[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:]

    [GRAPHIC] [TIFF OMITTED] T7120.051
    
    [GRAPHIC] [TIFF OMITTED] T7120.052
    
    Mr. Shimkus. I would also like to show you--and I am 
referring to Mr. Fields--and place in the record some draft 
text that we were provided in November 1999.
    [The information referred to follows:]
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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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