular element of the bill would encourage litigation.
        Mr. Oxley. Would encourage litigation. You mean, even more
    litigation than we already have?
        Mr. Fields. Because of the unavailability of adequate
    records to document how much material actually went to a
    material site.
        Mr. Chairman, we will be happy to give you some comments by
    the end of the week as you request on your bill, but I wanted
    you to share with you that, as the Administrator said in her
    letter, there are elements like that we believe would increase
    transaction costs and promote litigation. We will be happy to
    give you a letter for the record that gives you specific
    elements of how we believe that bill, H.R. 5175, would promote
    litigation and increase transaction costs. That is what you are
    requesting. We are willing to do that.
        Mr. Oxley. This is, as the Four Tops sang, ``the same old
    song,'' Mr. Fields, 1965, I think, by the way.
        Mr. Fields. I heard it.
        Mr. Oxley. But we have been through this, and it just seems
    to me from where I sit that our efforts to try to make some
    common sense in this Superfund law which we have been at for it
    seems my entire adult life, it is always a moving target. If it
    is not the de micromis settlement prospectively, then it is
    burden of proof.
        So I get the sense that we are in a game where the goal
    posts keep being moved on us, even like Charlie Brown, where we
    get set to kick the field goal and Lucy, a/k/a Carol, pulls a
    football out and I end up flat on my keister.
        You know, I am getting pretty damn tired of that. It is the
    same old story. We try to get a reasonable bill on the floor of
    the House that was supported by virtually all Republicans and
    46 or so Democrats, that made a lot of sense and would get
    these small business people out of the litigation nightmare,
    not create more litigation, create less litigation. This is not
    brain surgery here. Yet we found a situation where we couldn't
    get it done because somebody had a political agenda, and I just
    find that unfortunate.
        Let me yield to the gentlelady from Colorado.
        Ms. DeGette. Thank you, Mr. Chairman.
        Let me just say that that particular bill, H.R. 5175, when
    it came to the floor was not a bill that the minority had seen
    or had the opportunity to work on. People like me really felt
    like it was a good step toward resolving some of these
    liabilities for the small folks like the restaurant owners who
    have been mentioned today and others. However, there were some
    other details in the bill that were really problematic.
        I think we could have worked those details out had we known
    about it before it came to the floor, but, as we all know,
    Superfund is very technical. There is a long established body
    of law, and the last thing we want to do is upset the equities
    in existing laws which would encourage litigation.
        So I would offer--Mr. Chairman, for next year I would offer
    personally to work with you on this issue. It is an issue, as
    you know, I have worked on a lot; and I will guarantee you if
    we come up with an agreement I won't pull the football out and
    leave you on your keister.
        Mr. Oxley. Thank you.
        Ms. DeGette. You are welcome, Charlie.
        Let me get back to the topic at hand a little bit. I would
    like to ask Mr. Fields, you heard me talk in my opening
    statement about these new findings by the Department of Energy
    about some States that processed radioactive materials; and I
    am wondering if the recent disclosure by the DOE needs to be
    investigated by the EPA as regards the Shattuck site so that we
    can properly characterize and dispose of the waste.
        Mr. Fields. Yes, Congressman DeGette, we are including
    Shattuck. We initially, through the USA Today article, had
    identified 153 sites. We have now discovered in discussions
    with DOE several hundred others. We are investigating all those
    sites, one of which was Shattuck; and the Department of Energy
    is also doing a file review on a parallel track to determine
    what information they have about this waste disposal area so--
    as well.
        So I assure you there is an ongoing investigation by EPA,
    DOE and others trying to assess exactly what is the situation
    regarding radiation waste at Shattuck in light of this
    disclosure in recent weeks.
        Ms. DeGette. How will this affect the timetable for removal
    of waste at Shattuck?
        Mr. Fields. We don't believe it will affect, in any way,
    the timetable for removal of waste. We are in the design phase
    right now. We committed to the community we would have this
    material moving away within 2 years. That is the same time
    schedule we are on. We are doing this effort aggressively, on a
    parallel track, with the design being done.
        We will have to make sure, however, the waste is properly
    characterized. Any waste that goes offsite will have to be
    characterized to determine exactly what is there and whether or
    not the facility we are going to take it to is properly
    licensed to take that material. So it is critical we get this
    investigation that you alluded to done quickly. So that can
    factor into the schedule for moving this material offsite.
        Ms. DeGette. But it is your view today the removal schedule
    should not be affected.
        Mr. Fields. We do not intend for the removal schedule to be
    updated.
        Ms. DeGette. I think that is pretty clear.
        Mr. Martin, let me ask you if you have any sense why your
    office's investigation of the Shattuck site did not uncover any
    of the information that the DOE just released.
        Mr. Martin. When I undertook my review of the Shattuck
    site, which began last June, we did meet with officials from
    the company, this W.S. Shattuck Company, were provided a tour
    of the site; and since that time I can tell you I have had
    suspicions that the waste at the site was other than as
    described on the basis of questions that we have asked and also
    on the basis of documents that we reviewed in the
    administrative record in the region. It is a concern that we
    have had, and we are investigating.
        Ms. DeGette. Mr. Martin, to follow up a little bit, I know
    that there were a number of statements by you and by the chief
    investigator about potential criminal activity at the Shattuck
    site made in the press and other places. I am wondering if, to
    your knowledge, there have been any reports made to local law
    enforcement or Federal law enforcement officials about criminal
    activity or anything you have uncovered at the site.
        Mr. Martin. I made no statements about potential criminal
    activity in the course of the hearings which we undertook for
    the Shattuck site. However, to the extent we have any reason to
    believe through our review of the record or otherwise by
    talking to officials within the region, the State or the
    company that there may be, you know, criminal activity, we will
    refer them to the Inspector General of the EPA.
        Ms. DeGette. But to your knowledge no referrals have made
    to date.
        Mr. Martin. I have made no such referral.
        Ms. DeGette. Thank you.
        Let me ask you generally, I know the ABA is looking at
    general Ombudsman standards and the subcommittee issued a
    report this past July to the American Bar Association House of
    Delegates recommending a set of standards for the Ombudsman
    office to follow.
        On the one hand, the recommendations stated that the
    Ombudsman should not conduct an investigation that substitutes
    for administrative or judicial proceedings; and an Ombudsman
    review should not serve as the foundation for disciplinary
    activity or civil action or a determination of a violation of
    law or policy. The report goes on to say, and, by the way, the
    subcommittee says that the ABA supports the greater use of
    ombudsmen; and it says that ombudsmen should review allegations
    of unfairness, maladministration, discourteous behavior,
    incivility, inappropriate application of law or policy,
    inefficiency or decision unsupported by fact.
        I am wondering, Mr. Fields, if you can tell me, does the
    EPA Ombudsman follow these guidelines? And if not, do they
    intend to in the draft report that you are working on? And if
    not, tell me how it operates differently.
        Mr. Fields. Well, the EPA has looked at the American Bar
    Association Ombudsman guidelines. We have looked at this report
    that you have referred to as well. We are looking at all those
    sources. We are looking at the guidelines of the U.S. Ombudsman
    Association. We are looking at those elements of those
    guidelines that are the best components, and we intend to apply
    those and incorporate those into the EPA guidance we are
    developing that we will make available to the public shortly.
        We think there are certain elements of those guidelines
    that fit the EPA structure, but there are some elements that do
    not. Complete confidentiality, for example. We cannot provide
    complete independence, for example. We are working to try to
    make sure those elements of those various models that have been
    published by various organizations including ABA are
    incorporated into our guidance that we are developing and make
    sure that they are compatible with Federal law and EPA policy
    and procedure.
        Ms. DeGette. Mr. Martin, would you have any comment on
    that?
        Mr. Martin. Yes, I would.
        I served and still serve on the Working Committee for the
    American Bar Association for Ombudsmen, and I was integrally
    involved in the development of the language which you have
    spoken of just a moment ago. And I think the direct point is
    that once an Ombudsman becomes an adjudicatory body it is no
    longer an Ombudsman. Therefore, an Ombudsman cannot be a judge,
    cannot make recommendations which are binding upon the entity
    that it reviews. This function has never done that and I don't
    believe ever will.
        Mr. Oxley. Gentlelady's time has expired.
        The gentleman from Florida, the chairman of the Health
    Subcommittee.
        Mr. Bilirakis. Thank you, Mr. Chairman. I will just
    continue in that vein.
        In 1990, as I understand it, the Administrative Conference
    for the United States recommended that all government agencies
    with frequent contact with the public consider establishing an
    Ombudsman service. The conference also indicated that, and I
    quote, Mr. Fields, ``it is important that Ombudsmen be
    independent of the line offices and that they are seen as
    independent.''
        Well let me just say, this is difficult. It is difficult
    for those of us who have worked with, and developed
    relationships with, the Ombudsmen over many months, to get them
    in a position where they are sitting here to the right hand of
    their boss, not under oath and asking them to basically say
    what is in their hearts. And in all honesty--that makes it very
    difficult for me.
        Because, let me just put it this way, Mr. Fields, with all
    due respect--this is not intended to be any kind of a threat or
    coercion or anything of that nature. I don't really know what
    Mr. Martin is going to testify to here today. He was asked to
    testify, and apparently accepted the invitation to testify.
    Ordinarily, a written statement is submitted to this committee
    prior to that testimony. We did not receive a written
    statement. We were told he was not going to be able to testify.
    Then, of course, this morning he is here to make an oral
    statement. You know, a reasonable person would certainly read
    an awful lot into all of that.
        I would hope that no matter what happens here today or
    during the process of reauthorizing and maybe putting into law
    specifics in terms of the functions of the Ombudsman, that
    there would not be any repercussions on Mr. Martin or any
    members of his staff. And I know that you will tell me there
    won't be, but you and I know that sometimes things are said and
    other things happen, whether the person who made the comment
    means it or not.
        You were asked, Mr. Martin, to testify before this
    committee. You did not provide a written statement. Now you are
    here today to speak orally. Is there anything you would like to
    share with this committee in that regard? It is true you were
    invited to testify.
        Mr. Martin. That is correct, Mr. Chairman.
        Mr. Bilirakis. It is true that you planned to testify.
        Mr. Martin. That is correct, Mr. Chairman.
        Mr. Bilirakis. And it is true that that changed and then
    this morning you are to give an oral statement.
        Mr. Martin. There was confusion, Mr. Chairman, about the
    submission of testimony to the committee. I had a discussion
    with our Office of Congressional Affairs in which they
    indicated that a statement or statements would be prepared for
    Mr. Fields and myself. That discussion occurred around
    September 23. I then understand from my staff that there had
    been a joint statement prepared by the Agency as late----
        Mr. Bilirakis. Joint statement for the two of you.
        Mr. Martin. Yes, sir, yeah. That had been prepared by the
    Agency.
        Mr. Martin. Yes, and as of last evening, in fact, the joint
    statement was still prepared; and then I understand a statement
    was submitted that was from Mr. Fields alone.
        Mr. Bilirakis. Did you feel that you should provide your
    own statement?
        Mr. Martin. I feel the Office of Ombudsman--I feel, as
    Ombudsman, that I should be able to provide my own statement to
    this committee. I understand that because of legal difficulties
    within the agency, perhaps the administration, any such
    statement would have to be cleared through the Office of
    Management and Budget and perhaps other entities as well. I
    understand those difficulties. But to answer your question,
    yes, I do feel I should be able to.
        Mr. Bilirakis. Had you prepared your own statement and went
    through the process and just didn't make it through the
    process?
        Mr. Martin. No, sir. I was led to believe that a joint
    statement would be prepared and submitted.
        Mr. Fields. Mr. Chairman, could I enter this one and
    clarify this, just to add to this question?
        Mr. Bilirakis. I suppose so.
        Mr. Fields. Mr. Martin--and I--and we apologize. There was
    some confusion. Mr. Martin was on leave, and we did talk to
    staff in the Ombudsman. We assumed that one statement from the
    administration--obviously, Mr. Martin was not restricted in any
    way from being able to communicate with this committee.
        We traditionally prepare one statement that allows several
    witnesses--whether it is me and Steve Herman or me and Lois
    Schiffer--when we get letters from committees of Congress we
    traditionally put together one statement and have both
    witnesses there to respond to questions. But I assure you there
    was not any attempt to try to stifle a statement from the
    Ombudsman.
        Mr. Bilirakis. Mr. Fields, with all due respect, again, I
    don't think there is any confusion. The letter of invitation is
    right here; and it is pretty darn clear, the form of your
    testimony and that sort of thing.
        You know, it gets again to the independence aspect. It gets
    to the problems that led up to this hearing, the problems that
    we ran into in our different sites in Denver, in Idaho and
    Florida, et cetera.
        You know, you made the comment, sir, that the Ombudsman's
    Office is operating very successfully. Maybe some people would
    say in the eyes of EPA maybe too successfully. You know, I was
    part of this committee when we did the Superfund bill, as was
    Mr. Oxley. Not too many people up here were here at this time.
        The Superfund bill took up all hours of several days and
    nights, and it was a very contentious type of a thing. It
    shouldn't have been, I suppose, but it was because partisanship
    always plays a part. But I do remember very clearly back when
    the Ombudsman concept was being brought up and a lot of us
    ended up supporting the Superfund bill; and many people who,
    frankly, were being blasted by various special interest groups
    were thanked after it all was done.
        But in my mind I am not sure they understood what the role
    of the Ombudsman would be in Superfund program, and I sure
    understand it now from what I have seen in Tarpon Springs.
    Thank God for it and thank God for those people who--I wasn't
    one of them--came up with the concept. I suppose I supported
    it. I can't remember back to 1984. But my point is it has
    probably worked too well from what I have seen.
        Now, you know, we have seen documentation, Mr. Fields,
    basically withholding funds from the Ombudsman's office. Maybe
    they are doing their job too darn well. I don't want this to be
    a militant type of hearing. Do you agree that the Ombudsman--as
    you have stated, Mr. Fields, is not an advocate for a community
    or any person or institution? That is in your testimony. I
    believe you have said that.
        Mr. Fields. That is in my testimony. That is my statement.
        Mr. Bilirakis. It has also been in some of the
    communications I have read that your office sent out. Mr.
    Martin, do you agree with that?
        Mr. Martin. An Ombudsman should not serve as an advocate
    for any particular person but can serve as an advocate for--to
    be frank, the truth, after an investigation is under way or has
    been performed and I may find facts that I believe are
    undeniable and if I feel those facts are being ignored by the
    Agency, I then advocate for those facts.
        Mr. Bilirakis. When you feel that way, what sort of
    response are you accustomed to receiving from the Agency?
        Mr. Martin. Well, the process at times can be long and
    arduous, but I feel that over the course of the past 8 years
    the Agency has adopted many of my recommendations--I would say
    70 to 80 percent.
        Mr. Bilirakis. Mr. Fields, just one last question. My time
    has expired. I appreciate the Chair's indulgence. Do you agree
    that the Office of the Ombudsman should be reauthorized?
        Mr. Fields. We have no problem with the Office of the
    Ombudsman being reauthorized. We do have concerns with some of
    the legislative proposals, though, that would add elements to
    that reauthorization.
        Mr. Bilirakis. In other words, you feel that your agency
    should continue to control their actions.
        Mr. Fields. No. We think, though, that the ABA model
    statute is not the appropriate guideline to embody as the
    overarching body for the Ombudsman activities. We think there
    are elements of those provisions that cause problems for a
    Federal Government Ombudsman, but we support the Ombudsman
    function being reauthorized. We think it is a valuable
    function. We would continue to operate this function
    irrespective of whether or not Congress reauthorizes this
    legislation.
        Mr. Bilirakis. I would like to get into funding and that
    sort of thing. My time has expired.
        There will be further questions that I and others will be
    submitting to you; hopefully, you will respond to those in due
    time.
        Thank you, Mr. Chairman. I am sorry to have taken up so
    much time.
        Mr. Oxley. Time of the gentleman has expired.
        Chair now recognizes gentleman from Wisconsin first, right?
    No, the gentleman from Ohio, Mr. Sawyer.
        Mr. Sawyer. Mr. Chairman, I was worried that you had
    forgotten where I was from for a second there.
        First of all, let me say thank you to both of you gentlemen
    for being here. It is good to see you both.
        Let me direct my first question to a matter of specific
    history within my district regarding the industrial excess
    landfill. Back in 1997 the concerned citizens of Lake Township,
    who had been working on the issues surrounding that site for
    some time, asked then Senator John Glenn and me to intervene on
    their behalf with the Agency to allow them to conduct tests of
    soil and water site. After more than 6 months, in August 1997,
    we obtained permission for the testing to begin. I thought that
    was particularly--a particularly good idea because up to that
    time test results had been problematic.
        Just about the time that the test permission was obtained,
    that same citizens group determined that it really did not want
    to undertake tests. Instead, they requested a review by the
    Ombudsman. That request was denied, and I pressed for the
    Ombudsman's participation. Senator Glenn at that point withdrew
    from that request, feeling that until the tests had actually
    been conducted he didn't want to pursue another avenue of
    inquiry.
        I had hoped at the time that the Ombudsman could become in
    its very special way an active participant, not just reviewing
    the history of the site but, more importantly, in examining the
    site to decide how best to protect the public health and safety
    and the confidence of the residents in the area. So I pleaded
    the case with Administrator Browner, and the Ombudsman was
    given permission for a preliminary review in September 1998.
        Mr. Martin, you advised me that your findings would be
    available shortly. You came to my office in October 1998 and
    repeated the same assertion. In January 1999, you conducted a
    hearing, all of which I am very grateful for. We met again in
    the spring of 2000 in May of this year when you suggested that
    your findings were imminent. Can you tell me what shortly or
    imminent means?
        Mr. Martin. Means this week, sir.
        Mr. Sawyer. Does it mean this week?
        Mr. Martin. Yes.
        Mr. Sawyer. I am looking forward to that. It has been
    frustrating as you, I am sure, can appreciate, particularly as
    we have seen other avenues of resolution move forward along
    parallel tracks.
        Mr. Fields, has it been your experience that this kind of
    timetable is normal?
        Mr. Fields. Well, obviously, the Ombudsman has a lot of
    major cases that are before him. I am sure that Mr. Martin has
    been--being the good public servant he is--is trying to balance
    all those priorities he has to deal with. He has a number of
    cases involving Superfund and RCRA sites across the country,
    and many members on these two subcommittees are aware of those
    cases. So I know that the history of the IEL matters go back
    more than 10 years.
        I do want to say one of the reasons it took a while to even
    initiate the Ombudsman review was because this site, as you
    know, has been subject to four major reviews even before the
    Ombudsman got involved--the Science Advisory Board, the Office
    of Inspector General, Clean Sites Incorporated, EPA's radiation
    labs. So it is probably one of the most studied Superfund sites
    in the history of EPA.
        But--I look forward to the Ombudsman's report, but I do
    know that, you know, Mr. Martin does have to balance a lot of
    major cases all going on at the same time in trying to make
    judgments as to which ones he does first, but sometimes the
    cases do get delayed necessarily just because of the need to
    balance competing priorities across the country.
        Mr. Sawyer. Mr. Martin, do you have a comment?
        Mr. Martin. Yes, sir.
        I thank you for your patience and your forbearance. I also
    thank you for your intervention. Because when the request for
    my help came from citizens in your community, I was denied by
    Administrator Browner, and you did intervene, and that was a
    successful intervention.
        Since that time, yes, I have done a public hearing in the
    community. I have completed my review of the reviews that Mr.
    Fields had just spoken of, and I am prepared to sit down with
    you this week and give you my preliminary recommendations.
        Mr. Sawyer. I look forward to counselling with both of you
    when that report becomes available. Thank you very much.
        Mr. Martin. The issue of resources----
        Mr. Sawyer. I do understand that.
        Mr. Chairman, I have been asked to pose one further
    question by the staff, if I might. The question revolves around
    the question of whether the Ombudsman and his employees have
    arrest powers and the right to take an individual into custody.
    This centers around an event on June 5 in a town meeting in St.
    Petersburg, Florida, where the chief investigator is
    characterized here as giving the Miranda warning to two EPA
    employees from Region 4.
        I am not an attorney, but to my knowledge that warning is
    only given in the case of a criminal investigation. Was this
    intended to be a Miranda warning? Let me read it to you from
    the record.
        The chief investigator speaking said, you have the right to
    remain silent. You have the right to counsel. Anything you say
    may be used against you in a court of law. Proceed to the
    witness.
        Mr. Fields. Is that for me or Mr. Martin?
        Mr. Sawyer. It is for both of you.
        Mr. Fields. Your question is, does the Ombudsman function
    have subpoena powers or----
        Mr. Sawyer. Or arrest powers.
        Mr. Fields. The Ombudsman function, as currently
    constituted, does not have those authorities or powers.
        Mr. Sawyer. What would be the purpose of a Miranda warning
    then?
        Mr. Fields. I will have to defer to Mr. Martin on that. I
    was not at the hearing. I will let Mr. Martin speak to the
    purpose of the statement on June 5.
        Mr. Martin. I will be glad to respond, sir.
        To be clear, no, the Office of Ombudsman--the Ombudsman
    function has no arrest powers, has no detention powers, does
    not do criminal investigations.
        I want to get to the specific point of what was said in the
    context of the hearing that I did in Tarpon Springs, Florida,
    earlier this year where the issue of the warning arose.
        Prior to that meeting, Mr. Kaufman, who serves as my chief
    investigator, had met with staff from our Office of Inspector
    General with whom I have had a working relationship for many
    years in many cases; and I have done criminal referrals to the
    Office of Inspector General. Mr. Kaufman was advised--and I
    would also like to note that he has really the firsthand
    testimony which can be provided on this issue--was advised, and
    he is present behind me, that it may be necessary for us to
    give certain warnings to preserve a potential criminal case
    that the IG would do in the event we made a referral after
    completion of our investigation.
        Since that time, the Office of Inspector General, at our
    request and at the request of Mr. Fields, has provided us with
    a memorandum of instruction on when warnings can be issued.
        Mr. Sawyer. Thank you very much.
        Ms. DeGette. Would you yield?
        Mr. Sawyer. I would, but if you could share with us that
    instruction.
        Mr. Fields. We will be happy to share this for the record.
    It is a memo dated September 12, 2000, from the Office of
    Inspector General that we will be happy to provide for the
    record. Mr. Kaufman has also provided a response to this memo
    as well, and those could be provided for the record to this--to
    both subcommittees.
        [The following was received for the record:]

        Attached are two memorandum, the first is from Mark Bialek,
    Counsel to the Inspector General to Michael Shapiro, Principal
    Deputy Assistant Administrator. The second is from Hugh
    Kaufman, Senior Engineer to Mark Bialek. These memorandum
    explain the EPA Inspector General's position in regard to
    whether the OSWER National Ombudsman has subpoena or arrest
    power.

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        Mr. Sawyer. Let me yield to the gentlelady.
        Ms. DeGette. If the gentleman would yield, I, in fact, am a
    lawyer and used to do a fair amount of criminal work.
        Frankly, the administration of the Miranda warning by
    someone who has no law enforcement or administrative authority
    is not going to be meaningful at all in a court of law. Because
    a knowing waiver can't be made by anybody who might give
    perjurious testimony or testimony that would cause them to
    self-incriminate. So, therefore, I would suggest, Mr. Fields,
    when you develop your new standards you include this issue in
    your new standards. Because unless you have an agent of a
    Federal, local or State law enforcement agency to administer
    the Miranda warning, this isn't going to have any effect
    anyway.
        Mr. Fields. I agree--Mr. Chairman, I will respond quickly.
        I agree with that, and it has been clarified now in this
    memorandum that came from the Office of Inspector General that
    only qualified Office of Inspector General personnel and
    criminal enforcement division personnel from the Office of
    Enforcement have the power and the authority to conduct
    investigation of potential criminal violations and
    administrative misconduct and issue such warnings, as you just
    pointed out; and that will be made explicitly clear in future
    guidance.
        Mr. Oxley. Gentleman's time has expired.
        The Chair now recognizes the gentleman from Illinois, Mr.
    Shimkus.
        Mr. Shimkus. Thank you, Mr. Chairman.
        Mr. Martin, I am glad that you are here. You have a very
    gentle spirit, and I say that with all due compliments because
    I think you probably need it in that job.
        Also, we, as Members of Congress, there are 435 ombudsmen,
    and this is our job and in many different areas. This is why I
    have taken on the Quincy issue so fervently. I find it hard to
    be an effective Ombudsman if you are not even allowed to
    provide your own written statement. How can you be totally
    independent?
        I understand that it would have to get vetted through some
    folks, but I just find that symptomatic of a problem that
    really, Mr. Fields, I hope you end up addressing at some time.
        Mr. Martin, who is giving you advice behind your--who is
    the gentleman behind you with the beard and glasses and from
    what office does he come from?
        Mr. Martin. It is Mr. Kaufman with the Office of Solid
    Waste and Emergency Response which Mr. Fields is representing
    and which I am in, and he has served as my chief investigator
    in a number of cases.
        Mr. Shimkus. Is he in the Office of the Ombudsman or is he
    in Mr. Fields' office?
        Mr. Martin. He is technically in Mr. Fields' office,
    because my position description is such that I have no
    authority to supervise any EPA employees.
        Mr. Shimkus. I thank you. I think that is also a telling
    issue of some independence or lack thereof.
        Mr. Fields, how many times have I asked for some language
    from you in a hearing of this sort to relieve small business,
    provide them some liability protection? I can remember two
    times, and I can remember two times you providing the
    affirmative action assurance that you would provide me or this
    committee some language. Have I ever received language?
        Mr. Fields. We have worked on language with committee
    staff, Mr. Congressman. I don't recall us providing language
    specifically to you. I do know that we had worked on language,
    but I don't recall whether we provided it.
        I would just make one quick--this will be 30 seconds--just
    to clarify that Mr. Martin, his statement would not have to be
    cleared by any of the administration to submit a statement.
    That is not a requirement we have in terms of Mr. Martin
    being----
        Mr. Shimkus. Let us don't go there because, obviously, it
    didn't happen today.
        I would like to place in the record statements from the
    NFIB concerning EPA's lack of leadership on small business
    relief legislation.
        [The information follows:]

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        Mr. Shimkus. I would also like to show you--and I am
    referring to Mr. Fields--and place in the record some draft
    text that we were provided in November 1999.
        [The information referred to follows:]
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        Mr. Shimkus. On top of the first copy of the fax line, it
    says the Office of Administrator at EPA. The first copy is
    incomplete. So I have an additional complete copy that has both
    EPA and NFIB's name on the fax lines, and I want to know very
    clearly with a yes or no, if possible, was this paper produced
    at the EPA after discussions with the EPA?
        Mr. Fields. This is November, 19--I see it says November 3,
    1999.
        Mr. Shimkus. November 3, 1999, EPA, AO and then--the same
    line--with another line from NFIB Government Relations.
        Mr. Fields. I provided a letter for the record August 18,
    2000 which said that NFIB and EPA had developed some language
    in November 1999. I don't know if this is the specific same
    language, but I assume this is close to or similar to language
    that we were working on at the time with NFIB staff and EPA
    staff. I would have to read this carefully and verify for you
    to know if that was exact same language, but I know we were
    working on language at the time.
        Mr. Shimkus. Please do because we obviously believe that it
    is the same language and that really this committee has moved
    in great strides to try to meet many of the EPA's demands and
    especially in the bill we had on the floor.
        The bill addresses a relationship with entities to parents,
    subsidiaries and affiliates as requested by the EPA. The bill
    addressed the potential effect of the bill on concluded actions
    as requested by administration staff. The bill withdraws
    liability protections if a small business fails to comply with
    administrator support orders to compel compliance with requests
    for information as requested by
        EPA. The bill narrows the definition of households as
    requested by the EPA.
        Finally, at the request of the Administrator's staff, the
    bill makes clear that settlement offers must be in the public
    interest.
        I mean, we have moved really very far to meet your desires.
    I think the chairman's frustration has been experienced by
    myself, too, is we just want to know what you want. I mean,
    that is all. I think that is pretty clear.
        So I want to follow up on the chairman's request that you
    take 5175 and tell us what you want; and if you can do that by
    the end of this week we may be able to run another shot at this
    on the floor.
        As an Ombudsman for the citizens in my District--and I tell
    my colleagues and I said this on the floor--their time will
    come. Their time will come when the local restaurant owner is
    being the third party of a suit. As I mentioned in the opening
    statement, they will be in that block of 580 that are the third
    iteration of a suit in which their net income for the year will
    be at risk, either through a settlement offer by the EPA or
    countless litigation to get them out of this fund, and we have
    all agreed they don't need to be there.
        So since we are going to have probably another week here in
    Washington, we do have time to fix this; and so I will take you
    at your word that you----
        Mr. Fields. We will provide comments, yes, Chairman Oxley.
        Mr. Shimkus. Not just comments. We are not asking for
    comments anymore. We are done with comments.
        Mr. Fields. That is what the chairman----
        Mr. Shimkus. No, he didn't. He wants legislative language.
    He wants language that you would approve in a bill to exempt
    small businesses from this trap.
        You know, the Administrator's position on this and the
    failure to fight for small businesses, to say that it would
    expand litigation, is the biggest red herring I have ever
    heard, when the whole intent is to leave liability--the whole
    intent of the----
        Mr. Fields. There are elements of the bill----
        Mr. Shimkus. [continuing] language. We don't want
    overviews. We don't want synopses. We want legislative language
    to fix the bill, and I will take you at your word.
        With that, Mr. Chairman, I will yield back my time.
        Mr. Oxley. Gentleman yields back.
        The Chair now recognize the gentlelady from Wyoming, Ms.
    Cubin.
        Mrs. Cubin. Mr. Chairman, I don't have any questions at
    that time.
        Mr. Oxley. Then the Chair turns to the gentleman from
    Oklahoma, Mr. Largent.
        Mr. Largent. Thank you, Mr. Chairman. I do have some
    questions.
        Mr. Martin, when you were asked a question earlier you said
    that you believe that your office was an advocate for the
    truth. And the question I had for you when you said that was do
    you feel if the Ombudsman's Office is controlled or manipulated
    by the EPA that you can still pursue the truth?
        Mr. Martin. No.
        Mr. Largent. Okay. Did you have written testimony prepared
    for this hearing this morning?
        Mr. Martin. No.
        Mr. Largent. You never had a testimony prepared for this
    hearing.
        Mr. Martin. That is correct.
        Mr. Largent. Did you seek permission to provide testimony
    for this hearing when asked?
        Mr. Martin. I understood it was being prepared by the
    Agency.
        Mr. Largent. Which agency?
        Mr. Martin. The EPA.
        Mr. Largent. The invitation went to you, and the Agency
    began preparing the testimony for you, is that what you are
    saying?
        Mr. Martin. That was my understanding, yes.
        Mr. Largent. Did you not think that that was odd or is that
    normal operating procedure, that your testimony that you would
    provide before this hearing would be provided by the Agency or
    perhaps the gentleman that is sitting behind you?
        Mr. Martin. I did not receive the invitation letter
    directly.
        Mr. Largent. Did your office receive an invitation
    directly? Because we have a copy of it. Maybe there is a
    problem with the Postal Service. Maybe we can get them here.
        Mr. Martin. We did receive the invitation, I believe,
    yesterday; and it had been opened.
        Mr. Largent. It had been opened.
        Mr. Martin. Yes before we received the invitation.
        Mr. Largent. Who opened the invitation?
        Mr. Martin. I don't know, sir.
        Mr. Largent. Do other people routinely open your mail
    before you receive it?
        Mr. Fields. Mailroom--EPA's mailroom opens the mail
    oftentimes when it comes in, letters.
        Mr. Largent. Well, Mr. Martin, have you had a chance to
    read the testimony that the Agency provided for this hearing?
        Mr. Martin. Yes, I reviewed it this morning prior to the
    hearing.
        Mr. Largent. And do you agree 100 percent with its contents
    provided to this committee?
        Mr. Martin. I think there is some areas where clarification
    is needed.
        Mr. Largent. What would those areas be and what would you
    say to clarify them?
        Mr. Martin. I believe that in the area of the Regional
    Ombudsmen program, for example, there have been difficulties
    with the implementation of that program as it has been
    established by the Agency. The Regional Ombudsmen do not serve
    full time in those capacities. Instead, it is more like 5 to 10
    percent of their jobs; and their regular job is to report to
    the people whom they would be reviewing in their particular
    regions. That is a problem, and I think that it needs to be
    addressed by the Agency, perhaps by Congress in its discretion.
        Mr. Largent. So, basically, it would be similar to, say,
    having Firestone executives heading up NHTSA, overseeing the
    production of tires and quality control on tires. Essentially
    that is what is taking place, is that right?
        Mr. Martin. I think there are inherent conflict of interest
    problems, yes.
        Mr. Largent. And it is my understanding that when this law
    was created back in 1984 that the original authorizing language
    required that the Ombudsman--you were to report directly to the
    EPA Administrator. Is that how you operate today?
        Mr. Martin. No, sir.
        Mr. Largent. Who do you report directly to?
        Mr. Martin. I report to Mr. Fields deputy, Mr. Shapiro, and
    at times Mr. Fields.
        Mr. Largent. Why is that? Why are we not following the
    original intent of the law from 1984? How did that get altered?
        Mr. Martin. I cannot speak for the Agency about the
    reporting issue, but needless to say it is a decision of the
    Agency to have the reporting structure at this time.
        Mr. Largent. That is the hand you were dealt?
        Mr. Martin. That is correct.
        Mr. Largent. Do you feel like it would lend to the autonomy
    of the Ombudsman position if you reported, in fact, directly to
    the EPA Administrator.
        Mr. Martin. Yes, I do; and there is a study by the
    Administrative Conference of the United States which describes
    that as necessary.
        Mr. Largent. Thank you, Mr. Martin.
        Mr. Chairman, I yield back my time.
        Mr. Oxley. Gentleman yields back.
        The Chair is now pleased to recognize the gentlelady from
    Idaho who has joined our deliberations today. Welcome.
        Mrs. Chenoweth-Hage. Thank you, Mr. Chairman.
        I wanted to follow the line of the questioning initiated by
    Mr. Largent.
        I find it extraordinary that EPA was created under an
    executive order and yet the Congress thought so strongly about
    an Office of the Ombudsman that under Public Law 98-616 the
    office was created by the Congress, and so it is of great
    concern to those of us Members who are involved in these issues
    to make sure that the Ombudsman remains independent.
        I also find it extraordinary, Mr. Martin and Mr. Fields,
    that under EPA publications it is--the Office of the
    Ombudsman--is described as a high-level employee who serves as
    a point of contact for members of the public that have concerns
    about Superfund activities and that the ability to look
    independently into problems and facilitate communication that
    can lead to solutions, end quote, is a responsibility of the
    Ombudsman. I find that word ``independently'' to be very, very
    important to us.
        In addition, Mr. Fields, in 1990 the Administrative
    Conference of the United States, of which EPA participated in,
    published a report that states, it is important that Ombudsmen
    be independent of the line offices and that they are seen as
    independent.
        Now, in your testimony you went to great lengths, Mr.
    Fields, to talk about the handbook and the standards that are
    going to be published with regards to the conduct and the job
    responsibilities of the Ombudsman. I find that extraordinary. I
    find that to have EPA write rules and regulations and put forth
    standards for an Ombudsman whose office was created by the
    Congress whose--it has been stated very clearly they should
    remain independent, that is the antithesis of independence.
        Mr. Fields. I should clarify that the Hazardous Waste
    Ombudsman Handbook that was written back in the late 1980's,
    1987, was actually drafted by the first Ombudsman who was Mr.
    Martin's predecessor. Mr. Bob Knox was instrumental in drafting
    that first Ombudsman's handbook.
        So it was not something that EPA management dictated in
    terms of how the Ombudsman functioned or operated. It was
    actually done by staff. And particularly the National Ombudsman
    at the time was integrally involved in developing a Hazardous
    Waste Ombudsman Handbook. It was felt that there needed to be
    some procedures and guidelines on how the function should
    operate and how the Ombudsmen should go about doing their
    business. In the event that a subsequent Ombudsman came along
    that new Ombudsman would not have to start from scratch as
    there would be a handbook.
        As you know, Mr. Martin is now the second National
    Ombudsman we have had and that handbook was at least I think
    helpful when Mr. Martin began his job 8 years ago.
        Mrs. Chenoweth-Hage. And I think that handbook clearly lays
    out the need for independence and the concern that the Congress
    had when they implemented and passed and voted on Public Law
    98-616.
        My concern is with the standards that you have testified to
    that Lois Schiffer, Assistant Attorney General here in
    Washington, DC, had indicated that the Ombudsman's
    investigative matters should not be at issue in any issue
    pending the--that has pending litigation or administrative
    proceedings. Well, almost everything the EPA does is
    administrative proceedings. So knowing that Lois Schiffer has a
    big bark and that she has sent communications with regards to
    that particular issue, I am concerned that this is the kind of
    standard that we are going to see published and noticed in the
    CFR.
        Mr. Fields. Well, Ms. Schiffer has sent communications, I
    know, to you, Congresswoman, about that point and also to me.
        As you know, we--EPA decided that we still could proceed
    with an Ombudsman investigation in the Coeur d'Alene basin that
    you and other members of the Idaho delegation requested. We
    believe you can do an effective Ombudsman investigation and not
    impede matters involving ongoing litigation. The government
    must speak with one voice during litigation. As you know, as we
    have tried to do that.
        And I think we have tried to work with Mr. Martin's office
    to make sure that he can continue to conduct an investigation
    of the issues of concern to the public in Coeur d'Alene and not
    adversely impede ongoing litigation. That is an issue we are
    trying to continue to work with.
        But in spite of the recommendation initially by the
    Department of Justice that we not proceed with the Ombudsman
    hearing, we agreed and I supported, as you know, the need for
    the Ombudsman's investigation and hearing to proceed.
        Mrs. Chenoweth-Hage. Thank you, Mr. Fields.
        I see that my time is almost up, but I do note that under
    the administrative regulatory news it states that the Ombudsman
    should facilitate communication between citizens and where
    there is systemic failure or systematic failure to propose more
    general reforms--I just have to say that from my own personal
    experience, information that we were not able to acquire, such
    as plans to seize mines without notice to the owner, lack of
    chain of custody with regards to how samples were drawn, that
    is the first thing that impressed me about this Ombudsman, was
    his first question to me was, has there been a chain of custody
    that you have been able to turn up? If not, I will investigate
    that. That is the kind of investigation the people are crying
    out for and I think the Congress needed when it passed public
    law.
        Thank you.
        Mr. Oxley. Time of the gentleman has expired.
        The gentlelady from Wyoming.
        Mrs. Cubin. Thank you, Mr. Chairman.
        I am referring to the letter that Carol Browner sent
    regarding the legislation that Mr. Shimkus was discussing with
    you on H.R. 5175. I would like to just quote one sentence from
    it: For many years I have encouraged congressional committees
    in both the House and the Senate to pass reasonable, targeted
    legislation that addresses the Superfund liability of small
    parties. Can you be specific with me what the EPA has done,
    what those exact recommendations have been, other than the
    substance of the bill H.R. 5175? In other words, what didn't
    the Congress do that Administrator Browner wanted done?
        Mr. Fields. Well, the Administrator was referring to in her
    September 22 letter that over the last 7 years now we have
    obviously implemented a set of reforms to provide liability
    relief for small parties----
        Mrs. Cubin. Name them. Name some for me, please,
    specifically, sir.
        Mr. Fields. The administrative reforms we have implemented
    have provided de minimus settlements to more than 21,000
    parties that are impacted by Superfund liability. We have
    implemented a program of de micromis settlements where we
    settled for zero dollars or one dollar for very small, tiny
    parties at Superfund sites.
        Mrs. Cubin. And how many small business, third-party
    defendants have actually been helped by some of the things that
    you have done? I personally believe you would have a very, very
    difficult time in identifying people for me that have been
    helped by those things.
        Mr. Fields. Many of those 21,000 parties are, in fact,
    small businesses. We will be happy to get back to you for the
    record with an estimate of how many of those among that
    universe are small businesses.
        Mrs. Cubin. I would appreciate that very much.
        Mr. Fields, you state that many people don't know how to
    get information on solid and hazardous waste programs, or that
    they are frustrated by program complexities. Why have EPA
    personnel failed to provide easy access to this information?
    How many employees work in providing information to the public
    on solid and hazardous waste site s? And how many employees
    work in the National Ombudsman office?
        Mr. Fields. I don't know precisely how many people are
    working in EPA's enforcement program trying to identify amounts
    of waste, I think that is what you are referring to, that have
    been shipped to Superfund sites. There are hundreds of them, I
    know, across the country. The old records are difficult to
    find. It is a hard task, doing the searches necessary to
    document those waste amounts. But I would provide for the
    record to the subcommittees precisely how many of our
    enforcement personnel are involved in doing those tasks.
        [The following was received for the record:]

        The Environmental Protection Agency (EPA) recognizes the
    need for people living near Superfund sites to be well-informed
    and involved in decisions concerning sites in their
    communities. Through years of implementation of the program,
    EPA has determined that early and meaningful community
    involvement in the cleanup decisions is important in order to
    have a successful Superfund site cleanup. On-Scene
    Coordinators, Remedial Project Managers and Community
    Involvement Coordinators work with community members to ensure
    they understand what Superfund activities being conducted at a
    site and how the community can participate in the process. Each
    year, EPA staff members conduct hundreds of public meetings and
    door-to-door visits, and distribute thousands of fact sheets to
    communities. Many times EPA establishes a satellite office near
    a Superfund site to ensure community members have easy access
    to Regional staff.
        EPA also provides communities with technical assistance so
    that they are better able to meaningfully participate in
    cleanup decisions. The cornerstone of EPA's efforts is the
    Technical Assistance Grant (TAG) program. Under the TAG
    program, community organizations can apply for an initial grant
    of up to $50,000 to hire their own independent technical
    advisors. In FY2000, seven new TAGs were awarded, and
    approximately $1.25 million was given out for these new awards
    and for amendments to existing TAGs.
        A corollary to the TAG program is the Technical Outreach
    Services for Communities (TOSC) program. Through TOSC, EPA
    funds the Hazardous Substance Research Centers to provide
    independent technical assistance for communities. In FY 2000,
    the TOSC program was funded at $1.300 million. TOSC was active
    at 118 sites in FY 2000.
        EPA's Community Advisory Group (CAG) program seeks to bring
    together early in the process a broad group of stakeholders who
    are interested in the work going on at the site in their
    community. Started in June 1993, the CAG program is designed to
    enhance community involvement in the Superfund process. A CAG
    is designed to serve as the focal point for the exchange of
    information among the local community and EPA, the State
    regulatory agency, and other pertinent Federal agencies
    involved in cleanup of the Superfund site.
        Additional components of EPA's Superfund community
    involvement program include translations of public documents,
    and access to neutral facilitators. Some of the Superfund sites
    have non-English speaking populations surrounding them. In
    these cases, EPA translates public information documents into
    the languages of the people living near the site and provides
    interpreters at public meetings. EPA also provides community
    members with access to neutral conveners, facilitators, and
    mediators.
        In addition to the National Ombudsman, two full-time EPA
    employees, Senior Environmental Employee grantees and a number
    of student interns are assigned to assist the National
    Ombudsman. Also, the National Ombudsman has access to sources
    outside of EPA if additional assistance is needed to help him
    conduct an investigation. The Ombudsman function, depending on
    the sites and issues under its review during any one time,
    draws upon the existing technical resources of the Office of
    Solid Waste and Emergency Response, and particularly that of
    the Environmental Response Team, to supplement its
    investigative efforts. Each Regional Office has designated a
    Regional Superfund Ombudsmen as well.

        Mr. Fields. In terms of the people involved in the National
    Ombudsman's program across the country, I will defer to Mr.
    Martin for more details on his immediate staff.
        Mrs. Cubin. If you could just submit that for me.
        [The following was received for the record:]

        The Office of Ombudsman was abolished by Acting Assistant
    Administrator Tim Fields on October 31, 1997, one week after my
    receipt of a subpoena to appear in my official capacity before
    a Federal criminal grand Jury on the Times Beach Ombudsman
    case. There has been no Office of Ombudsman, therefore, since
    October 31, 1997 (See, Attachment 2). During my entire tenure
    as Ombudsman, I have been and continue to be the only permanent
    EPA employee assigned to the National Ombudsman function.

    [GRAPHIC] [TIFF OMITTED] T7120.058

    [GRAPHIC] [TIFF OMITTED] T7120.059

        Mr. Fields. I know there are 10 people in the regions who
    are spending some of their time on this function as well.
        Mrs. Cubin. I think the question that I cared the most
    about is why the EPA has failed to provide easy access to this
    information, as you stated yourself.
        Mr. Fields. Well, it is not easy information to get access
    to. Oftentimes, the records are not adequate to document how
    much waste has been shipped.
        Mrs. Cubin. When you say it is true that folks are being
    requested to give the information, they don't know what they
    are supposed to give.
        Mr. Fields. Well, maybe we could provide--as you were
    indicating, maybe we could provide better guidance or clarity
    providing the precise types of information people ought to be
    submitting. That is probably something we can work on.
        Mrs. Cubin. The subcommittee asked you to provide funding
    figures for the Ombudsman office for the current year and for
    the previous 5 years. I wonder why you didn't provide this
    specific information but instead you chose to only provide
    fiscal year 1993 and 2000 information. Why is that?
        Mr. Fields. I just did that just to summarize for the
    record. I have actually provided for this committee--I have
    with me today precise documentation that goes back for 10 years
    indicating the dollar figures for the Ombudsman's Office. It
    was roughly $230,000 in 1998, $360,000 in 1999, $519,000 in
    2000. I have numbers going back to 1990. I think it was like
    $117,000 in 1990. So I will provide for the record this piece
    of paper that documents from 1991 through 2000 the precise
    amounts that have been allocated for the Ombudsman function.
        [The following was received for the record:]

        Below is the annual budget for the National Ombudsman for
    the past ten years:

    FY91.......................................................  $116,000.00
    FY92.......................................................  $113,000.00
    FY93.......................................................  $117,000.00
    FY94.......................................................  $136,000.00
    FY95.......................................................  $142,000.00
    FY96.......................................................  $158,000.00
    FY97.......................................................  $157,000.00
    FY98.......................................................  $262,000.00
    FY99.......................................................  $345,000.00
    FY00.......................................................  $519,000.00

        Also, the National Ombudsman function, depending on the
    sites and issues under its review during any one time, draws
    upon the existing technical resources of the Office of Solid
    Waste and Emergency Response (OSWER), and particularly that of
    the Environmental Response Team, to supplement its
    investigative efforts.
        There are Regional Superfund Ombudsmen in each Regional
    Office, as well. These functions are funded at a total of
    roughly $1 million a year.

        Mrs. Cubin. Okay. Two things--I am not sure that just those
    single figures will be adequate. Will you be willing to provide
    further accounting to the committee if so requested?
        Mr. Fields. Sure.
        Mrs. Cubin. Then, last, do you believe that the office is
    being funded adequately at the levels that you----
        Mr. Fields. The Ombudsman function has been funded now at
    roughly $500,000 to $600,000 this year. I think, you know, and
    I will--we have got to make sure we provide the resources that
    Mr. Martin needs to do his functions.
        Mrs. Cubin. Do you think it is adequate?
        Mr. Fields. I think the budget of what we provided this
    year, of 500,000 to $600,000, is an adequate amount.
        Mrs. Cubin. Mr. Martin, do you think it is adequate?
        Mr. Martin. I want to clarify a question you had posed
    earlier about the number of people who work in my office. It is
    me--and Mr. Kaufman has been assigned at least half time to the
    office. I also have three interns whose term will be expiring
    near the end of this year who have been with me since the
    beginning of the summer. So this is the staffing. Given where
    the case load is going, it is extremely large, I think more
    resources will be needed.
        Mrs. Cubin. Doesn't seem like much of a commitment to me on
    the part of the EPA to actually try to work with constituents
    with one person across the United States officially working on
    their behalf to try to settle discrepancies between the Agency
    and citizens.
        But thank you very much. My time has expired.
        Mr. Bilirakis. Would the gentlelady yield?
        Mrs. Cubin. Certainly.
        Mr. Bilirakis. I would agree with you. It certainly doesn't
    seem to be consistent with the mission statement EPA has
    regarding cleanup of these Superfund sites.
        Mr. Fields, just very quickly, discussion took place
    regarding the Miranda warning and the instructions that were
    furnished to the Ombudsman's Office on the part of the
    Inspector General. We have a September 12 letter from Mark
    Bialek, Counsel to Inspector General. Is that the letter to
    which you referred?
        Mr. Fields. That was the letter I was referring to.
        Mr. Bilirakis. Is there another letter?
        Mr. Fields. I said there was a response from Mr. Kaufman. I
    think we agreed we would provide that for the record as well.
        Mr. Bilirakis. That was a response from Mr. Kaufman to Mr.
    Bialek.
        Mr. Fields. Yes.
        Mr. Bilirakis. Any further communications from Mr. Bialek
    in response to Mr. Kaufman?
        Mr. Fields. I am not aware of any further communications. I
    saw this letter, and then there was another letter from Mr.
    Kaufman on this matter. I am not aware of any other
    communications on this.
        Mr. Bilirakis. Well, the letter from Mr. Kaufman you are
    providing for the record.
        Mr. Fields. I don't have a copy of that with me today, but
    we did agreed to provide it.
        Mr. Bilirakis. Without objection, will the----
        Mr. Oxley. Without objection.
        Mr. Bilirakis. Without objection, that will be the case.
        All right, thank you very much.
        Mr. Oxley. Gentlelady from Idaho.
        Mrs. Chenoweth-Hage. Mr. Chairman, I just did some quick
    math. Considering the fact that this Ombudsman has 14 major
    cases going on around the Nation, he is spending, on an
    average, about $36,000 per case; and that includes travel,
    everything. It is--I think $500,000 is not much of a commitment
    to justice and truth.
        Thank you very much.
        Mr. Fields. Mr. Chairman, may I just add to that comment?
        I want to point out there are 10 other Regional Ombudsmen
    that we are funding for about a million dollars across the
    country in addition to the $500,000 that I talked about for
    2000. We have also supplemented Mr. Martin's support with
    support for the environmental response team at Edison, New
    Jersey, other EPA staff that also provide support. So it is not
    just that amount. There are other people across the country and
    in headquarters who are providing support over and above that
    $519,000 amount.
        Ms. DeGette. Mr. Chairman, if I could add my two cents.
        Mr. Oxley. Very briefly, gentlelady from Colorado.
        Ms. DeGette. I agree with my colleague to the north, Mrs.
    Cubin.
        I would chime in, also, that with the increased caseload of
    the Ombudsman and with the burdens that we are putting on him
    at not just a regional level but also a national level and with
    the new rules and requirements that you are in the process of
    promulgating it would seem to me that the Agency would want the
    make a commitment at the national level to have assistance for
    the Ombudsman and professional, paid, full-time staff that
    could assist in these investigations.
        I would echo, my view, too, if we are going in the
    direction of involvement in more cases for the Ombudsman, to be
    effective and responsible I think he is going to need to have
    adequate resources.
        Mr. Oxley. Gentlelady's time has expired.
        Let the Chair, in closing, do two or three housekeeping--
    the Chair would like to enter into the record a copy of the
    transmission report. This was the transmission of the
    invitation to appear at the hearing today to Mr. Martin, care
    of Randy Deitz. Mr. Martin, is that Randy Deits?
        Mr. Fields. Randy Deitz is the gentleman behind me here.
        Mr. Oxley. He work for you, Mr. Fields?
        Mr. Fields. Mr. Deitz works in the Office of Congressional
    and Government Relations at EPA.
        Mr. Oxley. Okay. This is a copy of the hearing invitation
    letter. Just for the record, the document was confirmed and
    sent on 9/27 at 4:35 p.m. That was Wednesday afternoon, just
    for the record.
        [The material follows:]

        [GRAPHIC] [TIFF OMITTED] T7120.060

        [GRAPHIC] [TIFF OMITTED] T7120.061

        Mr. Oxley. Mr. Fields, as you know, my colleague Helen
    Chenoweth-Hage has been closely following EPA Superfund-
    related activities in northern Idaho. One of her concerns is
    the EPA's plans for the new Bunker Hill Mine in Kellogg, Idaho.
    Congresswoman Chenoweth-Hage is not satisfied that she has
    received all of the EPA documents relevant to this site. I am
    going to submit several requests for information to you on her
    behalf. Can I have your assurance that you will respond to the
    request in a timely manner sought by my colleague from Idaho?
        Mr. Fields. I will do so, sir.
        Mr. Oxley. Thank you.
        Finally, Mr. Fields, in the discussion about the funding
    for ombudsmen and the like, you had indicated you had all the
    funding records with you.
        Mr. Fields. Yes, and our Congressional Affairs Office will
    make sure your staff are given those documents.
        Mr. Oxley. Can we have those submitted for the record?
        Mr. Fields. Sure.
        Mr. Oxley. Thank you.
        [The following was received for the record:]

        Below is the annual budget for the National Ombudsman for
    the past ten years:

    FY91....................................................     $116,000.00
    FY92....................................................     $113,000.00
    FY93....................................................     $117,000.00
    FY94....................................................     $136,000.00
    FY95....................................................     $142,000.00
    FY96....................................................     $158,000.00
    FY97....................................................     $157,000.00
    FY98....................................................     $262,000.00
    FY99....................................................     $345,000.00
    FY00....................................................     $519,000.00

        Also, the National Ombudsman function, depending on the
    sites and issues under its review during any one time, draws
    upon the existing technical resources of the Office of Solid
    Waste and Emergency Response (OSWER), and particularly that of
    the Environmental Response Team, to supplement its
    investigative efforts.
        There are Regional Superfund Ombudsmen in each Regional
    Office, as well. These functions are funded at a total of
    roughly $1 million a year.

        Mr. Oxley. The gentleman from Illinois.
        Mr. Shimkus. Thank you.
        I know we are trying to move forward, but I do want to ask
    Mr. Martin--and I appreciate--I really do appreciate you being
    here and the challenges, based upon current law, reading some
    of the descriptions, I am not sure how--I think it is a very
    tough job that you have. I would like, if you would then, to
    follow up with legislation to answer a question on whether the
    Ombudsman should be reauthorized. And if the answer is yes,
    what would be your suggestions of how it would change?
        Now being an Ombudsman and being part of the EPA, I don't
    know how you effectively do that without allowing the EPA's
    hand to get involved in the recommendation. I have I think a
    good sense that you want to, you know, continue a role for the
    Ombudsman, and I think you probably had some ideas of how we
    can improve it.
        And, Mr. Fields, I would respectfully ask that you allow
    him to submit those recommendations to us unedited so that we
    can look at the reauthorization and look at ways that we can
    improve it.
        Mr. Fields. I have no problem with that at all.
        [The following was received for the record:]

        The Hazardous Waste and Superfund Ombudsman Office should be
    reconstituted and reauthorized consistent with H.R. 3656 for a period
    of ten (10) years. Moreover, the legislation to reauthorize the Office
    of Ombudsman should include, at a minimum:

    * Re-establishment of the Office of Ombudsman;
    * Allocation of resources under the control of the Office and as
            defined by the Office, to implement the function;
     Authorization to perform duties consistent with the IRS Ombudsman
            function, already established by Congress.

        Mr. Shimkus. Based upon the terminology or the language,
    the Ombudsman shall not affect any procedures or grievances,
    appeals or administrative matters which comes out of the
    current law, and I didn't get a chance to ask about your
    involvement with small businesses and individual aspects. It
    seems like the overall issue and the overall fight--but I think
    there seems to be--we need to develop some more independence
    and we need I think to broaden the scope a little bit.
        Because a lot of us, we are Members, we are ombudsmen; and
    that is why we get so fired up about this. So I think there is
    a lot of sympathy for the battles that you have to fight, and I
    just appreciate you being here. It is usually not an enjoyable
    experience sometimes, but it is healthy as we move forward on
    legislation.
        So if you would provide that--Mr. Fields, if you would
    allow that to occur, I would appreciate that.
        With that, Mr. Chairman, I yield back my time.
        Mr. Oxley. The gentleman may respond very briefly.
        Mr. Fields. We will definitely adhere to the Congressman's
    request in terms of Mr. Martin's providing his suggestions to
    the subcommittees on the views on how the Ombudsman operation
    should operate.
        Mr. Oxley. Gentlemen, thank you for your testimony.
    Appreciate it.
        We will now turn over the Chair to the co-chairman, Mr.
    Bilirakis.
        Mr. Sawyer. Mr. Chairman, just before, let me say thank you
    for the opportunity to participate in this way and thank you to
    both of our witnesses for their responses.
        Mr. Oxley. Next session you may want to join the
    subcommittee.
        Mr. Bilirakis [presiding]. I would ask, as I move over to
    the main chair, that a representative of the administration
    stay in the room to hear the testimony, particularly in this
    case, of the citizens' panel. So, Mr. Fields, it would be great
    if you can stay, but if you can't, we understand. But
    hopefully, you will have someone here to take notes and all
    that. Because we are all working for the same people, that is
    the taxpayers; and we should all be greatly concerned.
        Mr. Fields. I agree. I, unfortunately, cannot. I have to go
    to a meeting with our Administrator. But I will assure you we
    will have staff here to be available.
        Thank you, Mr. Chairman.
        Mr. Bilirakis. Next panel, Mr. Bret Bowers, Executive
    Director of Community Leaders for EPA Accountability Now! from
    Coeur d'Alene, Idaho; Ms. Mary Mosley, former city commissioner
    and civic activist from Tarpon Springs, Florida; and Ms.
    Kimberly Boggiatto from Denver, Colorado.
        I would hope as we go into your testimony that you will
    complement or supplement your written statement in your 5
    minutes. Your entire written testimony, by the way, is part of
    the record.
        We do have legislation to reauthorize the Office of the
    Ombudsman which would provide specifics in terms of its
    functions and an increase in funding, and I would hope that we
    can get the support of all the members of the subcommittee.
        Having said all that, in view of the way you have lined up
    there, we will start off with Ms. Boggiatto. Please proceed,
    ma'am.

        STATEMENTS OF KIMBERLY BOGGIATTO; MARY MOSLEY; AND BRET
         BOWERS, EXECUTIVE DIRECTOR, COMMUNITY LEADERS FOR EPA
                          ACCOUNTABILITY NOW!

        Ms. Boggiatto. Good afternoon, Mr. Chairman and members of
    the subcommittees. I am extremely honored by your invitation to
    testify before you today with respect to the role of the EPA
    National Ombudsman in addressing concerns of local communities.
        I would also like to thank Congresswoman DeGette and her
    staff for her hospitality over the past couple of days.
        I today am representing Clean-It!, which is our local
    citizens' group that was formed for the sole purpose of
    advocating for the removal of the radioactive and toxic waste
    at the Shattuck Superfund site in south Denver. And
    Congresswoman DeGette's office was nice enough to provide us
    with the beautiful picture over there of our very own
    radioactive waste dump.
        Clean-It! stands for Citizens Loving Our Environment and
    Neighborhood--Invincible Together, and not only does it make a
    great acronym but I think it is pretty accurate as far as what
    we have been able to accomplish.
        The Shattuck site is contaminated by radioactive and toxic
    wastes from a decade of radium processing. The contamination
    found at the Shattuck site is not unique in Denver. There were
    approximately 10 other Superfund sites with similar
    contamination. What makes Shattuck unique is that it is the
    only one of these sites where the EPA decided that the
    appropriate remedy was onsite disposal. EPA decided for all of
    the other sites that removal of the radioactive soils should be
    to a licensed, low-level radioactive waste disposal facility
    and that that was the only remedy that was--both satisfied
    existing laws and regulation and was protective of human health
    and the environment. In fact, EPA originally determined that
    the wastes at the Shattuck site should also be removed and then
    went to public comment with that preferred alternative back in
    the early 1990's.
        However, after closing the public comment period, EPA
    decided, apparently, to reverse its decision and subsequently
    issued a decision that ordered the radioactive materials left
    on the site.
        The Ombudsman's investigation was critical in discovering
    sort of behind-closed-doors meetings that EPA Region 8 held
    with the owner of the site, and these meetings appeared to have
    factored into EPA's reversal of their original recommendation.
        In early 1999, the National Ombudsman Bob Martin and
    Investigator Hugh Kaufman came to Denver to listen to the
    citizens' concerns regarding Shattuck. Mr. Martin and Mr.
    Kaufman were the first EPA officials who actually listened.
    They treated the citizens with respect and with dignity, and
    that was in sharp contrast to how the citizens had been treated
    by Region 8 officials over the previous decade.
        Also, in the spring of 1999, EPA Assistant Administrator
    Timothy Fields began to look into EPA Region 8's management of
    the Shattuck site. Assistant Administrator Fields initiated a
    mediated stakeholder process that lasted roughly 6 months and
    included a thorough technical review of the existing remedy. I
    believe that the Ombudsman's investigation swayed EPA
    headquarters to focus attention and resources on Shattuck.
        The Ombudsman's investigation was essential in exposing
    improperly withheld documents, which I hear is a theme at many
    of these other sites, as well as concerns about the kinds of
    waste that might be disposed of at the Shattuck site. And we
    have heard some talk from Congresswoman DeGette today about the
    potential defense waste and other such things.
        In short, the Ombudsman's investigation of EPA Region 8's
    mismanagement of Shattuck was instrumental in the recent
    decision that Shattuck wastes must be removed from the site.
    The citizens knew that if an honest review were conducted the
    wastes would have to be removed. Bob Martin and his staff were
    the only EPA officials truly willing to look at the abuse of
    power by and gross incompetence of EPA Region 8 officials and
    staff. I believe that this abuse of power and incompetence not
    only extends up to Regional Administrator Bill Yellowtail but
    also emanates from him.
        My experience working with the Ombudsman's Office has
    bought to my attention some changes that would improve the
    operation of the office. The improvements essentially fall
    within two categories: resources and independence.
        It is clear from my experience that additional staff would
    be very useful for the Ombudsman's Office. This would allow for
    more thorough reviews and investigations as well as the ability
    to accept more cases. The office also needs a larger budget not
    only to fund the additional staff but also to hire experts and
    pay for independent laboratory analyses where appropriate.
        Perhaps even more important is the issue of independence.
    It is imperative that the Ombudsman has the final decision as
    to which cases are investigated and how the office's budget is
    allocated. It is my impression that EPA too often attempts to
    exert influence over the cases that are accepted for review and
    the extent to which a case is investigated by constraining the
    activities that will be funded. Imagine if EPA could determine
    these subcommittees budgets so as to dictate which oversight
    hearings could be held or which bills could be considered. Such
    a situation would clearly hinder your ability to oversee the
    EPA and result in an enormous disservice to the citizens of
    this Nation.
        Just this kind of disservice results when the Ombudsman's
    budget is manipulated so as to impede his investigations. The
    Ombudsman and his staff are uniquely prepared to review and
    investigate EPA's actions because of their extensive knowledge
    and applicable statutes and regulations as well as their broad
    technical and scientific knowledge. Because the Ombudsman's
    Office accepts cases at the request of elected officials, it
    functions to support and enhance your ability to scrutinize the
    actions and decisions of the EPA.
        Mr. Bilirakis. Please summarize, if you could, Ms.
    Boggiatto.
        Ms. Boggiatto. Certainly. I would just like to add, there
    are guidelines out there that have been discussed of those of
    the EPA as well as some guidelines that appear to be relevant
    that were published in 1990 in the Federal Register on the role
    of the Ombudsman within Federal agencies that uphold the
    independence and integrity of this office. I do not believe
    that EPA administration is the appropriate place for the
    guidelines to be developed and that that would serve generally
    to diminish independence and compromise the integrity of the
    Ombudsman's Office.
        Essentially, the argument for a strong EPA Ombudsman comes
    down to simple human nature: The best incentive for being
    honest is knowing you would be caught if you weren't. That is
    how I see the role of the Ombudsman, essentially, is that the
    further resources you give the Ombudsman's Office the more the
    EPA will realize that they have to make good decisions and they
    have to be accountable to the people. Because if they are not,
    we have an active and aggressive Ombudsman's Office who will
    expose the injustices, and I think that will serve to really
    reform the Agency and stop many of the situations we all have
    experienced.
        [The prepared statement of Kimberly Boggiatto follows:]

                    PREPARED STATEMENT OF KIMBERLY BOGGIATTO

        Good morning Mr. Chairmen and members of the subcommittees. I am
    extremely honored by your invitation to testify before you today with
    respect to the role of the Environmental Protection Agency (EPA)
    National Ombudsman in addressing concerns of local communities. My name
    is Kimberly Boggiatto and I am representing Clean-It! Clean-It! stands
    for Citizens loving our environment and neighborhood--Invincible
    together! We are a local citizens' group that formed to advocate for
    the removal of the radioactive and toxic waste from the Shattuck
    Superfund site in south Denver.
        The Shattuck site is contaminated by radioactive and toxic wastes
    from decades of radium processing. The contamination found at the
    Shattuck site is not unique in Denver; there were approximately ten
    other superfund sites with similar contamination. What makes Shattuck
    unique is that it is the only one of these sites where the EPA decided
    that the appropriate remedy was onsite disposal. EPA decided for all of
    the other sites that removal of the radioactive soils to a licensed,
    low-level radioactive waste disposal facility was the only remedy that
    both satisfied existing laws and regulations and was protective of
    human health and the environment. In fact, EPA originally determined
    that the wastes should be removed from the Shattuck site as well.
    However, after closing the public comment period in which strong
    support for removal was expressed, EPA issued a decision that ordered
    the radioactive soil disposed of on site. The Ombudsman's investigation
    was critical in discovering the ``behind closed doors'' meetings that
    EPA Region VII held with the owner of the site which appear to have
    factored into EPA's final decision to bury radioactive waste only a
    block from residences, within the densely populated City of Denver.
        In early 1999, the National Ombudsman, Bob Martin, and Investigator
    Hugh Kaufman, came to Denver to listen to the citizens' concerns
    regarding Shattuck. Mr. Martin and Mr. Kaufman were the first EPA
    officials who actually listened to the concerns of our community. They
    treated the citizens with respect and dignity, in contrast to the
    numerous EPA Region VIII officials and staff over the previous decade.
    Also in the spring of 1999, EPA Assistant Administrator for the Office
    of Solid Waste and Emergency Response (OSWER), Timothy Fields, began to
    look into EPA Region VIII's management of the Shattuck site. Assistant
    Administrator Fields initiated a mediated stakeholder process that
    lasted roughly six months and included a technical review of the
    existing remedy. I believe that the Ombudsman's investigation swayed
    EPA Headquarters to focus attention and resources on Shattuck.
        The Ombudsman's investigation was essential in exposing improperly
    withheld documents as well as concerns about the kinds of waste that
    might be disposed of at the Shattuck site. In short, the Ombudsman's
    investigation of EPA Region VIII's mismanagement of Shattuck was
    instrumental in the recent decision that the Shattuck wastes must be
    removed from the site. The citizens knew that if an honest review were
    conducted, the wastes would have to be removed. Bob Martin and his
    staff were the only EPA officials truly willing to look at the abuse of
    power by and gross incompetence of EPA Region VIII officials and staff.
    I believe that this abuse of power and incompetence not only extends up
    to Regional Administrator Bill Yellowtail, but also emanates from him.
        My experience working with the Ombudsman's Office has brought to my
    attention some changes that would improve the operation of the Office.
    The improvements essentially fall into two categories: resources and
    independence.
        It was clear from my experience that the Ombudsman's Office would
    be well served by additional investigators. Additional staff would
    allow for more thorough reviews and investigations as well as the
    ability to accept more cases. The Office also needs a larger budget not
    only to fund the additional staff, but also to hire experts and pay for
    independent laboratory analyses as appropriate.
        Perhaps even more important is the issue of independence. It is
    imperative that the Ombudsman has the final decision as to which cases
    are investigated and how the Office's budget is allocated. It is my
    impression that EPA too often attempts to exert influence over the
    cases that are accepted for review and the extent to which a case is
    investigated by constraining the activities that will be funded.
    Imagine if EPA could determine the subcommittees' budgets so as to
    dictate which oversight hearings could be held or which bills could be
    considered. Such a situation would clearly hinder your ability to
    oversee the EPA and result in an enormous disservice to the citizens of
    this nation.
        Just this kind of disservice results when the Ombudsman's budget is
    manipulated so as to impede his investigations. The Ombudsman and his
    staff are uniquely prepared to review and investigate EPA's actions
    because of their extensive knowledge of the applicable statutes and
    regulations as well as their broad technical and scientific knowledge.
    Because the Ombudsman's Office accepts cases at the request of elected
    officials, it functions to support and enhance your ability to
    scrutinize the actions and decisions of the EPA.
        Fortunately, there are guidelines that describe the proper role and
    operation of the Ombudsman. The American Bar Association has
    established guidelines that appear to be well suited to the EPA
    National Ombudsman. These guidelines would provide for the independence
    and integrity necessary for a constructive Ombudsman's Office. Also, in
    1990 recommendations regarding the role of Ombudsmen within federal
    agencies were published in the Federal Register. These guidelines also
    appear to uphold the independence and integrity of the Ombudsman. Given
    that independent and appropriate guidelines already exist, EPA should
    not attempt to create its own set of guidelines for the operation of
    the Ombudsman's Office. Internal guidelines would inevitably diminish
    independence and compromise the integrity of the Ombudsman when just
    the opposite result is needed.
        The argument for a strong EPA Ombudsman comes down to simple human
    nature: The best incentive for being honest, is knowing you would be
    caught if you weren't. This tenet conveys the vital role that the
    Ombudsman's Office plays within EPA. In order to continue in that role,
    the Ombudsman's Office needs support from Congress both in terms of a
    secure source of funding and a clear statutory mandate of independence.
        Thank you again for the opportunity to testify before you today. I
    am happy to answer any questions that you may have.

        Mr. Bilirakis. Thank you very much. Very well put.
        Ms. Mosley, you are on. Please pull the microphone forward.
    We want to be able to hear.

                        STATEMENT OF MARY MOSLEY

        Ms. Mosley. I want to thank the distinguished members of
    the two subcommittees for the opportunity to speak regarding
    the role of the Ombudsman's Office.
        I have been involved in the Stauffer Superfund site in
    Tarpon Springs, Florida, for nearly 25 years. During that time,
    I learned that Environmental Protection Agency Region 4 is an
    agency out of control and conducts their duties as though their
    allegiance is to the polluter rather than to the Superfund
    communities they are mandated to protect. The needs of our
    community have not been met; and, fortunately for us,
    Congressman Mike Bilirakis and Robert Martin have been holding
    hearings since last December asking questions that the EPA has
    not wanted to answer.
        The EPA has withheld information from our community and is
    very polished at misrepresenting the truth, a fact which I am
    delighted to see has not escaped this panel. At one hearing, in
    response to Congressman Bilirakis's polite request to remain
    more than 10 minutes to answer the community's questions, EPA
    adamantly refused and flounced out of the meeting. The
    community was outraged that the EPA would treat an elected
    official acting on our behalf in such a manner.
        The EPA chose a monolith as a remedy for our Superfund site
    which would cover 25 to 35 acres without having first conducted
    sufficient testing to determine if the site could ever support
    a mound of such magnitude. The site, which contains wastes such
    as asbestos, arsenic, radium 226 and more, already has
    sinkholes, is surrounded by sinkholes and is, coincidentally,
    located directly above two aquifers, one of which serves as the
    main drinking water source for a large portion of the State.
    Should the proposed monolith fail, it would be disastrous to
    important water supplies.
        I might add there have been experts that have attended
    meetings that said that the monolith will not be successful,
    that the sinkholes have already opened communication between
    the two aquifers.
        Robert Martin and his chief investigator Hugh Kaufman
    exposed the flaws of the monolith at Shattuck in Denver. After
    the investigation by the Ombudsman's Office, the EPA reversed
    itself and admitted that the only way to ensure the public
    health and welfare was for Shattuck's wastes to be hauled to a
    repository.
        The elected officials of Tarpon Springs also feel that the
    removal of waste is the only safe solution for our community,
    but the wastes at our Superfund site are so toxic that they
    would have to be treated before a nuclear dump would accept it.
        In conclusion, the EPA has worked for 6 years with
    insufficient investigations. They now admit to having data
    gaps. The EPA has neglected, to date, to adequately define the
    magnitude and extent of groundwater contamination originating
    from the site. Despite having a poor record of scientific
    approach, the EPA continues to decrease the number of
    contaminants of concern. There are other problems too numerous
    to mention in the brief time allotted today.
        To counter the failure of the EPA to responsibly administer
    the Superfund Act, the Ombudsman's Office must be well funded
    and independent of any attempts that might be made to silence
    the voice of truth. The Ombudsman's Office is one of the best
    examples of good and honest government. Please give them the
    support needed to continue doing their job well.
        Thank you.
        [The prepared statement of Mary Mosley follows:]
                       Prepared Statement of Mary Mosley
        I would like to thank the distinguished members of the Subcommittee
    on Health & Environment and the Subcommittee on Finance & Hazardous
    Materials for the opportunity to speak regarding the role of the
    Ombudsman's Office.
        I have been involved with the Stauffer Superfund Site in Tarpon
    Springs, Florida for nearly twenty five years. During that time, I
    learned that the Environmental Protection Agency (EPA) Region 04 is an
    agency out of control and conducts their duties as though their
    allegiance is to the polluter rather than to the Superfund communities
    they are mandated to protect. The needs of our community have not been
    met and fortunately for us, Congressman Mike Bilirakis and Robert
    Martin, EPA Ombudsman have been holding hearings since last December
    asking questions that the EPA has not wanted to answer.
        The EPA has withheld information from our community and is very
    polished at misrepresenting the truth. At one hearing, in response to
    Congressman Bilirakis' polite request to remain more than ten minutes
    to answer the community's questions, EPA adamantly refused and flaunted
    out of the meeting. The community was outraged that the EPA would treat
    an elected official acting on our behalf in such a manner.
        The EPA chose a monolith as a remedy for our Superfund Site which
    would cover twenty five to thirty five acres without having first
    conducted sufficient testing to determine if the Superfund Site could
    even support a mound of such magnitude. The Site which contains wastes
    such as asbestos, arsenic, radium 226 and more, already has sinkholes,
    is surrounded by sinkholes, and is coincidentally located directly
    above two aquifers--one of which serves as a main drinking water source
    for a large portion of the state. Should the proposed monolith fail, it
    would be disastrous to important water supplies.
        Robert Martin and his chief investigator Hugh Kaufman exposed the
    flaws of the monolith at Shattuck in Denver, Colorado. After the
    investigation by the Ombudsman's Office, the EPA reversed itself and
    admitted that the only way to ensure the public health and welfare was
    for Shattuck's wastes to be hauled to a repository.
        The elected officials of Tarpon Springs also feel that the removal
    of wastes is the only safe solution for our community, but the wastes
    at our Superfund Site is so toxic that it would have to be treated
    before a nuclear dump would accept it.
        In conclusion, the EPA has worked for six years with insufficient
    investigations which they now admit to having ``data gaps.'' The EPA
    has neglected, to date, to adequately define the magnitude and extent
    of groundwater contamination originating from the Site. Having a poor
    record of scientific approach, the EPA continues to decrease the number
    of Contaminants of Concern for the Site. There are other problems too
    numerous to mention in the brief time allotted today.
        To counter the failure of the EPA to responsibly administer the
    Superfund Act, the Ombudsman's Office must be well funded and
    independent of any attempts that might be made to silence the voice of
    truth. The Ombudsman's Office is one of the best examples of good and
    honest government. Please give them the support needed to continue
    doing their job well.
        Thank you.

        Mr. Bilirakis. Thank you, Mary.
        Mr. Bowers, you are on, sir.

                        STATEMENT OF BRET BOWERS

        Mr. Bowers. Thank you, sir. Thank you, Mr. Chairman. Good
    morning.
        My name is Bret Bowers. It has been nearly 30 years since I
    have been to Washington, DC. I used to live here as a young
    boy. I am proud to be back.
        I am a husband, and I am a father. I am a proud, third-
    generation Air Force veteran, and I love my country, and I love
    living in Coeur d'Alene, Idaho. However, the circumstances that
    have brought me here are very disturbing.
        I am here on behalf of C.L.E.A.N.--Community Leaders for
    EPA Accountability Now--based in Coeur d'Alene, Idaho. I am
    here to tell our story, to tell you what EPA has done in our
    community and how they have failed to take action on our
    concerns. Even more, I want to explain how important it has
    been to have an Ombudsman to whom we can appeal when no one
    else in the EPA would listen.
        C.L.E.A.N. was created in 1998 in response to the EPA's
    intention of declaring Lake Coeur d'Alene and our entire region
    a Superfund site. It doesn't sit well, knowing that National
    Geographic magazine has named our lake one of the five most
    beautiful lakes in the world, and today the Idaho Department of
    Environmental Quality calls lake Coeur d'Alene a world-class
    lake.
        C.L.E.A.N. organized with support of community and business
    leaders, the Chamber of Commerce, realtors, citizens and
    elected officials--including county commissioners, city
    councilmen, mayors and State legislators. We committed
    ourselves to understand the EPA's processes, recognizing the
    history that already exists with Superfund in neighboring
    Shoshone County, home of the Bunker Hill Superfund site and
    upstream of Lake Coeur d'Alene.
        The problem that has brought me to here today took 100
    years to create, 14 hours to explain during our Ombudsman
    hearing, and I have 5 minutes.
        EPA and the Department of Justice actions threaten not only
    our economic stability but also our environment and the way
    others around the region and the world look at our region.
        The EPA would like the Ombudsman and all of us to believe
    the Bunker Hill was never limited to the 21 square mile
    boundary the EPA helped create on the National Priorities List
    in 1983. After 17 years, $200 million has been spent in the
    box. The EPA now wants to start completely over and expand the
    site into a 1,500 square mile region, creating the Nation's
    largest Superfund site. Just when many of us thought the end
    was near, the EPA wants to start over by changing the rules.
        Therefore, any legislation to reauthorize the Ombudsman is
    good news to us. But, sir, we need more than an internal EPA
    investigation on this. We welcome the Federal Government's
    help, not its heavy hand.
        Until the Ombudsman hearing, our local elected leaders
    believed the only way they had their voices heard and concerns
    heard was to pay for the opportunity through friends of the
    court amicus briefs in litigation at the U.S. District and
    appellate court levels.
        We recognize the need for cleanup. So do the mines. They
    have offered $250 million to settle a lawsuit and begin
    cleanup.
        Many of us are working in cooperation with the State to
    finalize a plan that prioritizes cleanup and develops
    legislation for Federal funding that you will have the
    opportunity to vote on next year. But questions have been
    raised dealing with not just the environment, but human health.
        How can the EPA discount the scientific, site-specific
    evidence showing children living in the Bunker Hill site have a
    much lower accumulation of blood lead than EPA's national
    default models show? Why won't the EPA consider lead-based
    paint as a potential source of exposure when the majority of
    homes in the Silver Valley were built before the 1970's?
        Today, inside the Bunker Hill site, 94 percent of the
    children are within the EPA's remedial action goal. On average,
    communities inside the Bunker Hill site have been under the
    Centers for Disease Control's standard since 1990.
        On the environmental side, the discharge from the operating
    mines today account for less than 1 percent of the metal
    floating in the river system. But after $200 million have been
    spent in the box, we now know that EPA's central impoundment
    area has become the largest source of metals into the south
    fork of the Coeur d'Alene River.
        Why should EPA be allowed to mandate a water quality
    standard State and industry must meet but the EPA cannot
    achieve itself at the Bunker Hill site?
        Outside the box, science tells us the largest loader of
    lead into our watershed is the result of erosion from the river
    banks. So why did EPA stall and then reduce in size a
    stabilization project to the point there may not be any
    tangible results?
        We are concerned because the threat of basin-wide Superfund
    could have devastating economic ripples throughout the inland
    Northwest.
        Here are the facts for Shoshone County where hard-working
    families want to turn around the stigma Superfund has placed on
    them for the last 20 years. What used to be the world's largest
    lead, silver and zinc mining district with 90 operating mines
    is now down to just three; 7,500 miners are down to 800. In
    fact, it is the only county in Idaho with a population
    decrease, one of only four nationwide. Shoshone County has had
    the State's highest unemployment rate and highest child poverty
    rate and has seen its assessed value drop from $1.3 billion to
    less than $500 million.
        Those facts have caught the attention of all of us, trying
    to overcome the onslaught of environmental regulations that
    have but all shut down our region's natural resource
    industries.
        EPA believes they can expand the site even though Lake
    Coeur d'Alene meets Federal drinking water standards. EPA has
    studied and found our beaches are safe. We can swim and play in
    the lake all we want, and the Centers for Disease Control's
    ATSDR has determined our fish in the lake and in the river and
    the lateral lakes and the flood plain are safe to eat.
        So why do Federal plans for cleanup call for dredging our
    river and the lake with a $3.8 billion price tag that will
    bankrupt not only businesses and communities but it will ruin
    water quality for decades to come? Why should the EPA be
    allowed to characterize our beautiful region in a negative
    light as they have done repeatedly in national publications?
        The Ombudsman investigation put a spotlight on EPA's
    position onsite boundaries. EPA's view gives them an open-ended
    time line at further expense to our communities, our private
    property rights and our environment.
        So it all boils down to trust. How can we trust the EPA
    when in 1991 Region 10 Administrator Dana Rasmussen wrote to
    Congressman Larry Larocco with, quote, let me state
    unequivocally, it is not EPA's intention to expand the
    boundaries of the site. We recognize that there are many other
    regulatory tools besides Superfund legislation to affect
    environmental improvements.
        Yet, now we're facing major expansion.
        Mr. Chairman, I will summarize in closing.
        How can we trust the Department of Justice when they are
    the driving force behind the lawsuit and tried to prevent the
    Ombudsman from taking part in our recent hearing? We shouldn't
    be forced to spend the next 30 years paying off a debt our
    Federal Government helped create by sending troops to help mine
    metals during the world wars.
        I ask you to ensure the National EPA Ombudsman's Office is
    reauthorized and that you pass new legislation that seeks to
    secure Federal funding for basin cleanup in our region, prevent
    further delays in remediation and restore citizens' faith in
    government. After all, had the Ombudsman's Office not been
    called in or if C.L.E.A.N. hadn't formed, do you think any of
    the concerns or questions raised here today by not only me but
    these other two ladies here would have been brought to
    anybody's attention?
        Thank you very much.
        [The prepared statement of Bret Bowers follows:]

         PREPARED STATEMENT OF BRET BOWERS, COMMUNITY LEADERS FOR EPA
                              ACCOUNTABILITY NOW,

        Good morning, my name is Bret Bowers. It's been nearly 30-years
    since I lived in Washington D.C. I've returned, as a proud, 3rd-
    generation Air Force veteran, a husband and a father . . . who loves my
    family and these great United States.
        However, the circumstances that have brought me here are very
    disturbing. I am here on behalf of C.L.E.A.N., Community Leaders for
    EPA Accountability now based in Coeur d'Alene, idaho.
        I'm here to tell our story . . . to tell you what EPA has done in
    our community and how they've failed to take action on our concerns.
        Even more, I want to explain how important is has been to have the
    Ombudsman to whom we can appeal to . . . when no one else in the EPA
    will listen.
        CLEAN was created in 1998 . . . in response to the EPA's intention
    of declaring Lake Coeur d'Alene and our entire region a Superfund site.
    It does not sit well . . . knowing that National Geographic magazine
    has named our lake one of the five most beautiful lakes in the world.
    Today, the Idaho Department of Environmental Quality calls Lake Coeur
    d'Alene . . . a world class lake.
        C.L.E.A.N. organized . . . with support of community and business
    leaders, the Chamber of Commerce, realtors, citizens and elected
    officials--including, county commissioners, city councilmen, mayors,
    and State legislators.
        We committed ourselves to understand the EPA's process . . .
    recognizing the history that already exists with superfund in
    neighboring Shoshone County . . . home of the Bunker Hill Superfund
    site and upstream of Lake Coeur d'Alene.
        The problem that has brought us to this point . . . took 100-years
    to create . . . 14-hours to explain during our recent Ombudsman hearing
    . . . and a problem I must describe in 5-minutes.
        EPA and Dept. of Justice actions threaten not only our economic
    stability, but also our environment . . . and the way others around the
    country and the world look at our region.
        The EPA would like the ombudsman and all of us to believe the
    Bunker Hill site was never limited to the 21-sq. mile boundary they
    helped establish on the national priorities list in 1983.
        After 17-years at the site, $200-million dollars have been spent.
    The EPA now wants to start completely over, and expand the 21.sq-mile
    ``box'' into a 1500-sq. mile region . . . creating the nation's largest
    Superfund site. Just when many thought the end was near, the EPA is
    changing the rules.
        Therefore, any legislation to reauthorize the Ombudsman is good
    news to us. But . . . we need more than an internal EPA investigation.
    We welcome the Federal Government's help . . . not its heavy hand.
        Until the Ombudsman hearing, our local elected leaders believe the
    only way they had their concerns heard, was to pay for the opportunity
    . . . through ``friends of the court'' briefs in litigation at the U.S.
    District and Appellate Court levels.
        We recognize the need for clean-up. So do the mines . . . they've
    offered $250-million to settle the lawsuit and begin clean-up.
        Many of us are working in cooperation with the State of Idaho to
    finalize a plan that prioritizes clean-up . . . and develops
    legislation for Federal funding that you will have the opportunity to
    vote on next year.
        But questions have been raised dealing with not just the
    environment, but human health also.
        How can the EPA discount the site specific evidence showing
    children living in the Bunker Hill site have a much lower accumulation
    of blood-lead than EPA's national default models show?
        Why won't the EPA consider lead-based paint as a potential source
    of exposure when the majority of homes in the Silver Valley, were built
    before the 1970's?
        Today, inside the Bunker Hill Superfund ``box'' . . . 94% of the
    children are within the EPA's remedial action goal. On average,
    communities inside the Superfund site have been under the Centers for
    Disease Control's standard since 1990.
        On the environmental side today . . . the discharge from the
    operating mines accounts for less than one-percent of the metals
    loading in the river system. But, after $200-million dollars have been
    spent in the box . . . we now know the EPA's central impoundment area
    has become the largest source of metals into the south fork of the
    river.
        Why should EPA be allowed to mandate a water quality standard State
    and industry must meet, but the EPA cannot achieve itself . . . at the
    Bunker Hill site?
        Outside the box . . . science tells us the largest loader of lead
    into our watershed . . . is the result of erosion from the river banks.
    So why did EPA stall and then reduce in size a stabilization project to
    the point . . . there may not be any tangible results?
        We are concerned because the threat of basin-wide Superfund could
    have devastating economic ripples throughout the inland northwest.
        Here are the facts for Shoshone County . . . where hard working
    families want to turn around the stigma Superfund has had on them.
        What used to be the world's largest lead, silver and zinc mining
    district with 90 operating mines . . . is now down to just three in
    full-time production. 7500-miners are down to 800. In fact, it's the
    only county in Idaho with a population decrease, one of only four
    nationwide.
        Shoshone County has had the State's highest unemployment rate and
    highest child-poverty rate. And it has seen its assessed value drop
    from $1.3-billion to less than $500-million dollars.
        Those facts have caught the attention of all of us . . . trying to
    overcome the onslaught of environmental regulations that have all but
    shut down our region's natural resource industries.
        EPA believes they can expand the site . . . even though Lake Coeur
    d'Alene meets Federal drinking water standards. EPA has studied and
    found our beaches are safe. We can swim and play in the lake all we
    want . . . and the Centers for Disease Control's A-T-S-D-R has
    determined our fish in the lake and the river are safe to eat.
        So why do Federal plans for clean-up call for dredging our river
    and the lake . . . with a $3.8-billion dollar price-tag that will
    bankrupt businesses and communities and ruin water quality for decades
    to come?
        Why should the EPA be allowed to characterize our beautiful region
    in a negative light as they have done in national publications?
        The Ombudsman investigation put a spotlight on EPA's position on
    site boundaries. EPA's view gives them an open-ended timeline at
    further expense to our communities, our private property rights and our
    environment.
        And so it all boils down to trust. How can we trust the EPA . . .
    when in 1991, Region-10 Administrator Dana Rasmussen wrote to
    Congressman Larocco with, ``Let me state unequivocally, it is not EPA's
    intention to expand the boundaries of the site. We recognize that there
    are many other regulatory tools besides superfund legislation to affect
    environmental improvements.'' Yet, now we're facing major expansion?
        How can we trust the Department of Justice when they are the
    driving force behind the lawsuit, and tried to prevent the Ombudsman
    from taking part in our recent hearing?
        In closing, we shouldn't be forced to spend the next 30-years
    paying off a debt our Federal Government helped create . . . by sending
    troops to help mine metals during the world wars.
        I ask you to ensure the national EPA Ombudsman's Office is
    reauthorized. and, that you pass new legislation that seeks to secure
    Federal funding for basin clean-up, prevent further delays in
    remediation and restore citizen's faith in government.
        After all, had the Ombudsman not been called in, or if CLEAN hadn't
    formed . . . do you think any of the concerns and questions raised
    today would have been brought to your attention?

        Mr. Bilirakis. Thank you, Mr. Bowers.
        I am going to recognize myself.
        I know that Ms. Mosley, for instance, has been a very
    active environmentalist in our area for a long, long time, very
    much concerned about the environment, very consumer oriented. I
    would wager to say that Ms. Boggiatto and Mr. Bowers have been
    in the same category. So the thing that has really amazed me
    about all of this is the fact that it is the people who are so
    very pro-environment who appear to have lost confidence in the
    credibility of the Environmental Protection Agency.
        Now, any comments regarding that, Ms. Boggiatto?
        Ms. Boggiatto. Yes, thank you.
        Actually, when I first moved----
        Mr. Bilirakis. Short comments, I only have 5 minutes.
        Ms. Boggiatto. Sure. I have lost some confidence. I used to
    have a lot of faith in the Environmental Protection Agency to
    always use the best available science and data, and after the
    involvement with the Shattuck site I realized that that is not
    always the case, which is unfortunate.
        Mr. Bilirakis. Yes, it is really unfortunate, isn't it? You
    start to lose faith in your government, so to speak.
        Ms. Mosley.
        Ms. Mosley. Congressman Bilirakis, before Mr. Martin's
    office was contacted, we tried to contact, many of us in the
    community, the Region 4 Ombudsman's Office; and, to my
    knowledge, none of our calls were returned. At least I can
    speak for myself, none were returned.
        Thank you, sir.
        Mr. Bilirakis. And that is significant because there are
    regional Ombudsmen, so to speak. Mr. Fields referred to them,
    with the idea of basically trying to convince us that it is
    really not just one Ombudsman but a number of them spread
    around the country. And what you are saying is that, for the
    longest time, they still didn't return your calls. I know your
    persistence and your perseverance, and I think that also speaks
    for many of the people in the group down there who have shown
    their concern in this regard.
        Ms. Mosley. That is right.
        Mr. Bilirakis. EPA is in the room, and I hope they are
    picking all that up.
        Mr. Bowers.
        Mr. Bowers. Mr. Bilirakis, what I also would like to say is
    simply that, to give you an idea, just during the RIFS
    litigation, litigation for a lawsuit that is going to go to
    trial in January, and during the RIFS that we have been
    involved with over the Coeur d'Alene Basin, just in the last
    2\1/2\ years EPA has spent roughly a million dollars a month on
    litigation and studies instead of cleanup. That should really
    summarize, hopefully, to you and to all the folks here on
    Capitol Hill that if they are so concerned about the
    environment then why are they spending more money fighting
    through litigation rather than helping the communities that
    know that some cleanup still may need to be done regardless of
    how it got there or who is responsible?
        Mr. Bilirakis. I know Ms. Chenoweth-Hage will go into this,
    but when did the EPA's involvement in Coeur d'Alene start?
        Mr. Bowers. Well, the EPA started in 1983 with the Bunker
    Hill Superfund site. It was declared as the box on the NPL, as
    my testimony indicated, and now they want to start completely
    over and start from square one. And our communities, especially
    the communities surrounding the Bunker Hill site in particular,
    have had it; and they are literally at breaking point in terms
    of emotional stress over this issue and what lies ahead in
    terms of the next potentially 30 years.
        Mr. Bilirakis. Are there EPA personnel located in the area
    that have been there for some time?
        Mr. Bowers. Yes, there are.
        Mr. Bilirakis. I have always been wanting to get that clear
    in my mind. Go ahead. Why don't you explain that?
        Mr. Bowers. I am not sure exactly how long the personnel
    that have been there have been there. I know that, to give you
    an idea of the questionable judgment on their call by the EPA
    staff in our region serving at the Bunker Hill site, they have
    gone to great lengths not only in national publications to
    disparage our community with some of their negative comments,
    but they are actually handing out propaganda from extreme
    environmental groups critical of the natural resource
    industries. The EPA has been handing out that documentation.
        Mr. Bilirakis. The EPA has been handing that out?
        Mr. Bowers. That is correct.
        Mr. Bilirakis. And you know that for a fact?
        Mr. Bowers. Handed it right to me on a tour.
        Mr. Bilirakis. EPA personnel?
        Mr. Bowers. That is right.
        Mr. Bilirakis. And are they located there?
        For instance, in our site down in Tarpon Springs, Florida,
    we don't have any EPA people that are actually located right in
    the site area. Do you have EPA people that are located right in
    the area and working on this effort?
        Mr. Bowers. I am not sure of how many of the ones that
    routinely work on our site at Bunker Hill live in the area.
        I know that one, the gentleman I am referring to is Earl
    Liverman, he lives in Coeur d'Alene and commutes back and
    forth, which is about 40 miles upstream. But we can get folks
    flying over from Seattle Region 10 headquarters on a regular
    basis at the drop of a dime for the environmental groups to
    come over and help explain such things as the RIFS or whatever
    they want to come over and talk about. They will drop a dime
    and fly right over, but yet they are not necessarily responsive
    to our needs about the concerns we have for our environment.
        Mr. Bilirakis. The expenditures have been approximately a
    million dollars a month and this goes back to the early 1980's?
        Mr. Bowers. No, no, sir. The million dollar a month figure
    that I gave you is just during the course of the RFIs which
    began late 1997.
        Mr. Bilirakis. I see.
        Well, my time is up. Gentlelady from Colorado.
        Ms. DeGette. Thank you, Mr. Chairman.
        Ms. Boggiatto, you were in the room when you heard Mr.
    Fields testify that the recent disclosures by the Department of
    Energy about sites that were involved in processing radioactive
    and toxic materials should not change the timetable for
    cleanup. Do you think that that will give some reassurance to
    the neighbors who are concerned that this will be further
    delayed?
        Ms. Boggiatto. The fact that Mr. Fields said it wouldn't
    be?
        Ms. DeGette. Right.
        Ms. Boggiatto. No.
        Ms. DeGette. Why not?
        Ms. Boggiatto. I am sure Mr. Fields has the best
    intentions, as he has been quite good in our community, coming
    out to talk with us and such. But the fact that EPA doesn't
    intend for something to delay their actions doesn't necessarily
    correlate to actual delays, in my experience; and I hope that
    it does not. But the citizens do want a full characterization
    of what is actually at that site; and, as I understand it, for
    the trainloads or the truckloads to move off the site they will
    have to know what exactly is in it so they will know what kind
    of facility is licensed. So I hope that can be done as quickly
    as possible. These sort of fears from the Ombudsman's Office
    about what kinds of things could be there have been coming up
    now for at least a year, and I would certainly like to see an
    aggressive investigation so that it wouldn't----
        Ms. DeGette. Why it is important for the neighbors to have
    a cleanup schedule that has some certainty and also some
    efficiency, if you will?
        Ms. Boggiatto. Well, we would like to see the waste dump
    gone. I mean, after all, no one needs to see that every day in
    your neighborhood; and it would be very nice to have that over
    with. There is still a lot of effort on the community's part,
    working with EPA and businesses around the area, on how all
    this will happen and how the waste is being characterized, if
    it is the same as the other sites. There are still some
    controversies that are sort of ensuing that take a lot of
    people's emotional energy as well as physical time, and we
    would all like I think for a nice, clean site and to see a
    developed site in this area.
        Ms. DeGette. People have been concerned about what is on
    the site and whether it is leaking, whether the
    characterization was correct, for 8 or 9 years now, right?
        Ms. Boggiatto. Oh, absolutely. In fact, they were told back
    in the early 1990's that the waste would be removed and that it
    was dangerous and that was what was necessary. They have been
    concerned for at lest a decade, and we would like to see this
    gone, both for the potential health effect as well as the
    environmental effects that that site would have as well.
        Ms. DeGette. Thank you.
        Mr. Bowers, just to clarify, it looks to me, in reviewing
    your testimony and also your vitae, that C.L.E.A.N. is
    basically a group that is put together by businesses and the
    Chamber of Commerce to make sure that their interests are being
    represented. Would that be a fair assessment?
        Mr. Bowers. Not only businesses and the Chamber of
    Commerce, ma'am, but certainly it includes our elected
    officials at the city and county and State representative
    level.
        Ms. DeGette. Okay. But now you are actually on the payroll
    of the Chamber of Commerce and then C.L.E.A.N. is pretty much
    an arm of the Chamber of Commerce, would that be correct?
        Mr. Bowers. That is correct.
        Ms. DeGette. Thank you, Mr. Chairman. I don't have any
    further questions and yield back the balance of my time.
        Mr. Bilirakis. The gentleman from Illinois.
        Mr. Shimkus. Thank you, Mr. Chairman; and I appreciate
    those testifying here today.
        Ms. Mosley, you were here when Mr. Fields was testifying
    and obviously you followed a lot of the questions and the
    Ombudsman reports to his deputy. Do you believe people in the
    local community understand that the Ombudsman is just another
    EPA employee?
        Ms. Mosley. Oh, I think they, the average person, thinks
    that he is an EPA employee, but he certainly is not average.
        Mr. Shimkus. And following the discussions we had and using
    the terminology of the law, the Ombudsman was supposed to have
    access to the highest officials in the EPA. Do you think that
    is--based upon your observation of the testimony earlier today,
    do you think that occurs?
        Ms. Mosley. Absolutely not.
        Mr. Shimkus. Ms. Boggiatto, do you think that actually
    occurs, same question, based upon--I know you are a little
    bit--you are a little bit different because you had, if I am
    correct, a lot of frustration over many, many years, like many
    of us do, but you have actually seen some positive aspects and
    then now might be a change back as we look at--so the same
    question, do you think that the Ombudsman--the application of
    the statute and the authorization says he has access to the
    officials in the EPA. Do you think that is true?
        Ms. Boggiatto. I think he has access to Mr. Fields, and he
    is one of the highest officials. Access is one thing. Actually
    being sort of listened to and respect and supported well is
    another.
        Mr. Shimkus. Thank you.
        Mr. Bower, same kind of question.
        Mr. Bowers. Sir, could you repeat the question for me?
        Mr. Shimkus. Well, the basic tenet of the authorization
    legislation says that the Ombudsman should have access to the
    highest officials in the EPA. Do you think that that occurs?
        Mr. Bowers. Well, he might have access to the highest
    officials within the EPA, but I am afraid that, despite the
    efforts of that we have already seen in our communities with
    the Ombudsman and certainly with the tape that I have brought
    here today--and I hope I get a chance to show that or at least
    enter it into the record--I can certainly say for a fact that I
    am not so sure EPA Region 10, let alone headquarters right here
    in our Nation's capital, really does care about any of the
    findings that the Ombudsman's Office has.
        Mr. Shimkus. And let me just follow up, again, you observed
    the discourse we had on small business liability relief and the
    trouble we have getting language from the EPA. Ms. Boggiatto,
    it reminded me of a comment you made that here we had promises
    in the 1990's that the waste would be removed; and then based
    upon those promises--those promises not being fulfilled or at
    least uncertainty is pervasive. Those are kind of reaffirmation
    of the kind of frustrations we have with EPA and frustration
    and inability to get some clear guidance and affirmation of
    what is going to occur in the future and how we can move.
        Tell me how that affects--and I think my colleague Diana
    DeGette mentioned this--how does this affect the community when
    there is uncertainty and, really, your association and
    organization----
        Ms. Boggiatto. Well, as we all know, when you live next to
    a toxic or radioactive waste dump, you live--and I don't live
    right next to this site, but many of the citizens I work with
    do live within sight of it--that is emotionally stressful, to
    say the least, because you are in fear for your health and your
    children's health and the rest of your family's health; and I
    think that toll is a huge burden.
        It also--the fact that in 1992 or so the citizens were told
    by EPA that the preferred alternative was removal and that they
    then changed, reversed course without going back to public
    comment on that and then said, ``Tough luck, watch us bury it''
    there is--it is hard to--it is sort of hard to regain the faith
    in the administrative agency after that.
        In fact, when I first moved to Denver, I did not get
    involved in this site because I was convinced the citizens had
    it wrong, that EPA could not have done what they were alleging,
    and waited a couple of years until 1998 to finally get
    involved, when I realized, you know, that I think there is
    something here.
        Mr. Shimkus. Exactly the same experience I felt with the
    issue. The EPA comes in and says, ``Tough luck, you settle or
    you get sued.'' That is just a bad way of doing business.
        I would end with this, Mr. Chairman, and ask for our
    panelists here also to--if they could, in their reviewing of
    the process, what recommendations would you provide for us if
    we look at reauthorizing the Ombudsman--what more tools does he
    need? I mean, you are on the front lines. You are trying to
    deal with issues. How do we empower him to get the word to the
    highest officials in the Agency and not only get heard but have
    a receptive ear?
        Mr. Bilirakis. Might I recommend a very, significant
    question? Might I recommend that they ought to give some
    thought to it based on their experiences, and hopefully they
    can furnish that to us in writing, John.
        Mr. Shimkus. That is what I would request, Mr. Chairman.
        Mr. Bilirakis. That is, I think, a very good idea. Would
    you be willing to do that? There will be additional questions
    that will be furnished to you. I don't know how we are on
    reauthorization because of what is happening up here, with only
    a few days to go and that sort of thing, but it may be on a
    fast track. Hopefully, it is. So the sooner you provide us your
    suggestions, and recommendations in response to Mr. Shimkus'
    question on the Ombudsman areas you feel ought to be changed or
    improved, the better.
        I didn't mean to cut you off.
        [The following was received for the record:]

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        Mr. Shimkus. I have finished with my questions. I
    appreciate you taking the time to visit with us.
        I yield back my time.
        Mr. Bilirakis. The gentlelady from Idaho, Mrs. Chenoweth-
    Hage.
        Mrs. Chenoweth-Hage. Thank you, Mr. Chairman.
        Mr. Chairman, before I begin my questioning, I have a
    matter here. It is entitled, The Investigative Report
    Concerning Abuse of Federal Law and the Citizens of North Idaho
    by the EPA. It is an investigative congressional investigative
    report that I put together. It is in its draft final stage; and
    I would, without objection, like to enter the final report into
    the record.
        It points out 18 different areas that this Ombudsman, who
    has an average of $35,000 a case, he is looking into 18
    different issues. He looks into everything I want to him to,
    just in this one site. It is so massive.
        Mr. Chairman, I remember a long time ago a judge said to me
    during a hearing, you never want to open a door in a line of
    questioning that you are not prepared to walk through as well
    as everybody else, let everybody else in. Well, that happened
    up in the hearing. That was a 14-hour hearing conducted by our
    Ombudsman, and that has been captured on film. I have referred
    to it, as has Mr. Bowers; and I wonder if, without objection,
    if we might be able to show that 3\1/2\ minute film of the
    questioning by the Ombudsman of an EPA attorney.
        So I would yield back the balance of my time if, without
    objection, we can do that, Mr. Chairman.
        Mr. Bilirakis. How long will that take?
        Mr. Bowers. Three and a half minutes.
        Mr. Bilirakis. Three and a half minutes. Let us do it, if
    there is no objection.
        Ms. DeGette. Mr. Chairman, if I can just--reserving my
    right to object. I am not going to object. Let me just say that
    we didn't learn about the videotape until this morning. It
    wasn't submitted as part of the prepared testimony of Mr.
    Bowers. But, having said that, I am always a proponent of
    sunshine.
        Let me just add that the issue of the boundaries of the
    Bunker Hill site is moot, because the Court of Appeals
    overturned the challenge and no one challenged it in the
    District of Columbia. So the issues in the Asarco case, which
    is scheduled to start on January 22 of next year, are the
    liability and natural resources damage issues, and that is
    going to be happening in the District Court of Idaho.
        So I would ask that a summary of the scope of the facility
    and the actual transcript sections where this issue was
    discussed at the Ombudsman hearing on August 19 of this year be
    inserted into the record to supplement the videotape so that we
    can have the full discussion rather than an edited portion. I
    think it is irregular to have edited portions of field hearings
    shown in hearings, but I won't object to it so long as the
    record----
        Mr. Bilirakis. Without objection, that will be the case.
    Thank you very much for your consideration.
        [The information referred to follows:]

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        [Video played.]
        Mr. Bowers. That is the end of the video.
        Mrs. Chenoweth-Hage. Mr. Chairman, I see my time is up.
        Mr. Bilirakis. I thank the gentlelady.
        Well, I think our time is up, and we will excuse the panel.
        I will just say Ms. DeGette is the only one of the members
    of the subcommittee left, but if she could have experienced--
    and she probably has, maybe even more so at Shattuck--what we
    have been going through down there regarding the premature
    decision-making without full and adequate research, I think we
    would all be pretty shocked and aghast at the overall picture.
        Ms. DeGette. If the gentleman would yield, that was the
    part of the problem that we saw in Shattuck, was apparently in
    the late 1980's, early 1990's, under the Reagan/Bush, or at
    least the Bush administration, EPA, the initial record of
    decision was apparently made in back rooms between the Region 8
    EPA administrator, Shattuck and heavens knows who else.
        So, you know, one of the great things that we have really
    cherished in Denver is the community activists who just
    wouldn't take no for an answer ever and also the active
    involvement of the Ombudsman who really helped all of us who
    were working on it. So thank you for your leadership on this,
    and good luck to all your folks in Florida.
        Mr. Bilirakis. And good luck to all your folks in Denver,
    and hopefully we can work together when it comes to
    reauthorization.
        Mrs. Chenoweth-Hage. Mr. Chairman, before you bring the
    gavel down, I would just have one point that I would like to
    clarify that was brought up. That is the Asarco suit. That case
    was almost remanded--almost all of it was remanded back. So
    there are many, many other issues involved in the Superfund
    site in northern Idaho, and it will be in ongoing litigation.
    Thank you, Mr. Chairman.
        Mr. Bilirakis. Thank you.
        Mr. Bowers and ladies, Ms. Boggiatto and Ms. Mosley, thank
    you so very much for taking time away from your families--Ms.
    Mosley brought her family with her--and your jobs to come here.
    Some of you have traveled quite a distance, and we appreciate
    it very much.
        Again, get that information to us and anything else that
    you feel you haven't already communicated here today which you
    feel might be significant in what we are going to do.
        This hearing is adjourned.
        [Whereupon, at 12:50 p.m., the subcommittees were
    adjourned.]
        [Additional material submitted for the record follows:]
        [EPA did not respond to questions 2, 3, 6, and 9 of letter
    sent by Chairman Bilirakis and Chairman Oxley.]

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