[Senate Hearing 107-667]
[From the U.S. Government Publishing Office]
S. Hrg. 107-667
NOMINATIONS OF THE 107th CONGRESS,
SECOND SESSION
=======================================================================
HEARINGS
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
on
JANUARY 24, 2002
LINDA MORRISON COMBS, to be Chief Financial Officer,
Environmental Protection Agency
J. PAUL GILMAN, to be Assistant Administrator for Research and
Development, Environmental Protection Agency
MORRIS X. WINN, to be Assistant Administrator for Administration and
Resource Management, Environmental Protection Agency
__________
MAY 7, 2002
JOHN P. SUAREZ, to be Assistant Administrator for Enforcement and
Compliance Assurance, Environmental Protection Agency
__________
JULY 18, 2002
JOHN BRESLAND and CAROLYN MERRITT, to be Members of the Chemical Safety
and Hazard Investigation Board
81-722 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION: JANUARY 3-DECEMBER 16, 2002
JAMES M. JEFFORDS, Vermont, Chairman
MAX BAUCUS, Montana BOB SMITH, New Hampshire
HARRY REID, Nevada JOHN W. WARNER, Virginia
BOB GRAHAM, Florida JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut CHRISTOPHER S. BOND, Missouri
BARBARA BOXER, California GEORGE V. VOINOVICH, Ohio
RON WYDEN, Oregon MICHAEL D. CRAPO, Idaho
THOMAS R. CARPER, Delaware LINCOLN CHAFEE, Rhode Island
HILARY RODHAM CLINTON, New York ARLEN SPECTER, Pennsylvania
JON S. CORZINE, New Jersey BEN NIGHTHORSE CAMPBELL, Colorado
Ken Connolly, Majority Staff Director
Dave Conover, Minority Staff Director
(ii)
C O N T E N T S
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Page
JANUARY 24, 2002
OPENING STATEMENT
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 1
WITNESSES
Combs, Linda Morrison, nominated to be Chief Financial Officer,
Environmental Protection Agency................................ 5
Committee questionnaire...................................... 11
Letter, Office of Government Ethics.......................... 26
Prepared statement........................................... 9
Responses to additional questions from Senator Smith......... 26
Gilman, J. Paul, nominated to be Assistant Administrator for
Research and Development, Environmental Protection Agency...... 3
Committee questionnaire...................................... 29
Letter, Office of Government Ethics.......................... 38
Prepared statement........................................... 27
Responses to additional questions from:
Senator Crapo............................................ 40
Senator Smith............................................ 40
Senator Voinovich........................................ 38
Winn, Morris X., nominated to be Assistant Administrator for
Administration and Resource Management, Environmental
Protection Agency.............................................. 2
Committee questionnaire...................................... 43
Letter, Office of Government Ethics.......................... 51
Prepared statement........................................... 41
Responses to additional questions from Senator Smith......... 51
------
MAY 7, 2002
OPENING STATEMENTS
Bond, Hon. Christopher S., U.S. Senator from the State of
Missouri....................................................... 68
Boxer, Hon. Barbara, U.S. Senator from the State of California...61, 64
Corzine, Hon. Jon, U.S. Senator from the State of New Jersey.....53, 65
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 53
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 65
WITNESS
Suarez, John Paul, nominated to be Assistant Administrator for
Enforcement and Compliance Assurance, Environmental Protection
Agency......................................................... 54
Chart, What polluters pay.................................... 77
Job performance evaluation as Assistant U.S. Attorney........ 80
Letters of support:
Michal A. Guadagno, U.S. Department of Justice........... 78
New Jersey Police Benevolent Association................. 83
Prepared statement........................................... 69
Responses to additional questions from:
Senator Boxer............................................ 80
Senator Corzine.......................................... 74
Senator Jeffords......................................... 71
Senator Smith............................................ 72
Senator Wyden............................................ 75
Summary of trials............................................ 78
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JULY 18, 2002
OPENING STATEMENTS
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 85
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 92
WITNESSES
Bresland, John S., nominated to be a Member of the Chemical
Safety and Hazard Investigation Board.......................... 86
Committee questionnaire...................................... 95
Prepared statement........................................... 93
Merritt, Carolyn W., nominated to be a Member of the Chemical
Safety and Hazard Investigation Board.......................... 87
Committee questionnaire...................................... 108
Prepared statement........................................... 106
ADDITIONAL MATERIAL
Letter, Response to IG report, CSB Commissioners................. 157
Report, Management Issues, Inspector General of the Chemical
Safety and Hazard Investigation Board.......................... 115
NOMINATION OF THREE NOMINEES TO THE ENVIRONMENTAL PROTECTION AGENCY:
LINDA MORRISON COMBS; J. PAUL GILMAN; AND MORRIS X. WINN
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THURSDAY, JANUARY 24, 2002
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 2:30 p.m. in room
SD-406, Senate Dirksen Building, Hon. James M. Jeffords,
chairman of the committee, presiding.
OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. Good afternoon to you. We have this
afternoon three nominees for positions with the Environmental
Protection Agency. They are: Ms. Linda Morrison Combs,
nominated to be Chief Financial Officer. Well, that is
impressive.
Then Mr. J. Paul Gilman, nominated to be the Assistant
Administrator for the Office of Research and Development,
another very important job.
Then Mr. Morris Winn, nominated to be Assistant
Administrator of the Office of the Administration and Resources
Management. That is an interesting, fascinating job.
I look forward to the hearing with each of you and want to
comment you on your willingness to commit to public service.
Each of you brings a great deal of experience and expertise to
these positions. I hope we will be working together to assure
the protection of the environment.
I would like to let everyone know how we are going to
proceed this afternoon. Before giving your statement, please
introduce any family members you have here. As I go to each of
you, I would be pleased if you would do that.
Also, you may summarize your statements as much as you
desire, if that feels appropriate. Your full statement will be
included in the record.
We will save questions until each of you has finished your
statement. After all members have a chance to ask questions and
I am the only one here, I think, and probably will be, I'll
conclude the hearing by asking each of you two obligatory
questions.
For those committee members who are unable to be here today
or who have additional questions, we will forward those
questions to them. All members have a limited length of time to
submit questions to you if they are not here at the hearing.
As soon as the committee receives all the responses, then
we will act on your nominations and I want to be as expeditious
as possible.
So, with that, Morris, why don't you start us off and
introduce any of your family that you may have with you.
STATEMENT OF MORRIS WINN, NOMINEE FOR ASSISTANT ADMINISTRATOR
FOR ADMINISTRATION AND RESOURCES MANAGEMENT, U.S. ENVIRONMENTAL
PROTECTION AGENCY
Mr. Winn. Thank you, Mr. Chairman. Unfortunately my family
is not with me. They are back home in Austin, Texas. They are
rooting for me from afar. Thank you very much.
It's with great honor and privilege, Mr. Chairman, that I
am here today as the nominee of President Bush and Governor
Whitman for EPA's Assistant Administrator for Administration
and Resource Management, which I'll refer to as OARM. I am
extremely proud to serve in the Bush Administration and with
Governor Whitman, both of whom are working to enhance the level
of public health and environmental protection for all
Americans. I look forward to working with this committee, the
Congress, and the EPA.
If I can for just a second speak briefly about my
background and discuss where I hope to bring new ideas and
leadership to this position if I am confirmed. I have about 30
years of public service experience in the great State of Texas.
I have worked for four Governors, two attorneys-general, four
commissioners of insurance, and a State Comptroller all who had
very different philosophical views.
I had a leadership role in managing diversity, providing
human resources programs as well as providing a full range of
administrative support. I developed an effective strategy to
recruit, train and retain a high caliber of State employees.
In my last job, Senator, I had the occasion to hire
approximately 700 employees in less than 24 months without any
grievances or lawsuits in that process. Throughout my career I
have pursued public service passionately, employing a balanced
management of people and tasks. I consider myself a fiscal
realist. I intend to be frugal with spending the taxpayers'
dollars under my management. I believe that public service
requires integrity, energy and purpose. It is not simply a job,
nor is it just a profession to me. I consider this a very high
honor. I firmly believe that our Federal employees are indeed
the Agency's most valuable asset. As we collectively raise the
bar of fairness and equity in the workplace, I believe we must
recognize that there are heroes on both sides of every issue.
There are employees who can tell us about all the
injustices in the workplace and discrimination. There are also
those employees who can tell us about all the good and
wonderful things in the organization. I believe that we need
both of these perspectives to improve the workplace
productivity and agency performance.
My goal is to help EPA and its employees find their will to
serve a growing and more demanding customer base. I aim to
establish a system of total accountability where employees at
all levels in the organization will own their jobs, that is,
the duties assigned to them. I believe that employees should be
free to succeed or fail based on their measured performance.
The tragic events of September 11th and the prospects of
terrorist activity have raised anxiety levels throughout our
Nation.
Federal employees have shown courage and dedication in
continuing to serve the American public. I will work to ensure
the safety of EPA's employees and facilities as we meet our
needs.
I am also aware that both the Congress and the President
have concerns about the Federal Government's human capital
crisis and the resulting workforce challenges.
I will ensure that we integrate workforce planning into the
Agency's strategic and budget planning process and under the
umbrella of EPA's human capital strategy, I will work hard to
support all of the President's management agenda initiatives.
Last, I will work to ensure a high level of integrity and
accountability in our financial resources management. Each year
two-thirds of EPA's budget is obligated as contracts or grants.
The management of these resources is very important and it must
be done well.
If confirmed, I will strengthen oversight and make sure
that we have an early warning system built into our processes
that the American people can receive cost-effective results
from contracts and grants. I will not take this position for
granted. I realize it will be a very tough challenge for me as
well as for our organization in these troubling times.
However, if I am confirmed, I pledge to bring the full
weight of my integrity, energy and experience to bear on
meeting the challenges and raise the bar of excellence for EPA
and for OARM.
I will be pleased to answer any questions you may have.
Thank you very much.
Senator Jeffords. Thank you.
Paul, please proceed.
STATEMENT OF J. PAUL GILMAN, NOMINEE FOR ASSISTANT
ADMINISTRATOR FOR RESEARCH AND DEVELOPMENT, U.S. ENVIRONMENTAL
PROTECTION AGENCY
Mr. Gilman. Mr. Chairman, I would like to introduce my
wife, Ginny and our two sons, Samuel and Will. We are also
accompanied by a long-time friend, Angela Ray.
Senator Jeffords. I see a wave coming at me there. Thank
you very much.
Mr. Gilman. It is a privilege to appear before you, Mr.
Chairman. It is certainly a privilege and it's also an honor to
appear as a nominee for the Assistant Administrator for the
research and development efforts at EPA.
I am excited about the opportunity to serve with Governor
Whitman. I would like to first address what I believe are my
qualifications for the position. My education, research and
employment experience, I think, have contributed to those
qualifications.
Most recently I was at Celera Genomics, a private sector
reesearch enterprise, and was able to participate in the
creation of a very fast-paced and highly productive research
program there. My knowledge of research management was greatly
enhanced by that. I believe my immersion in new fields of
genomics and bioinformatics will be useful as we begin to use
these tools in the scientific and technical challenges in the
environmental sciences.
I have served as an external member of the Department of
Energy's Laboratory Operations Board where we studied the
management of their Federal research facilities. I think that
opportunity has contributed again to my general knowledge of
Federal research facilities.
I also spent time before that as the person in charge of
the programs for life sciences and agriculture at the National
Academy of Sciences and Engineering's National Research
Council. That gave me quite an education on the significant
issues and the scientific context that face EPA on a daily
basis.
While at OMB, I had direct responsibility for budget
formulation for the EPA and other science-related agencies and
also participated in the regulatory review process.
At the Department of Energy, I had principal
responsibilities in advising the Secretary in scientific and
technical matters, especially related to human health and
environmental research and environmental remediation.
I spent 13 years in the U.S. Senate as a staff member, my
first year as a congressional science fellow for the American
Association for the Advancement of Science. I had a broad
education in science-related issues and in environmental and
human health issues as well.
I participated in this committee's investigation of the
Three Mile Island Accident, the Nuclear Waste Policy Act of
1982, and broad oversight in a number of regulatory agencies.
I would like to share with you, Mr. Chairman, my thoughts
about the nature of science in government and in EPA. I believe
those that pursue science and engineering in government take on
a special role and a particularly weighty responsibility.
I do believe that in doing so you become an advocate for
the truth. There's a quote of Albert Einstein's engraved on the
monument to him outside the National Academy of Sciences
Building. It captures my feelings on this matter and my
commitment to your committee and to my President. Professor
Einstein said, ``The right to search for truth implies also a
duty. One must not conceal any part of what one has recognized
to be true.''
There has been substantial change in the Office of Research
and Development at EPA under the past two Assistant
Administrators. Dr. Robert Huggett set the major research
programs on a new course, designed to have science serve the
mission of the Agency and to move away from solely research for
research's sake.
Dr. Norine Noonan further moved in that area and also
instituted a very vigorous planning process aimed at making the
right research available to the Agency's regulators when they
need it. We are beginning to see the results of that effort. If
confirmed, I will sustain the reforms that they instituted.
Where appropriate I will initiate new ones with the goal of
pursuing the best use of science in the EPA regulatory process.
Thank you for the opportunity to appear before you, Mr.
Chairman.
Senator Jeffords. Ms. Combs, please proceed.
STATEMENT OF LINDA MORRISON COMBS, NOMINEE FOR CHIEF FINANCIAL
OFFICER, U.S. ENVIRONMENTAL PROTECTION AGENCY
Ms. Combs. Thank you, Mr. Chairman. I regret that my family
is not here today. They are back in North Carolina, where I
come from. But I do appreciate the opportunity and I am very
pleased to appear before you today as you consider my
qualifications for the position of Chief Financial Officer at
the Environmental Protection Agency.
I am deeply honored that I have been nominated by President
Bush for this important post and I certainly want to thank
Governor Whitman as well for her confidence in me in
considering me for this position.
It is indeed a privilege to be considered once again for a
position of great trust within the Federal Government. Some of
the most rewarding years in my career have been spent in
executive positions, primarily in the management positions and
in the finance positions at the Department of the Treasury, the
Department of Veterans Affairs and the Department of Education.
I would welcome the opportunity to serve the public once
again at the EPA. This Agency's staff is well known for their
personal commitment to the organization's mission of protecting
human health and the environment. This is a commitment that I
share, while recognizing as well the special contributions that
sound financial management can and should also make to the
business of environmental protection.
In short, I believe that we must manage and account for our
physical resources just as carefully as we protect and preserve
our natural resources. As you very well know, the Chief
Financial Officer of any organization carries a tremendous
weight and tremendous responsibility. It is a pivotal position
where planning, budget, accountability, and resource management
all come together as they should.
I think that the CFO in a Federal Government agency bears
an additional responsibility of being accountable to the public
that we serve.
I believe that the experiences that I bring with me from
North Carolina where I have participated in State government,
local government, as well as the private sector, and the
experiences that I bring with me having served the other
Federal segments that I mentioned a moment ago, give me the
broadest possible prospective on the kinds of challenges that I
am likely to face in the CFO position at the EPA.
If I am confirmed, it will be my goal to buildupon the
progress that has been made since my last position in the
executive branch. The CFO position was created in 1990 when I
was at the Department of the Treasury. I was pleased to be able
to work with Congress and the White House and OMB to make that
possible.
I can see already from the short time that I have been back
that there have been tremendous improvements made. But we still
have room to grow. Managing performance and results for EPA and
the public that we serve will be my goal. In support of that
goal I just want to pinpoint for you in the next couple of
minutes just a couple of highlights of the opportunities that I
see ahead.
First and foremost, I see the opportunity we have of
meeting the Agency's financial obligations with precision and
timeliness. I am committed to that. We have an obligation to
pursue the President's management agenda which my colleague,
Morris Winn, mentioned a moment ago as well. We will both, if
we are confirmed, have some joint as well as independent roles
in pursuing that.
The updated strategic plan for the Agency is coming about
in September of 2003. I very much look forward as the Chief
Financial Officer to working with your folks and making sure
that this is done in a way that would be beneficial to all of
our constituents needs.
Of course, budgeting and annual planning is always an
integral part of the CFO's work. I look forward to working
closely with Congress on that effort as well.
One of the biggest challenges and opportunities that I see
the Agency confronting is the need to continue developing and
maintaining financial systems that serve multiple customers and
multiple needs.
I am personally committed to managing and communicating
accurate and meaningful information about EPA's fiscal health
and financial position. I believe that Federal agency systems
need to be versatile enough to provide financial statements
worthy of clean audit opinion as well as information about
program costs in a form that's helpful to line managers to
manage their programs better, being able to give a big picture
analysis for those of us who may need to look at that as well.
Certainly congressional interest in, and support for, those
kinds of informational needs is entirely appropriate. Should I
be confirmed, I really look forward to working with you and
your staff and responding to your specific needs and your
constituents' needs. One of the other focal points that I would
like to mention is, of course, our annual report. One of the
principal sources of information that EPA has in citing the
good things that we do should be that annual report. I look
forward to pointing out the benefits that our citizens derive
from the valuable work that EPA does.
In closing, I would just say that in each of the public
offices in which I have served, I have always been guided by
one overriding principle. That principle is that public service
is indeed a public trust. I am committed to upholding the
highest standards of honesty, fairness and integrity. The
people of our country deserve absolutely no less from those of
us who serve in such honored positions.
So, should you honor me with confirmation, I look forward
to working with you and to the job ahead. I have already found,
in the short time I have been at EPA, that the office of the
Chief Financial Officer is staffed with some of the very finest
professionals I have ever met in my life. I am eager to begin
our work together.
I would be pleased to answer any questions that you have.
Senator Jeffords. Thank you very much.
That was an excellent statement. Now the tough questioning
period comes.
Mr. Winn, you have a great deal of experience in managing
everything from personnel to budgets for the State of Texas.
What challenges do you see in managing the resources of this
important Agency?
Mr. Winn. Senator, thank you for that very thoughtful
question. First of all, I think most thinking people will
understand that the crisis facing not only our Agency but all
other Federal agencies and State agencies is the aging
workforce and the so-called ``brain drain.'' I say so-called
brain drain because there's an assumption that us baby boomers
who are retiring have something to offer the population. After
further evaluation, the answer is a resounding yes.
I think a huge challenge for every manager and for the
Assistant Administrators that may be confirmed is to try to
harness that information and capture it in some comprehensive,
consolidated fashion. Not just succession planning, but
knowledge transfer. The challenge will be to transfer knowledge
from those that choose to retire from the Federal Government
and those that just choose to leave and do that in a very
orderly fashion so the taxpayers can always understand that
they are getting their money's worth from Federal employees.
The human capital crisis is our No. 1 challenge. I think
that is no small order. Also, there are changes that probably
have to be performed legislatively. I think there are a lot of
management issues that we need, to address.
Senator Jeffords. Thank you.
Mr. Gilman, EPA has vast and varied research
responsibility. We rely on the Agency to provide the best
available scientific information for our decisionmaking
process. Mr. Gilman, with the challenge of trying to meet all
the research needs of the EPA, how will you set priorities with
the limited dollars you will have to work with? That is going
to be a tough job.
Mr. Gilman. You bet. It is complicated by the fact that
while you want to be very much oriented toward fulfilling the
needs of the programmatic offices that are carrying out the
mission of the Agency, the air office, the water office, you
still want to maintain a core element of research around which
you can really build the research programs for those programs,
a very basic oriented research program that keeps the Agency on
the cutting edge of the science.
So, it's complicated. I believe the regulatory review
process that the EPA is revitalizing will provide a basis for
us to prioritize. It will really help us at the very early
stages of the regulatory process to understand what knowledge
is needed to make a good rule and to understand what role
scientific research plays in that, including what role in-house
research at EPA will be, what role we can assign to university-
based researchers and what we can expect from industry and
advocacy groups in the process.
So, it really becomes a process of trying to first find out
what the Agency's priorities are, and second, find out what the
resources available are within the Agency. Then EPA will
collaborate within the Agency with other Federal agencies, and
nonprofit groups interested in funding research to make sure
that the right information is available when the regulatory
decisions need to be made.
Senator Jeffords. That is a very important job, as you well
know.
Ms. Combs, one of your responsibilities in this is position
will be to promote EPA's perspective when forming Federal
financial policies with all the government agencies. Given the
importance of the Agency's responsibilities in protecting our
environment, how will you do that when competing interests such
as education and defense will have their agencies advocating
their perspective, and trying to grab every nickel they can?
Ms. Combs. You are quite familiar with that yourself, Mr.
Chairman, I know. You wrestle with that all the time, each and
every day. You know, there are a lot of priorities that our
country faces right now.
One of the priorities that I hold very near and dear to my
heart is a priority that I grew up with. I grew up in rural
North Carolina. I grew up where I could put my toes in the
grass and walk in the streams and do all the things that I
would love to see all children be able to do.
I still, when I go back to North Carolina, have a great
feeling that I like to put my toes in the grass. So, I have a
great admiration and need to look at those beautiful mountains
and enjoy the beautiful coastal areas.
I expect every American likes to feel that they have clean
water, and clean air and they deserve nothing less. As I said
in my testimony, the Chief Financial Officer is indeed a
pivotal point where EPA's priorities come together. You are
speaking about priorities that EPA has weighed against
priorities of the Department of Defense and the Department of
Education. We all have our roles to play. In this important and
critical time in our Nation, I think we can't overlook the
importance of clean water, clean air and clean land.
That is an important responsibility. It's an important
accountability for each and every one of us. I will do my part
when working on the CFO council to make sure that we speak from
integrity and openness and we will have our place at the table.
Senator Jeffords. Thank you, Mr. Chairman. Now come the
obligatory questions. I would like you all to stand and answer
``yes'' is that's the appropriate answer.
Are you willing, at the request of any duly constituted
committee of the Congress, to appear in front of it as a
witness?
Mr. Winn. Yes.
Mr. Gilman. Yes.
Ms. Combs. Yes.
Senator Jeffords. Do you know of any matters which you may
or may not have thus far disclosed which might place you in any
conflict of interest if you are confirmed in this position?
Now, that takes a different answer, I think.
Mr. Winn. No.
Ms. Combs. No.
Mr. Gilman. No.
Senator Jeffords. You may be seated. I want to thank you
for your willingness to participate. It is so important. With
the capabilities and qualifications that you have, I know it's
going to be a real pleasure working with all three of you.
I am attempting and hopefully will move your nominations
next Tuesday so we can get our best value that way. But one
never knows around here what will happen. But all expectations
are that we'll be able to do that.
Thank you very much. The hearing is adjourned.
[Whereupon, at 3 o'clock p.m., the committee was adjourned,
to reconvene at the call of the Chair.]
[Additional statements submitted for the record follow:]
Statement of Linda Morrison Combs, Nominee for Chief Financial Officer,
U.S. Environmental Protection Agency
Mr. Chairman and members of the committee, I am pleased to appear
before you today as you consider my qualifications for the position of
Chief Financial Officer of the Environmental Protection Agency (EPA). I
am deeply honored to have been nominated by President Bush for this
important post, and I would like to thank Governor Whitman for her
confidence in selecting me for this position.
It is a privilege to be considered once again for a position of
great trust within the Federal Government. Some of the most rewarding
years of my career have been spent in executive positions with the
Department of the Treasury, the Department of Veterans Affairs, and the
Department of Education. I would welcome the opportunity to continue to
serve the public at EPA, an agency whose staff are well-known for their
personal commitment to the organization's mission: protecting human
health and the environment. This is a commitment that I share, while
recognizing the special contributions that sound fiscal management can
make to the business of environmental protection. In short, we must
manage and account for our fiscal resources as carefully as we protect
and preserve our natural resources.
The Chief Financial Officer (CFO) of any organization carries a
tremendous responsibility. It is a pivotal position, where planning,
budgeting, accountability, and resource management all come together.
In government organizations, the CFO bears additional responsibility as
an executive accountable to the public. I believe my experiences at
Federal, State, and local government levels and within the private
sector have given me the broadest possible perspective on the kinds of
challenges likely to face the CFO in any large organization.
Moreover, I am quite familiar with the management issues of
greatest concern to CFOs in the executive branch. I was fortunate to
have worked closely with Congress and the Office of Management and
Budget on development and passage of the Chief Financial Officers Act
of 1990. We did a great deal of work together to define financial and
performance standards for Federal CFOs that would be consistent with
those normally applied to private sector CFOs. I believe the success of
that landmark legislation is apparent in the advances made across
government since my tenure as the first CFO at Treasury. If I am
confirmed, it will be my goal to buildupon the progress that has
already been made and continue to improve management, performance, and
results for EPA and for the public we serve.
In support of this goal, I would like to highlight a few of the
opportunities I see ahead.
Should my appointment be confirmed, a major focus of my work at EPA
would be to pursue the President's Management Agenda, which focuses on
Human Capital, E-Government, Competitive Sourcing, Financial
Performance, and Budget and Performance Integration. I would apply to
this work the best practices I have identified in my private and public
sector management experience.
EPA's Office of the Chief Financial Officer would have an
opportunity to maintain its focus on solid, customer-oriented financial
services, meeting the Agency's financial obligations with precision and
timeliness. EPA has a good track record in this area, as demonstrated
by the performance measures applied to CFOs across government, and I
would look forward to continuing to meet or exceed all standards.
EPA will surely continue its work in compliance with the Government
Performance and Results Act (GPRA). A major part of that work will be
the planning and consultation that will result in an updated Strategic
Plan for the Agency, to be submitted to Congress in September 2003. The
Office of the Chief Financial Officer is EPA's focal point for this
effort. I would expect to build on the Agency's experience of working
through two strategic plans under GPRA, factoring in my own previous
planning and budgeting experience as a Federal management executive.
Of course budgeting and annual planning will be a large part of the
office's work, as it was in the organizations I headed at Treasury,
Veterans Affairs, and Education. I look forward to leading the Agency's
budget formulation and management activities and pledge to work closely
with Congress in that effort. EPA has been commended by GAO and other
oversight organizations for linking its strategic plan, annual plans,
and budgets, using a common framework of goals and objectives. If
confirmed, I would work to maintain such links and refine the Agency's
efforts to connect costs and results.
The Agency will need to continue developing and maintaining
financial systems that serve multiple customers. I am personally
committed to managing and communicating accurate, meaningful
information about EPA's fiscal health and financial position. I believe
Federal agency systems need to be versatile enough to produce financial
statements worthy of clean audit opinions, as well as information about
program costs in a form that is useful to line managers who need to
make informed decisions. No less important is the need for Federal
agency systems to produce information for ``big picture'' analysis of
how much is spent to achieve particular results for the American
people. Congressional interest in this kind of information is entirely
appropriate, and duly noted. Should I be confirmed in this position, I
would look forward to working with you to respond to your needs.
One principal source of information citing EPA's accomplishments is
its Annual Report, with which I am sure you are familiar. The Office of
the Chief Financial Officer is also the Agency's focal point for
preparing this report. EPA's Annual Report has been recognized as one
of the best in government for bringing together its audited financial
statements, a comprehensive discussion of program accomplishments, and
an assessment of Agency management controls. If confirmed, I would seek
opportunities to communicate to the public ever more clearly how EPA
employs their tax dollars, and what benefits our citizens derive from
the valuable work that EPA does.
In each of the public offices in which I have served, I have been
guided by one over-riding principle: public service is a public trust.
I pledge to you that I am committed to upholding the highest standards
of honesty, fairness, and integrity. The people of this great country
deserve no less from those of us who serve in such honored positions.
I approach the challenges that lie before me with enthusiasm, and
eagerness to provide expert leadership for the EPA and for this
Administration. Should you honor me with confirmation, I look forward
to working with you and to the job ahead. The Office of the Chief
Financial Officer is staffed with some of the finest professionals
anywhere. I am eager to begin our work together.
At this time, I would be pleased to answer any questions you may
have.
Responses of Linda Morrison Combs to Additional Questions from Senator
Smith
Question 1. In light of the anticipated retirement of a large
number of upper and mid-level EPA staff, what steps would you recommend
taking to fill those positions in order to avoid a lull in overall
productivity?
Response. I recognize that the issues of a maturing workforce are
among the most serious that Federal managers need to address. It makes
sense that the first governmentwide initiative in the President's
Management Agenda is the strategic management of human capital. I would
recommend that EPA's senior management continue to seek opportunities
to apply best practices in this area, including recommendations of the
General Accounting Office (GAO) and others. It is clear that the Agency
cannot accomplish its mission to protect human health and the
environment without a workforce that is trained and deployed
strategically for that purpose.
If Morris Winn and I are confirmed, I would look forward to working
closely with him and other senior EPA executives to promote and
implement a Workforce Development Strategy that includes activities
targeted at all employee levels within EPA. I would expect to be a
strong supporter of efforts to recruit new talent into the Agency, as
well as programs to develop and retain current expertise. These include
EPA's SES Candidate Development Program; projects to enhance the skills
of new managers and train journeyman-level employees who aspire to
supervisory positions; and career development programs for
administrative and support staff.
Question 2. How do you see EPA being affected financially by such a
``brain drain?"
Response. If confirmed, I would make it a priority to see that EPA
is not affected financially or otherwise by a loss of expert staff. If
the Agency were to lose a significant part of its financial management
expertise, that could have a serious financial effect, but I do not
intend to let that happen. The Office of the Chief Financial Officer
has a 2001 turnover rate that is slightly lower than that for EPA as a
whole (4.89 percent, as compared with 5.16 percent), and the proportion
of its employees eligible to retire at the end of fiscal year 2004 is
also lower than for the Agency (14.6 percent, as compared with 17.7
percent). The Office of the Chief Financial Officer relies on some very
specific technical skills, and I am committed to assuring continuous
expertise in years to come.
Question 3. What steps do you propose taking to minimize those
financial repercussions?
Response. Given the opportunity to serve, I would make a commitment
to lead efforts in the Office of the Chief Financial Officer to match
staff talents with the important work we will need to do. I would
review the Office's skills assessments to determine current abilities
and estimate future demands on our collective know-how, and work with
senior managers to maintain a top financial management workforce for
EPA. I would also promote career development programs for the Office's
administrative and support staff, and for first-line supervisors. I
have attended meetings of a front-line supervisors' group and look
forward to supporting their development if I am confirmed as Chief
Financial Officer. I would continue the Office's own summer intern
program, which has a history of attracting students from a variety of
backgrounds and academic disciplines. Given the opportunity, I would
seek ways to expand involvement with the EPA Intern Program and other
recruiting efforts to attract a diverse group of talented people to
begin Federal careers with EPA's Office of the Chief Financial Officer.
__________
Statement of J. Paul Gilman, Nominee for Assistant Administrator for
Research and Development, U.S. Environmental Protection Agency
Good afternoon, Mr. Chairman and members of the committee. It is a
privilege to appear before you as the nominee to be the Assistant
Administrator for Research and Development for the United States
Environmental Protection Agency (EPA). I am honored that President Bush
has nominated me and I am excited about the opportunity to serve with
Governor Whitman. I am delighted to be joined today by my wife Ginny
and our sons Samuel and Will.
Let me first address my qualifications for the position. I believe
my education, research, and employment experiences have all contributed
to my qualifications. While employed at Celera Genomics I had the
opportunity to participate in the creation of a fast-paced and highly
productive private sector research enterprise. My knowledge of research
management was greatly enhanced by this experience. I believe my
immersion in the new fields of genomics and bioinformatics will be
useful as we begin to use these tools to solve scientific and technical
challenges in the environmental sciences. Serving as an External Member
of the Department of Energy's Laboratory Operations Board has afforded
me an excellent opportunity for insight into the management of Federal
research facilities. While at the National Academies of Science and
Engineering's National Research Council I had responsibility for
activities in the life sciences, including agriculture. The scientific
and technical activities of the EPA were often the subject of our
various review and reports. This provided me with an in depth view of
some of the most significant issues faced by the EPA, the scientific
context for these issues, and the research personnel and programs at
the EPA working to inform the agency's decisionmaking. At the Office of
Management and Budget (OMB) I had direct responsibility for budget
formulation and oversight for the EPA among other science-related
agencies. My responsibilities also included participation in OMB's
process for the review of proposed regulations from the EPA. While
employed at the DOE my specific responsibilities included advising the
Secretary on scientific and technical matters. These included the
programs studying human health and environmental effects of energy-
related technologies, environmental research, and environmental
remediation. During my 13 years working for the U.S. Senate, including
1 year as a congressional Science Fellow of the American Association
for the Advancement of Science, I had the opportunity to work on a wide
variety of science-related issues, including environment and human
health issues. I participated in the Committee on Environment and
Public Works' investigation of the Three Mile Island Nuclear Power
Plant accident, the passage of the Nuclear Waste Policy Act of 1982,
and oversight of the U.S. Department of Energy's (DOE) research and
development programs including its environmental research and
remediation programs. As a staff member for a Senate committee I had
the opportunity to participate in and learn the congressional budget
process for Federal agencies. As a staff member for Senator Pete
Domenici I necessarily became a student of the Federal Government's
overall budget process. Last, my undergraduate education in the liberal
arts included a broad involvement in the sciences. My graduate
education and research focused in the earth and life sciences with a
concentration in ecology and evolutionary biology.
I would like to share with the committee my thoughts about the
nature of science in government and at the EPA. I believe those who
pursue science and engineering in government take on a special role and
a weighty responsibility. You must be an advocate on behalf of the
truth. There is a quote of Albert Einstein's engraved in the monument
to him outside the National Academy of Sciences. It captures my
feelings and my commitment to this committee and my President. It
reads:
The right to search for truth implies also a duty; one must not
conceal any part of what one has recognized to be true.
There has been substantial change in the Office of Research and
Development at EPA under the past 2 Assistant Administrators. It has
been aimed at improving the quality and utility of its science. Dr.
Robert J. Huggett set major research programs on a new course. One that
was designed to have science serve the mission of the Agency, not just
research for the sake of research. He also initiated a substantial
program for funding university-based research that is also focused on
serving the mission of the agency. His successor, Dr. Norine E. Noonan,
supported his initiatives and extended them. There is today a rigorous
research planning process aimed at making the right research available
to the EPA regulators when they need it. We are beginning to see the
results of this effort. If confirmed, I will sustain these reforms and
where appropriate, initiate new ones in the pursuit of the best use of
science in the EPA regulatory process.
Thank you for this opportunity to appear before you, Mr. Chairman.
______
Responses of J. Paul Gilman to Additional Questions from Senator
Voinovich
Question. The EPA's Cancer Risk Guidelines are well overdue. This
is having a detrimental impact on programs across the Agency, not the
least of which is the Air Toxics Program. To quote John Graham in
testimony before the Clean Air Subcommittee in 1999, ``cancer-risk
determinations will play a critical role in EPA's implementation of the
residual-risk provisions of CAAA-90, yet EPA has still not modernized
it's cancer risk assessment guidelines to account for advances in
biological understanding of the mechanisms of cancer induction. These
advances can have a critical impact on which chemicals are classified
as ``carcinogens'' for regulatory purposes and what dose-response
relationships are assumed in quantitative modeling of cancer risk. EPA
has proposed reforms but is moving at a slow pace to adopt them. The
agency's recent decision to ignore mechanistic science regarding
chloroform has sent a signal in the scientific community of the
agency's weakened commitment to modernize methods of cancer risk
assessment (Chloroform is a chemical shown to cause cancer in animals
at high doses that mechanistic science suggests is unlikely to cause
human cancer at low doses).''
While I realize that EPA has made some progress since 1999, they
have yet to complete the cancer guidelines. Could you please explain
your view of the current state of the problem at EPA and how you would
propose to prioritize the scientific work of the Agency and update the
scientific methodologies used not only by ORD but all of the program
offices?
Question 1A. My view of the current state of the Cancer Risk
Guidelines
Response. The Deputy Administrator recently (December 20, 2001)
gave guidance for the completion of these guidelines. After a period of
public comment set to end this week, a final draft of the revised
guidelines will be prepared for internal review. This draft will
respond to the comments received during the public comment period and
the comments of the EPA's Scientific Advisory Board. This will be
followed by an interagency review and then the formal process of Agency
clearance.
These revised guidelines were first proposed in 1996. They reflect
the substantial improvements in the state of scientists' knowledge
about the mechanisms that cause cancer. In the earliest years of EPA's
operation the Agency used assumptions about the carcinogenicity of
substance in lieu of detailed knowledge about the mechanisms of action
for the particular substance of concern. Today, it is possible to
substitute our greater knowledge of the mechanisms of cancer
development for some of these so-called default assumptions. It has
taken EPA additional time to resolve concerns over moving away from the
earlier default assumptions. Some commenters believe that the science
has not matured to the point where it can be used directly. In an
effort to finalize these guidelines, Deputy Administrator Fisher is
working to resolve some of these differences in approach by calling for
a new effort to promote interaction with key Agency constituencies.
This tension among groups that differ in their willingness to
incorporate new scientific knowledge into the regulatory process is not
unique to the cancer guidelines. I believe the Deputy Administrator's
effort to reach out to these different viewpoints is the correct
approach to resolving this and other similar regulatory situations.
Question 1B. How do I propose to prioritize the scientific work of
the agency?
Response. In my view, the scientific work of the agency falls into
two major categories. There is scientific research that is performed by
the EPA, and there is the use or application of scientific information,
whether performed by the Agency, academia, or industry, in creating
regulations or in enforcing them. Under the category of research there
is fundamental research and applied research. I believe that the Agency
makes the distinction by using the terms ``core'' research for
fundamental work and ``problem-driven'' research for applied work.
Fundamental research must be performed to understand the basic
mechanisms of how substances in the environment can adversely affect
our health. There is also fundamental research which is necessary to
improve our understanding of how ecological systems operate and how
they are affected by human activities. Prioritizing fundamental
research is a matter of identifying critical gaps in our understanding.
Prioritizing applied research used for a particular regulatory activity
is different. To the extent regulatory needs are driven by statutory
deadlines prioritization is a fairly straightforward process. It
becomes more complicated, however, when statutory deadlines do not
anticipate the time necessary for the research to be completed.
Question 2. In a 2000 National Research Council Report,
``Strengthening Science at the Environmental Protection Agency,'' the
Office of Research and Development at EPA was recognized as the
Agency's most senior science official. In 1995, in response to the
interim NRC report which recommended that the Assistant Administrator
for ORD be designated as the chief scientific and technical officer at
EPA, the head of ORD was asked to coordinate the agency's scientific-
planning and peer-review activities.
The 2000 NRC report found that the 1995 move was inefficient and
that the head of ORD was not given real authority over science
activities. Could you please explain your view on the role ORD should
play in developing science at the EPA?
Response. Again, there are two elements to ``science'' at EPA. The
first is research in support of the regulatory mission and the second
is the use of that research and other scientific information in the
regulatory decisionmaking process. The Office of Research and
Development (ORD) acts as a service to the programmatic offices of the
EPA for example, the Office of Air and Radiation and the Office of
Water. ORD must develop research plans in cooperation with those
offices that can provide the right scientific information at the
appropriate time to support the regulatory process. ORD also has a role
in the programmatic offices' use of scientific information in
regulatory decisions. ORD actively participates and leads a number of
cross-agency activities aimed at improving the use of scientific
information and analytical tools for the regulatory process. ORD also
reviews specific regulatory actions. In my view these fundamental roles
are appropriate and the burden is on ORD to provide effective
scientific leadership and the programmatic offices to respond.
______
Responses of J. Paul Gilman to Additional Questions from Senator Crapo
Question 1. Do you believe that R&D is an integral part of the
EPA's functions? Does it have an impact on future compliance costs,
available technologies, proposed regulatory levels, or future decisions
made by the regulated community?
Response. In my view, while the regulatory activities of the EPA
are carried out within a statutory context, the regulatory
decisionmaking process is largely an analytical one based on scientific
and technical knowledge. As such, research and development plays into
all the elements of the process you have identified.
Question 2. A September 1999 GAO report was very critical of the
EPA's prioritization of drinking water R&D programs. In addition to
noting that the agency regularly requested lower than authorized levels
of funding for drinking water R&D, the GAO found that there was little
long-term or cohesive planning within the ORD. What steps has the EPA
taken to correct this problem? With your management and strategic
planning background, what additional steps will you implement at the
EPA to address this situation?
Response. Over the past several years ORD has designed and begun
implementing a research planning process as part of the annual budget
process. A key feature and the first step in the process is that the
various programmatic offices of the EPA (e.g., the Office of Air and
Radiation, and the Office of Water) are consulted as to their
scientific and technical needs. ORD then plans out the appropriate way
in which to carry out the research necessary to provide their
scientific and technical needs. These plans cover multiple years. They
also identify the appropriate role for different EPA laboratories,
academic researchers, and collaborations between EPA, industry, and
other non-governmental research organizations. I would like to extend
this process to the point where laboratories of the various program
offices and Regional Offices are well integrated and informed about
each others activities.
______
Responses of J. Paul Gilman to Additional Questions from Senator Smith
Question 1. In light of the anticipated retirement of a large
number of EPA scientists and individuals with specific technical
background, what steps would you recommend taking to fill those
positions in order to avoid a lull in overall productivity? How do you
see EPA being affected by such a ``brain drain?'' What steps do you
propose taking to minimize those repercussions?
Response. There are some important activities recently started in
ORD that are intended to ameliorate the anticipated retirement
situation. One of the most important, in my opinion, is a program to
attract post-doctoral researchers to EPA. These researchers, with fresh
new ideas and experiences, may serve as an important resource for EPA
in the future. A Work Force Plan is also being developed. It
necessarily assumes some things about the future direction of EPA and
the resulting research needs. I plan to seek expert advice from outside
EPA in this process.
Question 2. As the EPA continues to evaluate and review current and
emerging environmental sciences and technologies, how would you propose
to balance scientific uncertainty with the need for timely policy
decisions?
Response. The goal of anyone managing a research effort in support
of a regulatory or policy decisionmaker is to minimize the leap between
what we know and what we must decide. Sometimes the gap is the absence
of information. Sometimes the gap is one of uncertainty about the
reliability of what we do know. The challenge is to decide how
important reducing that uncertainty is and at what cost. For some
critical decisions it is appropriate to conduct further research and
repeat prior research. For some less important decisions we may be able
to accept higher levels of uncertainty. This decisionmaking process
should be carried out on a case-by-case basis and in consultation with
stakeholders affected by the decisions in question.
Question 3. Senators Jeffords, Graham, Crapo and I will soon
introduce legislation to reauthorize the State revolving loan funds of
both the Clean Water Act and the Safe Drinking Water Act. One of the
challenges we have faced is a large gap between infrastructure needs
and the money available to help communities meet those needs. As such,
we have been exploring various cost-saving measures, one of which
includes additional research into new technologies for water and
wastewater facilities. I am particularly interested in new approaches
to the problem of combined-sewer overflows.
Can you describe for me the status of research into new
technologies, including how much is currently on-going? How can you
help make this a greater priority for the Agency?
Response. It has been said that even small improvements in cost
reduction for the replacement of water infrastructure could have great
effects given that the costs of infrastructure replacement in the not
too distant future are estimated to be as high as $1 trillion. An
analogous situation can be found in the Superfund Program where a
statutorily mandated research program, the SITE Program, was created to
develop cost-saving technologies for the program. Since the initiation
of the SITE Program in 1986, cleanup of contaminated sites through the
use of innovative technologies has resulted in a total cost savings
(adjusted for inflation) of over $2.3 billion dollars.
Current ORD activities that relate to water infrastructure needs is
limited. ORD serves the Office of Water as a performer of research.
Priorities are set in consultation with that Office. To the extent the
Office of Water has legislative mandates that must be given higher
priority it will likely be difficult to greatly expand infrastructure
research. If confirmed, I will work closely with that office to
identify opportunities for future research initiatives in this area.
Question 4. As you may know, I have served on this authorizing
committee for many years and in that capacity I have supported giving
priority to non-animal, alternative test methods for inclusion in EPA's
programs. I also strongly supported the fiscal year 2002 $4 million
earmark for the Office of Research and Development (ORD) to research,
develop and validate non-animal, alternative test methods.
In your capacity as Assistant Administrator for Research and
Development, will you commit to meeting with all stakeholders,
including representatives from a coalition of animal protection
organizations to discuss the opportunities for assessing which test
methods to prioritize to ensure the most rapid and substantial
reduction possible in animal use at the EPA and to replace animal tests
with faster, less expensive, and more reliable non-animal methods?
Response. Yes.
__________
Statement of Morris X. Winn, Nominee for Assistant Administrator for
Administration and Resources Management, U.S. Environmental Protection
Agency
Mr. Chairman and members of the committee, it is with great honor
and privilege that I am here today as the nominee of President Bush and
Governor Whitman for the Environmental Protection Agency's Assistant
Administrator for Administration and Resources Management, also known
as OARM.
First of all, I am very proud of being asked to serve in the Bush
Administration and with Governor Whitman, both of whom are aggressively
working to enhance the level of public health and environmental
protection for all Americans. I look forward to working closely with
the Congress, to improve management and performance at EPA.
Let me speak briefly about my background and discuss where I hope
to bring new ideas and leadership to the position, if confirmed.
I have almost 30 years of experience in public service for the
great State of Texas, working for four Texas Governors and two Attorney
Generals, who held different philosophical views. I had a leadership
role in managing diversity, administrative support activities, and
human resource programs in the offices of the Texas State Attorney
General and Commissioner of Insurance. Most recently, as the Director
of Human Resources in the Comptroller's Office, I developed and
implemented an effective strategy to recruit, hire, train, and retain
many high performing employees. We hired approximately 700 employees
over 24 months without any grievances or lawsuits.
Throughout my career, I have pursued public service with a passion,
and have dedicated myself to ``good'' government and governance, taking
a balanced and common sense approach to managing both people and
processes. I am a fiscal realist. I intend to practice frugal spending
of tax payers'dollars in all the offices under my management authority.
I believe that public service, at all organizational levels, must be
delivered with integrity, energy, and purpose. I bring to this position
a keen and sincere understanding that public service is not simply a
job, nor a profession! It is a public trust and high honor.
On this note, I firmly believe that our Federal employees and the
EPA family of approximately 18,000 people are indeed the Agency's most
valuable asset. As we raise the bar of fairness and equity in the
workplace, we must recognize that there are heroes on both sides of
every issue. There are those who speak up about injustice on racial or
gender issues; or government waste. On the other hand, there are those
who tell you about all the right and good things happening at an
Agency. I recognize that we need both of these perspectives in order to
continually look for ways to improve the talent and productivity of our
workforce and performance of our Agency.
If given the opportunity, I look forward to bringing these
experiences and perspectives to the leadership team at EPA and to
continuing to sharpen EPA's focus on efficient management services.
I would like to summarize the values and principles that will guide
me if confirmed as EPA's Assistant Administrator for OARM. They
include: integrity and fiscal responsibility; openness and willingness
to listen; fairness and accountability; proactivity; and a spirit of
partnership.
EPA's OARM provides leadership to ensure sound management of
administrative services throughout the Agency. The Office has a broad
range of functions, including: management of human resources; contracts
and grants management; employee health, safety and security; and
facilities construction and maintenance.
My goal in providing leadership to these functions, is to help EPA,
and its employees find the will to serve a growing and more demanding
customer base. To lead this organization into a model or ``best
practice'' organization, I would like to establish a system of total
accountability where employees at all levels will ``own'' their jobs,
that is, the duties assigned them. Employees should be free to succeed
or fail based on their measured ability.
The tragic events of September 11th and the ongoing concerns over
increased terrorist activity, have raised the level of anxiety
throughout our Nation. Federal employees have shown an exemplary degree
of courage and dedication to serving the American public, rising to the
President's challenge and returning to their jobs. I see one of my
primary responsibilities as ensuring the safety and security of EPA's
workforce and facilities. I will work to ensure that current efforts
are consistent with the security demands of our times and work to test
the responsiveness of those systems.
I am also aware that both the Congress and the President have
concerns about the Federal Government's Human Capital Crisis, and the
resulting workforce challenges. In line with GAO's recommendations, I
will ensure that we integrate workforce planning into the Agency's
Strategic and Budget Planning processes, and under the umbrella of
EPA's Human Capital Strategy, I will work hard to support the
President's Initiatives.
Lastly, I will work to ensure a high level of integrity and
accountability in the management of our financial resources. Each year,
approximately two-thirds of EPA's budget is obligated as contracts or
grants. The management of these resources is a very important function
and must be done well. In this regard, I have been informed that the
Agency has made substantial progress over the past 2 years, so much so
that the grants close-out backlog has been virtually eliminated,
reduced by 97 percent. If confirmed, I will focus my efforts, and the
efforts of my management team, on strengthening oversight and making
sure that we have early warning systems built into our processes and
that the American people get cost-effective results from these
contracts and grants.
In summary, effectively discharging the responsibilities of the
Office of Administration and Resources Management is critical to
meeting EPA's mission. I believe that it is in the best interest of EPA
and the public to integrate mission goals and effective management with
the principles of ``good'' government. I believe that bureaucracy, that
part of government that is brushed with a paint brush of regulations
and process, is important so long as the process never gets in the way
of good government and public policy. Bureaucracy is bad when it
rewards poor performance in the same manner that excellent performance
is rewarded. Bureaucracy is also bad when we govern by excruciating
detail, dictating every result in advance. This kills management
creativity and common sense.
This position will be a tough job as there are many challenges
ahead for this organization. If confirmed, I pledge to bring the full
weight of my integrity, energy, and experience to bear on meeting those
challenges and raise the bar of excellence for this organization.
Let me close by expressing my appreciation to the committee for its
recognition of and support for the Agency's vital mission and the
opportunity to appear here today. I'm pleased that my wife and children
are here and would like to thank you for the courtesies extended to
them. At this time, I would be pleased to take any questions that you
may have.
______
Responses of Morris X. Winn to Additional Questions from Senator Smith
Question 1. In light of the anticipated retirement of a large
number of upper and mid-level EPA staff, what steps would you recommend
taking to fill those positions in order to avoid a lull in overall
productivity?
Response. One of the most serious human capital issues in the
Federal Government is the retirement of tenured managers. While this
fact is recognized by the President, Congress, the Office of Management
and Budget (OMB) and the Office of Personnel Management (OPM), it will
be the Federal agencies that have primary responsibility for ensuring
that the departure of upper and mid-level staff will not result in a
crisis in the tax-payer or customer confidence.
In this regard, I am committed to working with senior EPA
executives to fully implement several strategies including, but not
limited to the following:
Engaging in the Senior Executive Service (SES) Candidate
Development Program.
Rotating current SES members and creating senior advisors
or mentor partners. This process will relieve certain SES members of
day-to-day management responsibilities and allow them to transfer
valuable knowledge to less tenured managers in an orderly manner.
Fully implementing a recruiting strategy that attracts
and retains workers who have skills needed for the future.
Working closely with all senior EPA executives to
identify best practices that will allow the Agency to use information
technology to capture the knowledge of retiring employees.
Question 2. How do you see EPA being affected by such a ``brain
drain?"
Response. If confirmed, I hope to assist the Administrator and
senior EPA executives to minimize the effect of potential retirements
by supporting a workforce planning system. This system will provide
standardized workforce planning requirements and methodologies to be
used Agency-wide. It will include:
identification of knowledge, skills and competencies
needed in the future;
types and numbers of positions needed by series and
grade;
an inventory of skills and competencies in the current
EPA workforce;
an examination of statistical data on expected attrition
by occupational categories and grade levels; and
a comparison of future skill needs (both skills/
competencies and numbers by occupations and grades) to existing
workforce and identification of the gaps.
Also, this system will help EPA forecast new hires by program
office and Region, taking into account budget projections and funds
needed for training and development; prepare multi-year workforce plans
to guide decisions on workforce composition and hiring; and guide
employee development efforts at the local and national level. Based on
the workforce plans, EPA will develop and implement national and local
recruitment strategies; develop strategic approaches to retaining
employees with critical expertise and competencies; and maximize
flexibility in using workforce programs that contribute to EPA's
attractiveness as an employer. It is my sincere belief that these
efforts coupled with the will of EPA senior staff will result in a
neutral affect of the ``brain drain.''
Question 3. What steps do you propose taking to minimize those
repercussions?
Response. If confirmed, I intend to utilize my energy to tailor a
holistic approach to manage the repercussions of a ``brain drain.'' The
first step is to target recruitment that attracts a diverse and well
qualified pool of applicants. I am advised that this is presently being
accomplished through EPA's web-based systems, such as ``EZ-Hire'', a
new automated recruiting system; and ``HR Pro'', the new human
resources information system.
In addition, I will seek creative ways to look at phased retirement
approaches, that is, any plan where potential retirees could work
longer or part-time without an adverse affect on the retirement
annuity.
One of the paramount challenges for EPA will be to offset any
potential research gaps caused by retiring scientists. I understand
that the Agency is considering options for special hiring legislative
authority which would enhance EPA's ability to compete for high quality
research scientists. If J. Paul Gilman, Linda Morrison Combs and I are
confirmed, I intend to work closely with them on this issue.
In essence, I am committed to exploring a full range of options
that will minimize any repercussions from retirement or other
separations. EPA has a fairly low annual turnover rate of approximately
5 percent, lower than the Federal Government. This allows EPA senior
executives to be thoughtful in planning strategies for the continued
development and retention of its workforce.
NOMINATION OF JOHN PAUL SUAREZ
----------
TUESDAY, MAY 7, 2002
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 11 o'clock a.m.
in room 406, Senate Dirksen Building, Hon. James M. Jeffords
[chairman of the committee] presiding.
Present: Senators Jeffords, Boxer, and Corzine.
OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. Good morning. I would like to welcome Mr.
John Peter Suarez, President Bush's nominee to be the Assistant
Administrator of Enforcement and Compliance Assurance for the
Environmental Protection Agency.
I would like to let everyone know how we will proceed this
morning, and I will recognize--I believe Senator Smith will be
here, and if he comes, he will have an opening statement; and
Senator Corzine who will, of course, introduce Mr. Suarez.
Before you begin your statement, if you would please
introduce any of your family members that you may have with
you.
Mr. Suarez. Thank you, Senator Jeffords.
With me, right behind me, is my wife, Natalie, and she has
our 2-year-old, Lena, in her lap; and this is my daughter
Chloe, who is just a little bit over 4 years old. This is my
sister-in-law, Ann Suarez. This is my brother, Paul Suarez. And
hiding in the back in the stroller, right now sleeping--but I
can't guarantee that--is my son Maxwell, who is about 8 weeks
old.
Senator Jeffords. All right. Well, you're doing very well.
Now I would ask Senator Corzine if he has a statement he
would like to make.
OPENING STATEMENT OF HON. JON S. CORZINE, U.S. SENATOR FROM THE
STATE OF NEW JERSEY
Senator Corzine. Thank you, Mr. Chairman. It is my pleasure
to introduce my fellow New Jerseyan, John Peter Suarez, to the
committee; he is more informally known as ``J.P.''. Mr. Suarez
has been nominated by President Bush, as you noted to be the
Assistant Administrator for EPA's Office of Enforcement and
Compliance Assurance, and I also would like to welcome his
family; they are terrific folks.
I want to note very clearly that J.P. Suarez has served
with distinction as an outstanding public servant in several
capacities in New Jersey. He has worked as an Assistant U.S.
Attorney in Newark. He later served Governor Whitman as an
Assistant Counsel and as Special Assistant to the Director of
New Jersey's Division of Criminal Justice. Most recently, Mr.
Suarez served as Director of New Jersey's Division of Gaming
Enforcement.
He has an outstanding reputation among my fellow New
Jerseyans for integrity, professionalism, and hard work. I know
he has been working very hard to prepare for this new role. He
has received awards throughout his career, and I think he will
bring a strong enforcement ethic to the EPA, which I think all
of us would like to see.
Mr. Chairman, the laws that EPA implements are designed to
protect public health and the environment. Strong enforcement
of these laws is critical to my home State and to all of the
people of the Nation. As I have noted, to where you are
probably bored hearing it, New Jersey is unfortunately the home
of more Superfund sites than any other State in the Nation. We
are concerned about enforcement in New Jersey. We have
continuing problems with air and water pollution, and the
impact on health across my State is serious, as it is, again,
across the Nation. So this is one of the most important jobs
that I think we have.
I think we can depend on Mr. Suarez to fulfill those
responsibilities and enforce those laws vigorously. We've had
private discussions about this, and I take him at his word, Mr.
Chairman, and I look forward to working closely with him and I
know that he will be cooperative with the committee and with
you as the Chairman.
So it is my pleasure and heartfelt, positive endorsement of
Mr. Suarez' nomination.
Senator Jeffords. Well, thank you. That's a good start.
Mr. Suarez. It's a wonderful start.
Senator Jeffords. Please proceed.
STATEMENT OF JOHN P. SUAREZ, NOMINATED TO BE ASSISTANT
ADMINISTRATOR OF THE OFFICE OF ENFORCEMENT AND COMPLIANCE
ASSURANCE, ENVIRONMENTAL PROTECTION AGENCY
Mr. Suarez. Thank you, Mr. Chairman and Senator Corzine.
Thank you very much for that wonderful and gracious
introduction.
To the members of the committee, I would like to thank you
for the opportunity to appear before you today to introduce
myself and to talk about my nomination for the position of
Assistant Administrator of the Office of Enforcement and
Compliance Assurance in the Environmental Protection Agency.
First, I must thank the President for his trust and
confidence in nominating me to head the Office of Enforcement
and Compliance Assurance. I must also thank Governor Whitman,
whom I have had the pleasure of working for previously, and I
look forward to doing so again.
I believe that our Nation's environmental laws are
critically important to every American, and I hope to have the
opportunity to enforce those laws to help ensure that all of
us, especially our children, can enjoy cleaner air, purer
water, and better-protected land.
I believe that my background and experience have prepared
me well for this challenging position, and I would like to take
a few moments to describe that for you.
My interest in working in the public sector and serving the
public interest is deep-rooted and comes, in large part, from
the values that were instilled in me by my parents. My father,
whose family hails from Spain, and my mother, who was born and
raised in Nicaragua, believed that public service was a noble
calling and encouraged all of their children to consider
careers in government or in service to others. My brother, who
I introduced earlier, went to the Air Force Academy and now
serves as a Lieutenant Colonel, currently assigned to the
Pentagon, while my oldest sister has nearly completed her
doctoral thesis and hopes to provide counseling and therapy to
minority adolescents. My other sister is a lawyer who works for
her husband. All of my siblings are successes, in my eyes, and
I admire each of them.
When I went to law school at the University of
Pennsylvania, I knew from the moment I entered that I wanted to
make a career as a prosecutor. After I graduated from law
school I clerked for a Federal judge and then applied to the
U.S. Attorney's Office, knowing that this was where I wanted to
start my career. I was, quite fortunately, accepted by the
District of New Jersey and began to develop as a lawyer in a
terrific prosecutor's office. While at the U.S. Attorney's
Office I learned many skills that I believe are essential for a
chief law enforcement officer. I learned how to try cases, how
to manage investigations, and how to be a tough but fair
prosecutor.
I also saw first-hand the tremendous impact that
enforcement can have on the lives and communities of those
affected. I was fortunate to be able to try some difficult and
exciting cases while an Assistant U.S. Attorney, and as a
result of one of those cases--the successful prosecution of an
Atlantic City street gang--I was awarded the U.S. Attorney
General Director's Award.
I was fortunate that I did not lose any of the cases that I
tried while an Assistant U.S. Attorney, and to me, that is a
testament to the quality of the investigators, agents, and
supervisors that I had while in New Jersey.
If I am confirmed for this position, I believe that the
lessons learned while in the U.S. Attorney's Office will have
equipped me well to understand the challenges facing agents,
inspectors, and legal staff who work the front lines of
environmental enforcement actions.
After I left the U.S. Attorney's Office I want to the State
of New Jersey's Division of Criminal Justice, where I was a
Special Assistant to the Director of a 600-person statewide law
enforcement agency. It was there that I began to learn how to
manage attorneys and investigators and how to maintain
constructive relationships with colleagues and other State
agencies, Federal agencies, and the local law enforcement
community. I worked with the Director to shape policy for the
Division of Criminal Justice, and helped launch a number of
statewide initiatives addressing longstanding, entrenched
problems plaguing New Jersey's communities. Through this
experience I learned the valuable lesson of working
cooperatively across organizational lines, with different
agencies, to achieve the best results possible for a law
enforcement program.
Governor Whitman then asked me to join the staff of her
Counsel's Office, where I provided advice to the Chief Counsel
and the Governor on criminal justice matters. It was while
working in that capacity that she nominated me to be the
Director of the Division of Gaming Enforcement, the State law
enforcement agency charged with enforcing the laws and
regulations related to the casino industry. As the head of the
Division of Gaming Enforcement, I oversaw a staff of 400
employees, charged with ensuring the good character and
integrity of the people and businesses who work in that
industry. The Division was comprised of several units,
including a Criminal Enforcement Section, a Civil Regulatory
Prosecutions Unit, an audit function, and a Technical Services
Bureau that dealt with the highly technical hardware and
software associated with the casino industry.
As the Director, I was able to lead the professionals from
the Division in shaping policy and enforcing statutes and
regulations in either the criminal or civil context, and also
to set the agency's enforcement priorities.
I led the Division in the context of its licensing work and
crafted appropriate enforcement responses for various degrees
of statutory violations in both civil and criminal matters.
My experience as the Director of the Division of Gaming
Enforcement provided me the opportunity to use the skills I had
developed as a lawyer with an enforcement background in
evaluating and analyzing the appropriate action to take against
a regulated entity in order to achieve the best results. In
leading a large law enforcement agency with both civil and
criminal responsibilities over a highly regulated industry, I
developed management skills that will serve me well if I am
confirmed to this position.
Mr. Chairman, as is reflected in the summary of my
professional career, I have been involved in criminal or
regulatory enforcement at both the Federal and State level for
over 10 years. My experience in working in very active
enforcement offices has instilled in me a set of what I call
``core beliefs'' that come with being in charge of a government
office. These core beliefs include, first and foremost,
fairness, for I believe that it is incumbent upon a law
enforcement official to use the tremendous resources available
in a fundamentally fair way, lest the entire process lose sight
of the impact that it can have on individuals and communities.
I also believe that as a law enforcement official you can
oftentimes achieve better results by trying to work
cooperatively with those who many would call your adversaries.
Indeed, in my experience in the Division of Gaming Enforcement,
I found that on many issues, even though the industry may have
disagreed with the ultimate decision that was reached, the
process of soliciting industry input and enlisting their
counsel works to ensure a strong cooperative relationship
between the regulated and the regulator.
I also believe that flexibility is a critical component to
a cooperative approach because with flexibility you can
oftentimes achieve the desired result quickly and with lest
cost.
A necessary corollary, however, to a cooperative and
flexible approach, is the willingness to pursue enforcement
actions against those entities who are either unwilling or
unable to conform their conduct to what is required by the law.
In the proverbial carrot-and-stick model, I believe a good
enforcement official has the stick and is not afraid to use it.
Finally, a good enforcement official must have faith in the
system--faith in the legislative process which produces the
laws which we must enforce, and faith in the legal system which
is the forum to which we must turn when controversies and cases
need to be settled. My experience has taught me that the system
works, and it is a system that I have enjoyed being a part of
throughout my career.
My experience, my commitment to public service, and my
fundamental belief that our environmental laws provide the best
guarantee that our Nation's natural resources will be
protected, will allow me to lead the Office of Enforcement and
Compliance Assurance. I can provide strong leadership and can
bring to the office those core beliefs that I think are the
mark of a good enforcement official. I expect to rely fully
upon the experience and expertise of the very accomplished and
impressive dedicated career staff employees in the Office of
Enforcement and Compliance Assurance. I have met many of those
dedicated staff and I am confident in their ability to assist
me in the day-to-day management and policy issues that may
arise.
Mr. Chairman, I would like to assure all the members of
this committee, the President, and Governor Whitman that, if
confirmed, I will apply myself with the same vigor and energy
that have marked my career to date, and that I will work as
long and as hard as necessary to ensure that our Nation's
environmental laws are being enforced as intended by Congress--
firmly and fairly. At the end of the day I will do everything
in my power to live up to the promise that I have made to my
three children, that this planet of ours will be a good and
safe place to live. I will dedicate myself to a comprehensive
enforcement program that will safeguard our water, our air, and
all of our Nation's precious natural resources, because I
believe that enforcement must be a vigorous and active
component of the EPA's efforts to protect our Nation's
resources. I would very much appreciate the opportunity to
apply my experience and my desire to enforce these important
environmental laws that Congress has put in place.
I thank you for your patience this morning and I look
forward to answering any questions that you may have.
Senator Jeffords. Well, I thank you for a very excellent
statement.
We will now proceed to questions. After any members have
had a chance to ask questions, I will conclude the hearing with
two obligatory questions which I will ask you.
Of course, members have the right to submit questions to
you, but I wouldn't lay awake nights worrying about that. So I
think we will just proceed.
For those committee members who are unable to be here
today, they will have some time to ask you questions.
Mr. Suarez, I am concerned that your legal experience has
not dealt with our environmental laws. The responsibility of
the position you have been nominated to fill is a very
important one. Our environmental laws can be rendered
meaningless without adequate enforcement. While there is some
transferability between your criminal enforcement experience
and environmental enforcement, the statutes governing
environmental protection are complex and often require
extensive knowledge as to the underlying case law.
With this reservation, I look forward to your response, but
I would like you to make just a comment or two on that
question.
Mr. Suarez. Yes. Thank you, Mr. Chairman.
One of the things that I can tell you and assure you that
has impressed me already in the Office of Enforcement and
Compliance Assurance is the expertise and experience of the
career staff that will be in the office. There are a little
over 3,300 employees in the Office of Enforcement and
Compliance Assurance, and I fully intend to call upon their
advice and counsel and expertise to help guide me when I start
dealing with some of these complicated environmental
regulations and statutes to which you made reference.
I can also assure you, Mr. Chairman, that I will continue
to learn the law, to learn its application, and to immerse
myself in the detail that is necessary so that I can make
informed policy decisions on the appropriate enforcement
action. And with my enforcement background and experience and
my management skills, I believe, Senator, that I can bring good
leadership to the Office of Enforcement and can enforce our
environmental laws soundly and fairly.
Senator Jeffords. During that experience, did you have any
opportunity to be in Superfund situations in your experience?
Mr. Suarez. I did not have any direct experience with
Superfund. When I was the Special Assistant to the Director in
the Division of Criminal Justice, there was an Environmental
Crimes Section that we did, obviously, supervise, and on a
number of occasions I had interaction with them on some
environmental crimes cases. But Superfund itself was not
implicated in those.
I can tell you, Mr. Chairman, that I believe in the
polluter pays principle. I think that it is an important
principle of our law. And again, I would continue to work very
closely with our Office of Site Remediation and Enforcement if
I am confirmed to this position.
Senator Jeffords. This Administration, through its budget
proposal, has focused on giving more enforcement responsibility
to the States. Would you enlighten me as to what that means and
what your view is?
Mr. Suarez. Mr. Chairman, I do believe that the EPA must
work closely with the Regional Offices, as well as with the
States, who are oftentimes the front lines in inspections and
in enforcement cases, gathering the evidence that is necessary.
But that does not mean that there is an abdication of the role
of EPA's Office of Enforcement. If I am confirmed, I would work
very closely with the Regions and the States to identify those
national cases that have the most significant impact on public
health and the environment, and I would want to make sure that
the resources available to the Office of Enforcement are
directed toward those types of cases, while working
cooperatively with the States and the Regions to make sure that
as many companies are being inspected as possible to make sure
that we have as much compliance as we can get to ensure that
our water stays clean and our air stays pure.
Senator Jeffords. Have you had an opportunity to review
States to see what kind of enforcement they have been doing,
and any feeling as to the effectiveness of State enforcement?
Mr. Suarez. I have not substantively been involved in the
review of State programs, but it is an important part of what
the Office of Enforcement can and should do. I believe that if
a State has a delegated program in any one of the disciplines
that it can accept delegation for, I believe that it is
important for the Office of Enforcement to make sure that the
States are meeting their minimum threshold requirements under
the law, because if a State is going to assume responsibility,
it must ensure that it is in compliance with that Federal
minimum.
I would work with my office to make sure that we have a
level of satisfaction that States are in compliance. If not, I
would work with those States to bring them up to compliance, or
we would evaluate what our options would be.
Senator Jeffords. What is your opinion of State audit
privilege laws, which give a person who voluntarily discloses
environmental violations a shelter from enforcement?
Mr. Suarez. I believe, as I have come to understand the
audit program, that it is a very important component of
enforcement and compliance assurance. I believe that the self-
disclosure or audit program in the EPA is a good program to
encourage companies to engage in voluntary audits so they can
examine their own operations and determine whether or not they
are in compliance with the law, and then take remedial action
quickly, effectively, and efficiently.
I have some concerns about State audit privilege laws that
are not consistent with Federal law. It is my understanding
that there are a number of States that have audit privilege
laws that would bar the use of audit information from
enforcement work. I would want to work with those States and
those Regions to address those concerns, to make sure that
there was no information shielded from enforcement, so that if
there were circumstances where that information was necessary,
it would be accessible to us.
Senator Jeffords. This committee has paid close attention
to the record of enforcement of EPA. Of particular concern is
the ongoing enforcement of new source review. If confirmed,
what will you do to ensure that the new source review cases
continue to be addressed?
Mr. Suarez. Mr. Chairman, I recall some time ago that our
Attorney General indicated that the legal premise upon which
the new source review cases is founded is a sound one, and that
my counterpart in the Environmental and Natural Resources
Section of the Department of Justice has indicated that they
will continue to prosecute those cases.
I can assure this committee that if I am confirmed, we will
continue to investigate new source review cases, and we will
work with the Department of Justice to see that they are
prosecuted.
Senator Jeffords. Thank you.
Senator Corzine?
Senator Corzine. Thank you, Mr. Chairman. I am glad you
asked the new source review question because I think it is very
important that we take a proactive role with regard to air
quality standards that are impacting across State lines. It's
one of those issues that I think we will be watching very
closely in our oversight function as we go forward.
Last year in Governor Whitman's appearance before the
committee in her confirmation hearing, I asked her about the
backlog of Title 6 environmental justice cases, and some of the
concerns within EPA. Have you been briefed on this and on what
progress has been made in eliminating that backlog? And what
are your general views about environmental justice issues?
Mr. Suarez. As to Title 6, Senator, yes, there is a task
force that is working on the backlog. I have been briefed about
its progress and, in fact, had a meeting with the attorney who
is heading that effort. She informs me that they are making
good progress on the backlog and that they have reduced--and I
can get you the exact numbers, Senator, but I think it's about
by one-third. I will bring that information to you.
Insofar as environmental justice is concerned, if
confirmed, I am actually looking forward to working with the
Environmental Justice Office to make sure that the concerns
that are aired through the Environmental Justice Office are
incorporated well into all the Office of Enforcement and
Compliance work and, indeed, throughout the EPA. I don't
believe that any single community, minority or
underrepresented, should bear more of the burden, more of their
fair share, of environmental consequences, and therefore I
would work with our environmental justice program to make sure
that their concerns are heard.
Senator Corzine. Going back to the Superfund
considerations, I am pleased to hear you embrace the concept of
polluter pays. As you know, there has been a major shift in how
the funding of the cleanup of our Superfund sites has taken
place, moving away from that. I think some of that relates to
how aggressive we have been in Superfund enforcement.
Have you had a chance to review those policies, procedures,
and actions within EPA? Are you satisfied that we are doing
everything that we need to do to pursue polluter pay
principles, and what steps do you plan on taking to make sure
that there is a follow-through on that, that we adhere to the
principle?
Mr. Suarez. I have certainly had the benefit of numerous
briefings with our Office of Site Remediation and Enforcement,
which does our Superfund legal work, cost recovery work. I can
assure you, Senator, that if I am confirmed I will work very
closely with the Superfund office to make sure that we continue
to be as aggressive as we can in identifying potentially
responsible parties and get cost recovery from them for our
cleanup efforts. We will continue to try to identify all those
PRPs that can contribute to clean up, and we will work with the
Office of Solid Waste and Emergency Response to clean up--to
identify those sites that are ready for cleanup and to clean up
as many as possible.
I believe that the funding level has remained fairly
static, and I can tell you that we are using the funding that
is available to us to pursue as many actions as we can.
As you mentioned, Senator, Superfund is an incredibly
important program. It is one that I look forward to spending
some time with. I can also tell you from my personal experience
that I have seen both sides of Superfund, because we actually
live about two miles from a successfully cleaned-up site in New
Jersey. It is an area where I've seen both the positives and
the negatives, and it is an area that I would want to make sure
gets the attention it needs in OECA.
Senator Corzine. One of the original premises in the
Superfund legislation was that many oil companies and
refineries, and especially chemical companies, were granted
several liability exemptions as part of the tradeoffs of
responsibilities with regard to polluter pay issues. And as a
consequence, there was a tax imposed as a part of that
negotiating process.
If we are not able to reinstitute the polluter tax, I
wonder if you have a view about whether we should go back and
review this civil liability waiver?
Mr. Suarez. Senator, candidly, I have not looked at the
issue of the civil liability waiver and its interplay with the
Superfund tax. I can tell you that I believe that Superfund
needs funding. Where that comes from is a matter, as I
understand it, for appropriations and for discussions between
appropriations and the Administration. But there is no doubt in
my mind that Superfund needs to be funded.
Senator Jeffords. Senator Boxer?
OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Boxer. Thank you, Mr. Chairman. I would like to
summarize my statement and ask Mr. Suarez a couple questions in
my time.
Mr. Chairman, the Office of Enforcement and Compliance
Assurance, OECA, is very important to me because that office
will enforce the laws that are very dear to my heart and that I
think are essential for the people of this country.
Last August I put a hold on the Administration's first OECA
nominee, Don Chagradas. I did it for a number of reasons,
stemming from a concern that he would do more harm than good to
environmental enforcement, and that concern was based on his
record as head of the Ohio EPA. He had a lot of experience, but
unfortunately he took the side of polluters, not the side of
protecting the environment.
So I was looking forward to the Administration's second
nominee to see who we would come up with, and I am very pleased
to meet Mr. Suarez.
Mr. Suarez, my comments have nothing to do with the quality
of your experience, your intelligence, or anything, but I am
concerned that the Administration, instead of going back and
getting us someone who has stood for cleaning the environment,
essentially gives us a nominee--a good person, a good person--
with no environmental enforcement record.
Again, I would support Mr. Suarez very enthusiastically for
a number of other posts because I know he did a good job as the
Director of the New Jersey Division of Gaming Enforcement. If
he had been appointed to the Department of Justice, that would
have been appropriate. I understand that he was being
considered for a U.S. Attorney position a few months ago. If I
was on the Judiciary Committee, I would support his nomination
for that type of position--even, perhaps, as Deputy Assistant
Attorney General overseeing the Department of Justice's
Organized Crime and Racketeering Section. But for the
environmental enforcement position at EPA, I am looking for
someone who has experience working with environmental laws and
regulations.
I think we need someone who has a working knowledge of the
intricacies of the Clean Air Act, the Clean Water Act, RCRA,
CERCLA. These are not just acronyms; these are complicated
laws, and I think we need someone with an environmental
enforcement background. Well, let's look at who held the
position before.
Steven Hermann, a career environmental litigation attorney
at the DOJ for 15 years before he was nominated; for the last
nine of those he was Assistant Chief of the General Litigation
Section, Environmental and Natural Resources Division. During
this time he received seven outstanding service awards from the
Justice Department, and President Clinton chose him for this
position. There was no question as to why because his
environmental record was comprehensive and compelling.
Now, the Administration sent us a fine person with no
experience on the environment. In many ways, Mr. Suarez is in
an untenable position. He has responded to the call to serve
his country, and I thank him for that. But he has been asked to
enforce environmental laws in an Administration that does not
appear to want them enforced; and furthermore, has ignored
Congress' mandate to provide the personnel necessary to enforce
the laws.
So let me just ask my one question, and then I will save
the others for the second round.
When you were the Director of New Jersey's Division of
Gaming and Enforcement for 3 years, you were responsible for
ensuring the enforcement of one statute, as I understand, the
State Casino Control Act.
Mr. Suarez. Correct.
Senator Boxer. You had a primary charge of regulating one
industry, the casino industry, in one location, Atlantic City,
a very clear and focused position, in which I know you did
well.
Now, as Assistant Administrator of OECA, your
responsibilities would be much broader. There are a number of
environmental laws that you would have to oversee. Out of all
those laws, which do you think are the most pressing for you to
oversee at this time?
Mr. Suarez. Senator, from my first blush in looking at the
law, it seems to me that one of the areas of concern is the
quality of our water and our safe drinking water and going into
the Safe Drinking Water Act, as well. It was identified
previously as a national priority, and one of the things that
struck me was that the overwhelming amount of impaired
waterways, that are impaired due to total coliform levels being
unacceptably high--and as we all know, total coliform will
result in sickness to people with impaired immune systems,
children, the elderly. I don't think, Senator, that anybody
should have to worry about the quality of the water when they
turn on the faucet, and it's those kinds of enforcement actions
and work that I would like to do, to target those areas that
can result in the best result for human health and the
environment, and that's the kind of work that I would do,
working with the very experienced staff in the Office of
Enforcement and Compliance Assurance.
Senator Boxer. Can I follow up with one more?
Senator Jeffords. Certainly.
Senator Boxer. Do you feel the same way about the Clean Air
Act, the Toxic Substances Control Act, the Emergency Planning
and Community Right-to-Know Act, the Resource Conservation
Recovery Act, the Oil Pollution Act, the Comprehensive
Environmental Response, Compensation, and Liability Act,
Superfund, Marine Protection, Research, and Sanctuaries Act,
NEPA--do you feel that these are all important, as well?
Mr. Suarez. Indeed, I do. I can't say that I have a
``favorite child'' with any of them yet. I believe they are all
important and they all come together in a very meaningful way
to ensure our Nation's resources.
Senator Boxer. You're going to have to learn all about
those and you're going to have to move, because, let me tell
you, we're not happy with the enforcement that we see. Congress
keeps telling the Administration, ``Here's the money, hire more
people.'' So I hope you will be a voice at the table that is
going to be strong.
I keep saying it's my last, but this is absolutely my last
question.
You talked about children, and I believe you, and I could
see in your eyes that you mean it. Do you agree with this
Administration's decision to take another look at testing poor
children for lead poisoning and moving away from that
regulation?
Mr. Suarez. I think that is important to make sure,
Senator, that none of our children are subjected to
unacceptably high levels of lead in their homes and their
schools and their water.
Senator Boxer. Thank you, Mr. Chairman.
Senator Jeffords. Thank you, Senator.
We have some more that we would like to submit to you in
writing, and I would like at this time to say that I feel
satisfied, and I would like to ask you the obligatory
questions.
The first one is, are you willing, at the request of any
duly constituted committee of the Congress, to appear in front
of it as a witness?
Mr. Suarez. Yes, absolutely.
Senator Jeffords. Second question. Do you know of any
matters which you may or may not have thus far disclosed which
might place you in any conflict of interest if you are
confirmed in this position?
Mr. Suarez. I am aware of no such matter.
Senator Jeffords. Well, I want to thank you. This will
conclude the hearing, and I----
Senator Boxer. Mr. Chairman, before you do, I have one
question.
Senator Jeffords. Certainly. You go right ahead.
Senator Boxer. It's about Superfund. Since I'm the Chair of
the subcommittee that oversees Superfund and my Chairman has
given me a lot of room to study this. Senator Corzine sits on
the subcommittee.
One of the things we're upset about is that we can't find
out what this Administration is doing in terms of what sites
they're not going to clean up at Superfund, and it's horrible.
And in your State of New Jersey, people are just beside
themselves. And we're having a hard time, as the committee, in
finding out what sites will not be cleaned up.
Will you help us get that information?
Mr. Suarez. You have my word.
Senator Boxer. Thank you.
Senator Jeffords. Well, thank you very much, Mr. Suarez.
Mr. Suarez. Thank you, Mr. Chairman
Senator Jeffords. This concludes the hearing. We will have
a vote at some time in the near future and hopefully we will be
working with you.
Mr. Suarez. Thank you. I would look forward to that, Mr.
Chairman.
Again, thank you, Senators.
[Whereupon, at 11:35 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
[Additional statements submitted for the record:]
Statement of Hon. Barbara Boxer, U.S. Senator from the State of
California
Mr. Chairman, thank you for convening today's nomination hearing.
As you know, finding an experienced and credible individual to fill
this particular position--the Assistant Administrator of the Office of
Enforcement and Compliance Assurance (OECA)--is extremely important to
me.
Last August I put a hold on the Administration's first OECA
nominee, Donald Schregardus. I did so for a number of reasons, all
stemming from a great concern that Mr. Schregardus would do more harm
than good to environmental enforcement. This concern was based on his
record as head of the Ohio Environmental Protection Agency. He had
considerable experience, but he--too often--took the side of the
polluters, not the people or the environment.
Today, as I look at the Administration's second nominee to head
environmental enforcement and compliance, I am again concerned. The
Administration has changed its strategy entirely, going from a nominee
with a bad environmental enforcement record to a nominee with no
environmental enforcement record.
I don't say that to disparage Mr. Suarez, or to imply that his
professional experience--most recently as the Director of the New
Jersey Division of Gaming Enforcement--is not interesting or impressive
in its own right.
I personally think an appointment to the Department of Justice
would be appropriate. I understand he was being considered for a U.S.
Attorney position a few months ago. If I was on the Judiciary
Committee, I would support his nomination for that type of position--or
even perhaps as a Deputy Assistant Attorney General, overseeing the
Department of Justice's Organized Crime and Racketeering Section.
But, for the environmental enforcement position at EPA, I am
looking for someone who has experience working with environmental laws
and regulations. We need someone who has a working knowledge of the
intricacies of the Clean Air Act, the Clean Water Act, RCRA and
CERCLA--not just a familiarity with their acronyms. We need someone who
has not just an enforcement background, but an environmental
enforcement background.
The last person to hold this position--Steven Herman--was a career
environmental litigation attorney at the Department of Justice for 15
years before he was nominated. For the last nine of those he was
Assistant Chief of the General Litigation Section, Environmental and
Natural Resources Division. During this time he received seven
outstanding service awards from the Justice Department. When President
Clinton chose him for this position, there was no question as to why.
His environmental record was comprehensive and compelling.
I was hoping the Administration would send us someone with these
kinds of qualifications. From all I can tell, the Administration has
sent us a fine person--and one who is eminently qualified for any
number of positions. But he has no experience on the environment.
In a way, Mr. Suarez is in an untenable position. He has responded
to the call to serve his country, but has been asked to enforce
environmental laws in an Administration that does not appear to want
them enforced and, furthermore, has ignored Congress's mandate to
provide the personnel necessary to enforce the laws.
Mr. Suarez, I look forward to exploring your environmental record
and environmental commitment today.
Thank you again Mr. Chairman for convening this hearing.
__________
Statement of Hon. Jon S. Corzine, U.S. Senator from the State of New
Jersey
Thank you, Mr. Chairman. I am pleased to introduce New Jerseyan
John Peter Suarez to the committee. Mr. Suarez has been nominated by
President Bush to be the Assistant Administrator for EPA's Office of
Enforcement and Compliance Assurance. I also want to welcome his wife
Natalie and their three young children, daughters Chloe and Laina, and
their 7-week old son Maxwell.
Mr. Chairman, J.P. Suarez has served with distinction as a public
servant in several capacities in New Jersey. He worked as an Assistant
U.S. Attorney in Newark. He later served Governor Whitman as an
Assistant Counsel and as a Special Assistant to the Director of the New
Jersey Division of Criminal Justice. And most recently, Mr. Suarez
served as the Director of New Jersey's Division of Gaming Enforcement.
He has received awards throughout his career, and I believe would bring
a strong enforcement ethic to the EPA.
Mr. Chairman, the laws that EPA implements are designed to protect
public health and the environment. Strong enforcement of these laws is
critical to the people of New Jersey. My State has more Superfund sites
than any other State. And we have continuing problems with air and
water pollution that impact the health of New Jerseyans. So the top
enforcement position at EPA is a critical one for my constituents.
I have met with Mr. Suarez, and he has assured me that he will work
to vigorously enforce these laws. I take him at his word, Mr. Chairman,
and am supporting his nomination. I look forward to working closely
with him to ensure that EPA enforcement is carried out in a way that
protects the health of New Jerseyans and all Americans.
I want to close by congratulating Mr. Suarez on his nomination, and
I look forward to the balance of today's hearing.
__________
Statement of Hon. Bob Smith, U.S. Senator from the State of New
Hampshire
Mr. Chairman, thank you for holding this very important nomination
hearing on Mr. John Peter Suarez, whom the President has nominated to
the position of Assistant Administrator for the Office of Enforcement
and Compliance Assurance at EPA.
Mr. Suarez is a highly qualified attorney as his extensive resume
shows. Mr. Suarez has held a number of outstanding State positions. He
has systematically been promoted to positions that require a greater
level of skill--I believe that this speaks to his ability to grow into
new and more demanding positions.
While his resume documents his consistent success in the jobs that
he has held, I believe that it is also important to make note of his
numerous awards:
N.J. Hispanic Bar Association Honoree
U.S. Attorney's Office Public Service Award Recipient
N.J. State Bar Association Professional Lawyer of the
Year Award
U.S. Attorney's Office Special Achievement Award
U.S. Attorney General Director's Award
Mr. Suarez is also involved in a number of legal societies where he
has shown great leadership--including being selected to the position of
Supreme Court Committee Member for the Hispanic National Bar
Association.
As we are all aware, the Office of Enforcement and Compliance
Assurance works very closely with EPA Regional Offices, State
Governments, and other Federal agencies, to ensure compliance with the
nation's environmental laws.
The Bush Administration is justifiably proud of their environmental
enforcement record, as documented by the following accomplishments in
fiscal year 2001:
On the theory that compliance results in environmental
protection, OECA provided compliance assistance for more than one
million individuals and businesses.
The Administration required violators to reduce an
estimated 660 million pounds of pollutants and treat and safely manage
an estimated 1.84 billion pounds.
As a result of enforcement actions, violators will invest
$4.3 billion in pollution control and cleanup measures--the highest-
ever such investment.
While environmental quality is the most important
yardstick to use in measuring success, the Administration completed 222
civil judicial cases and issued 3,228 administrative orders and field
citations.
Criminal prosecutions resulted in prison sentences
totaling 256 years--an increase of more than 100 years over FY2000--
along with nearly $95 million in fines and restitution.
Finally, supplemental environmental projects--actions a
violator agrees to undertake to protect the environment and human
health--totaled at $89 million--up 60 percent from FY2000.
At this time I would like to submit for inclusion in the record a
fact sheet prepared by the EPA office of Enforcement and Compliance
Assurance.
I look forward to Mr. Suarez building on this record of success.
The Office of Enforcement and Compliance is charged with developing
an approach that integrates compliance assistance, compliance
incentives and innovative civil and criminal enforcement, in order to
maximize compliance and reduce threats to public health and the
environment. From my meeting with Mr. Suarez, I am confident that his
past legal and management experience, energy, and intelligence will be
an invaluable asset to Gov. Whitman and President Bush in that effort.
Mr. Suarez's experience as a State official is also beneficial. The
individual States have shown how effective our environmental laws can
be when compliance and enforcement occurs at the State level in
cooperation with EPA. This cooperation is key to maintaining the
strength of our environmental laws.
I firmly believe that EPA is best suited to a standard-setting and
compliance assistance role, with the States handling the bulk of
enforcement actions. At the same time, EPA should maintain the ability
to aggressively enforce the law itself when necessary.
A report compiled by the Environmental Council of States (ECOS)
documenting State enforcement and compliance success makes an
interesting point. ECOS states that:
`` . . . State enforcement actions are very effective in returning
violating facilities to compliance, and . . . their effectiveness
increases as the severity increases.''
The effective delegation of primary compliance and enforcement
duties by the EPA to State agencies has given our environmental laws
the strong foundation that they need. In fact, States conduct about 90
percent of all enforcement actions.
To assist the States in carrying out these duties, EPA must create
and maintain a more effective means of compiling a nationwide
enforcement and compliance data base. We must not lose sight of the
``big picture'' when it comes to the enforcement of our environmental
laws. EPA oversight of these compliance and enforcement programs is
essential.
Mr. Suarez, I appreciate the sacrifice you are making by continuing
your career as a public servant. I have no doubt that you are up to the
challenge and look forward to moving your nomination through the
Senate.
Thank you, Mr. Chairman.
enforcement accomplishments fiscal year 2001
Issue: Is EPA achieving its goals of requiring a high level of
compliance by the regulated community and of reducing the release of
pollutants into the environment?
Status/Next Steps: EPA's enforcement program achieved tremendous
success in fiscal year 2001, protecting human health and the
environment through record setting amounts in injunctive relief,
significant reductions in pollutant loadings and an estimated reduction
of more than 660 million pounds of harmful pollutants and the treatment
and safe management of an estimated record 1.84 billion pounds of
pollutants, in addition to a significant increase in the commitment on
the part of violators to spend on supplemental environmental projects:
Amount spent by violators and liable parties on pollution
controls and cleanups nearly doubled--from $2.6 billion in FY2000 to
$4.4 billion in FY2001
Civil judicial penalties assessed against environmental
violators nearly doubled--from $55 million in FY2000 to $102 million in
FY2001; civil administrative penalties levied by EPA were down a modest
$1.5 million--from about $25.5 million in FY2000 $24 million in FY2001.
Overall, penalties were way up as our strategy focused on large
judicial cases.
Number of facilities voluntarily auditing and disclosing
violations under EPA's audit policy more than tripled--from 437 in
FY2000 to 1,754 in FY2001
Spending by violators on Supplemental Environmental
Projects was up 60 percent--from $56 million in FY2000 to $89 million
in FY2001
Total years for criminal sentences for environmental
violations rose from 146 years in FY2001 to 256 years in FY2001 as a
result of EPA's strategy to, as a priority, seek jail time for
significant criminal cases.
Criminal fines fell from $122 million in FY2000 to $95
million in FY2001--again, our strategy was to go for jail time
Rationale: By focusing on environmental results or outcomes, such
as the reductions in pollution, and by using all of the tools
available, such as compliance assistance, incentives, and enforcement,
EPA can address the most serious environmental problems and achieve
unprecedented results.
It is significant, for example, that the regulated community
achieved an estimated 660 million pound reduction of harmful pollutants
that otherwise would have been released to the environment and safely
managed an estimated 1.84 billion pounds of pollutants. These results
reflects EPA's shift from routine cases to the reduction, through a
variety of incentives, of the most significant environmental risks and
significant patterns of noncompliance.
Snapshot: End of Year Results FY1999 to 2001 (as of 2-12-02)
----------------------------------------------------------------------------------------------------------------
Activity FY 1999 FY 2000 FY 2001
----------------------------------------------------------------------------------------------------------------
Audit Policy Settlements............. 106 companies.......... 217 companies.......... 304 companies
624 facilities......... 437 facilities......... 1754 facilities
Value of Injunctive Relief........... $3.4 billion........... $2.6 billion........... $4.3 billion
Civil Judicial Penalties............. $141 million........... $55 million............ $102 million
Civil Administrative Penalties....... $25.5 million.......... $25.5 million.......... $24 million
SEPs................................. $237 million........... $56 million............ $89 million
Inspections.......................... 22,000................. 20,000................. 18,000 (est.)
Administrative Actions............... 3500................... 5300................... 3200
Civil Referrals...................... 403.................... 368.................... 327
Criminal Referrals................... 241.................... 236.................... 256
Criminal Sentences................... 208 years.............. 146 years.............. 256 years
Criminal Fines....................... $62 million............ $122 million........... $95 million
----------------------------------------------------------------------------------------------------------------
ENFORCEMENT PROGRAM--CURRENT ACTIVITIES
EPA's enforcement program remains as strong as ever. Since January
2001, we have filed and concluded major enforcement and compliance
actions to reduce and eliminate harmful pollution:
EPA showed record results in fiscal year 2001 from our
enforcement activities--nearly doubling the amount spent by violators
and liable parties on pollution controls and cleanups; more than
tripling the number of facilities voluntarily auditing and disclosing
violations under EPA's audit policy; almost doubling the civil judicial
penalties assessed against environmental violators; and increasing the
spending by violators on Supplemental Environmental Projects by 60
percent
EPA's enforcement activities under the Clean Air Act to
address New Source Review (NSR) violations continue to be vigorous.
Beginning with investigations, of which we have over 100 under way, and
concluding with a filed case or settlement, EPA aims to reduce harmful
air pollution caused by refineries, power plants and other industrial
processes, such as paper mills.1 Our current data shows that--between
January 2001 and March 2002--EPA made 115 information requests; issued
23 Notices of Violation; filed and settled 15 cases, concluding 7 of
them (i.e., they were entered by the appropriate court); and engaged in
numerous other enforcement activities such as depositions, motion
practice and on-going settlement discussions--all to enforce the Clean
Air Act's NSR requirements.
Our NSR enforcement included a major case against a power
plant, PSEG, which alone will reduce the company's emissions of sulfur
dioxide (SO2) by 90 percent and its emissions of nitrogen oxides (NOx)
by more than 80 percent. These decreases represent 32 percent of all
the SO2 and 20 percent of all the NOx emitted from stationary sources
in New Jersey, and 19 percent of all the SO2 and 5 percent of all the
NOx from all sources in the State, including cars and trucks
We issued many imminent hazard orders to address
immediate threats to human health an the environment. For example, EPA
issued two imminent hazard orders under RCRA to Magnesium Corporation
to address dangerous dioxin levels at the facility and the threat to
workers' health from extremely high levels of hexachlorobenzene in
anode dust. EPA also issued two imminent hazard orders against Seaboard
Farms under the Clean Water Act and RCRA to address contaminated
drinking water resulting from hog farm waste.
We also issued an Administrative order (made final on
appeal in April 2001) under RCRA to address imminent threats from the
improper storage and disposal of large volumes of munitions and
unexploded ordnance that had been buried at the Massachusetts Military
Reservation (MMR) on Cape Cod. The emergency order required the
National Guard Bureau to detonate the munitions in a special
``controlled demolition chamber'' that was present at MMR, except for
those munitions and ordnance that were unsafe to move (and which could
be blown in place).
In other words, EPA has, under Administrator Whitman's watch,
successfully addressed environmental violations using the various tools
available, ranging from voluntary incentives to imminent hazard orders.
Concluding cases is no small feat, and we are proud of the
accomplishments achieved since January 2001 and will continue to pursue
enforcement in order to achieve similar results in the future.
These activities reflect EPA's approach to enforcement generally,
which includes the following steps:
Investigate possible violations by gathering information,
e.g., through information requests, citizen complaints, inspections or
other reports;
Review collected information to determine compliance
Issue ``Notices of Violation'' or other formal
notification to the violator to alert them to the violations detected
and give them an opportunity to correct those violations
Enter into negotiations with the violator in an attempt
to reach an agreed upon settlement to resolve the violations
Proceed with formal enforcement by filing a case for
litigation if no resolution of the violations could be achieved.
__________
Statement of Hon. Christopher S. Bond, U.S. Senator from the State of
Missouri
Mr. Chairman, thank you for holding this hearing to consider the
nomination of John Peter Suarez to head EPA's Office of Enforcement and
Compliance Assurance. The enforcement and compliance office, EPA, and
the environment, have gone far too long without new leadership in this
area.
EPA's enforcement and compliance program is at a cross-roads,
between old ways of doing business and new ways that stress what is
best for the environment as the ultimate test for what action to take.
To their credit, the last administration began the process of
modernizing the enforcement program by reorganizing it. That
reorganization recognized that there is more than one way to protect
the environment and ensure people meet their environmental obligations.
EPA can improve the environment by assisting people to understand
and meet their obligations. This is especially true for small
businesses that want to do the right thing but can't wade through EPA's
immense and complicated rules and regulations.
EPA can improve the environment by providing people with incentives
to meet and go beyond their environmental obligations. These incentives
are worth their weight in gold when they fix environmental problems
that would otherwise go unknown or unprotected by traditional
enforcement techniques.
EPA can also protect the environment with traditional enforcement
techniques for the most harmful malefactors. Polluters who
intentionally pollute, or polluters who refuse to fix their problems
deserve strong and stiff punishment.
We understand that the cleaner, cheaper, smarter way to improve the
environment, as Administrator Browner used to say, may not be the
traditional approach. So, she combined all of these elements--
enforcement, assistance, and incentives--into a single enforcement and
compliance assurance office.
However, the transformation is not yet complete. There are still
some that measure commitment to the environment in terms of beans--the
number of cases settled, the number of penalty dollars collected.
Unfortunately, these beans often times have little to do with
protecting or improving the environment.
One example came 2 years ago when EPA sent out nearly 600 letters
to facilities that omitted entries for nitrate compounds on their Toxic
Release Inventory reporting forms. EPA threatened to assess fines
totaling $20,000 per facility for these paperwork violations.
The problem was, other than these violations having no
environmental impact, EPA found them by targeting firms trying to do
the right thing--those actually submitting their forms.
This wasn't a case of a few bad actors. Eighty percent of filers
failed to understand the requirement. Not surprising given that
reporting instructions run several hundred pages. Professional
consulting firms paid to know this requirement missed it. No wonder
that half of those on EPA's hit list were small businesses.
Unfortunately, in the face of no damage to the environment, instead
of helping these people understand their obligations and come into
compliance, EPA's enforcement program went for maximum cases and
maximum penalty dollars.
We need to prosecute forcefully those who intentionally harm the
environment. We should deal harshly with those who refuse meet their
environmental obligation. However, EPA needs to target its limited
Federal enforcement resources in areas and ways that do the most good
for the environment.
The test should not be how to maximize traditional beans, or cases,
or penalty dollars. EPA is not the IRS. They do not exist to collect
money. They are here to protect the environment. I hope the first
question you ask in every case will be: What is the most efficient,
effective way to protect the environment? If you do that, the
environment will benefit from your tenure. Thank you.
__________
Statement of John Peter Suarez, Nominated by the President to be the
Assistant Administrator for the Office of Enforcement and Compliance
Assurance, U.S. Environmental Protection Agency
Mr. Chairman, members of the committee, I would like to thank you
for the opportunity to appear before you today to introduce myself and
talk about my nomination for the position of Assistant Administrator
for the Office of Enforcement and Compliance Assurance (OECA) at the
Environmental Protection Agency (EPA). With me today are my wife,
Natalie, and our three children, Chloe, who is 4 years old, Laina, who
is almost 2, and Maxwell, who is all of 7 weeks old. Also, please
accept my apologies if any or all of them have to leave during this
hearing.
First, I must thank President Bush for his trust and confidence in
nominating me to head the Office of Enforcement and Compliance
Assurance. I must also thank Governor Whitman, for whom I have had the
pleasure of working previously and look forward to doing so again. I
believe that the Nation's environmental laws are critically important
to every American, and I hope to have the opportunity to enforce those
laws to help ensure that all of us, especially our children, can enjoy
cleaner air, purer water, and better protected land for years to come.
I believe that my background and experience have prepared me well
for this challenging position, and I would like to take a few moments
to describe that for you. My interest in working in the public sector
and serving the public interest is deep-rooted, and comes in large part
from the values instilled in me by my parents. My father, whose family
hails from Spain, and my mother, who was born and raised in Nicaragua,
believed that public service was a noble calling, and encouraged all of
their children to consider careers in government or in service to
others. My brother went to the Air Force Academy and now serves as a
Lt. Colonel in the Air Force assigned to the Pentagon, while my oldest
sister has nearly completed her doctoral thesis and hopes to provide
counseling and therapy to minority adolescents. My other sister is a
lawyer who works for her husband's company. All of my siblings are
successes in my eyes, and I admire each of them.
When I went to law school at the University of Pennsylvania, I knew
from the moment I entered that I was interested in pursuing a career as
a prosecutor. After I graduated from law school, I clerked for a
Federal judge and then applied to the U.S. Attorney's Office, knowing
that this was where I wanted to start my career. I was, fortunately,
accepted by the District of New Jersey, and began to develop as a
lawyer in a terrific prosecutor's office.
While at the U.S. Attorney's Office I learned many skills that I
believe are essential for a chief law enforcement officer. I learned
how to try cases, how to manage investigations, and how to be a tough
but fair prosecutor. I also saw first hand the tremendous impact that
enforcement can have on the lives of those affected. I was fortunate to
be able to try some difficult and exciting cases, and as a result of
one of those cases, the successful prosecution of an Atlantic City
street gang, I was awarded the U.S. Attorney General Director's Award.
I was fortunate that I did not lose any of the cases that I tried, and
to me that is a testament to the quality of the agents and supervisors
with whom I had the pleasure of working.
If I am confirmed for this position, I believe that the lessons
learned while in the U.S. Attorney's Office have equipped me well to
understand the challenges facing agents, inspectors, and legal staff
who work the front lines in environmental enforcement actions.
After I left the U.S. Attorney's Office, I went to the State of New
Jersey's Division of Criminal Justice, where I was the Special
Assistant to the Director of a 600-person statewide law enforcement
agency. It was there that I began to learn how to manage attorneys and
investigators, and how to maintain constructive relationships with
colleagues in other State agencies, Federal agencies, and the local law
enforcement community. I worked with the Director to shape policy for
the Division of Criminal Justice, and helped launch a number of
statewide initiatives addressing long-entrenched problems plaguing New
Jersey's communities. Through this experience, I learned the valuable
lesson of working cooperatively across organizational lines and with
different agencies to achieve the best results for law enforcement
programs.
Governor Whitman then asked me to join the staff of her Counsel's
Office, where I provided advice to the Chief Counsel and the Governor
on criminal justice matters. It was while working in that capacity that
Governor Whitman nominated me to be the Director of the Division of
Gaming Enforcement, the State law enforcement agency charged with
enforcing the laws and regulations related to the casino industry.
As the head of the Division of Gaming Enforcement, I oversaw a
staff of 400 employees charged with ensuring the good character and
integrity of the people and businesses who worked in the industry. The
Division was comprised of several units, including a criminal
enforcement section, a civil regulatory prosecutions unit, an audit
function, and a technical services unit that dealt with the highly
sophisticated computer software and hardware of the gaming industry. As
the Director, I was able to lead the professionals from the Division in
shaping policy and enforcing statutes and regulations, in either the
criminal or civil context, and also to set the agency's enforcement
priorities. I led the Division in the context of its licensing work,
and crafted appropriate enforcement responses for various degrees of
statutory violations in both civil and criminal matters.
My experience as the Director of the Division of Gaming
Enforcement, provided me the opportunity to use the skills I had
developed as a lawyer with an enforcement background in evaluating and
analyzing the appropriate action to take against a regulated entity in
order to achieve the best result. In leading a large law enforcement
agency, with both civil and criminal responsibilities over a highly
regulated industry, I developed management skills that will serve me
well if I am confirmed as Assistant Administrator for the Office of
Enforcement and Compliance Assurance.
As is reflected in the summary of my professional career, I have
been involved in criminal or regulatory enforcement at both the Federal
and State level for over 10 years. My experience working in very active
enforcement offices has instilled a set of core principles that come
with being in charge of a government enforcement office. These core
principles include:
First is fairness, for I believe that it is incumbent upon a law
enforcement official to use the tremendous resources available in a
fundamentally fair way, lest the entire process lose sight of the
impact that it can have on individuals and communities.
I also believe that as a law enforcement official, you can often
times achieve better results by trying to work cooperatively with those
who many would call your adversaries. Indeed, in my experience in the
Division of Gaming Enforcement, I found that on many issues, even
though the industry may have disagreed with a decision that was
reached, the process of soliciting industry input and enlisting their
counsel worked to ensure a strong cooperative relationship between the
regulator and the regulated. I also believe that flexibility is a
critical component to a cooperative approach, because with flexibility
you can often times achieve the desired result quickly and with less
cost.
As a necessary corollary to a cooperative and flexible approach,
however, is the willingness to pursue appropriate enforcement actions
against those entities who are either unwilling or unable to conform
their conduct to what is required. In the proverbial ``carrot and
stick'' model, I believe that a good enforcement official has the stick
and is not afraid to use it.
Finally, a good enforcement official must have faith in the system;
faith in the legislative process, which produces the laws that we must
enforce; and faith in the legal system, which is the forum that we must
turn to when controversies and cases need to be settled. My experience
has taught me that the system works, and it is a system that I have
enjoyed being a part of throughout my legal career.
My experience, my commitment to public service, and my fundamental
belief that our environmental laws provide the best guarantee that our
Nation's natural resources will be protected, will allow me to lead the
Office of Enforcement and Compliance Assurance. I can provide strong
leadership, and can bring to the Office those core beliefs that I think
are the mark of a good enforcement official. I expect to rely fully
upon the experience and expertise of the very accomplished and
dedicated staff of career employees in the Office of Enforcement and
Compliance Assurance. I have met many of these dedicated staff and I am
confident in their ability to assist me in the day-to-day management
challenges and policy issues that may arise.
I would like to assure all of the members of this committee, the
President and Governor Whitman, that if confirmed I will apply myself
with the same vigor and energy that have marked my career to date, and
that I will work as long and as hard as necessary to ensure that our
Nation's environmental laws are being enforced as intended by Congress
firmly and fairly.
At the end of the day, I will do everything in my power to live up
to the promise that I have made to my three children, that this planet
of ours will be a good and safe place to live. I will dedicate myself
to a comprehensive enforcement program that will safeguard our water,
our air and all of our Nation's precious natural resources.
I believe that enforcement must be a vigorous and active component
of the EPA's efforts to protect our natural resources, and I would very
much appreciate the opportunity to apply my experience and my desire to
enforce the important environmental laws that this Congress has put in
place.
I thank you for your patience this morning, and I am pleased to
have this opportunity to answer any questions that you may have.
______
Responses of John Peter Suarez to Additional Questions from Senator
Jeffords
Question 1. EPA Regional Offices are reportedly cutting enforcement
office personnel in order to meet staffing reductions that the Bush
Administration had originally proposed to implement by attrition in the
agency's fiscal year 2002 budget request. What is the current staff of
the total enforcement office?
Response. It is my understanding that EPA Regional offices continue
to manage their enforcement positions in a manner consistent with the
Agency's fiscal year 02. budget as passed by Congress last Fall.
Indeed, a current analysis shows projected Regional FTE utilization in
enforcement is on target to meet the authorized level of 2,516.6 FTE.
Projected FTE utilization for Headquarters and field (non Regional)
components is currently 848.2 FM for a total end of year enforcement
FTE projection of 3,366.7 (2,518.5 + 848.2),
Question 2. Will you support further reductions in EPA enforcement
personnel through attrition?
Response. If confirmed, I intend to examine closely the resources
and staffing levels and the allocation of those resources and staff to
ensure that OECA is directing its resources to those areas where the
most significant public health and environmental problems exist. If
there is an identified need for more staff or resources, then I would
represent and advocate for the Office's interests during the budget
process, to ensure that adequate resources are being devoted to the
mission of enforcement and compliance.
Question 3. Do you think that the Enforcement division is currently
overstaffed and whether such moves are warranted?
Response. I have not yet had the opportunity to analyze the
staffing needs of OECA, but intend to do so if confirmed. I believe
that a careful examination of how resources are allocated would be
helpful in evaluating whether our staffing needs are being adequately
met, and I will endeavor to undertake such an analysis if confirmed. I
am aware that the breadth of work required of OECA staff is expansive,
and necessarily requires a sizable staff to perform effectively the
mission of enforcement and compliance.
Question 4. If confirmed, will you pledge to keep this committee
appraised, in a timely fashion, of EPA enforcement staffing levels,
enforcement staff vacancies, and the exact number of completed civil
and criminal investigations and inspections?
Response. Yes. I will also work with the committee to ensure that
information regarding completed investigations and inspections is
accompanied by adequate explanations, so that an accurate picture of
OECA's work is provided. Moreover, I will also provide the committee
with information relating to other performance measures, such as
environmental impacts and pollution reductions achieved, so that the
committee has a broad view of the accomplishments of the Office.
Question 5. I have seen reports saying that regional enforcement
staff are being asked to focus more on compliance assistance than on
traditional enforcement. Please discuss your views on EPA compliance
assistance activities.
Response. I believe that compliance assistance, especially in the
context of small businesses, is an integral part of the mission of
OECA. Compliance assistance can often times bring more entities into
compliance quicker by providing the entities with the information and
assistance they need to conform their operations to what is requited by
law. I also believe that a good compliance assistance program should be
integrated into the core of the Office's work, so that it is available
to be used when appropriate. However, I also believe that there are
many instances where traditional enforcement actions, in either the
criminal or civil context, are the appropriate first course of action
and should be pursued notwithstanding the existence of a compliance
assistance program. I therefore believe that a combination of
compliance and enforcement efforts, in the proper balance, can achieve
the best environmental results.
______
Responses of John Peter Suarez to Additional Questions from Senator
Smith
Question 1. Does the anticipated retirement of a large number of
upper and mid-level EPA staff extend to OECA? If so, what steps would
you recommend taking to fill those positions in order to avoid a
negative impact on compliance and enforcement?
Response. I am not aware of an anticipated ;departure of upper and
mid-level staff in OECA in the immediate future. However, in order to
assist with management challenges, the Agency recently began an 'Senior
Executive Service mobility'' program whereby senior managers were given
the opportunity to move to new and challenging positions within EPA.
The result of this mobility program is that several senior staff have
been assigned to various offices within the Agency, providing new
leadership to the. offices. Within OECA, a new Deputy Assistant
Administrator was named to the staff, along with a new office director
for the Office of Regulatory Enforcement and a new Associate Assistant
Administrator. All of these positions were filled by people with
extensive experience in environmental law, and I expect that they will
provide significant stability and leadership to OECA.
Question 2. Mr. Suarez, what kind of skills could you bring to the
position of Assistant Administrator for EPA's Office of Enforcement and
Compliance Assurance from your previous positions in public service?
Response. My professional background and experience is in
enforcement work, in either the criminal or civil context, and I have
been involved in prosecuting cases for my entire legal career. My
skills include an ability to analyze the strengths and weaknesses of
cases and thereby develop sound strategies on how to pursue an action,
and also the ability to guide investigations so that whatever evidence
is available is identified and developed properly--I also have a firm
grasp on the challenges confronted when negotiating settlements or
resolutions of cases, and believe that this skill will serve me well if
confirmed. I also attempt to utilize a proactive approach to addressing
problems or potential problems, so that the agencies I have been
leading are able to take action before an issue escalates. In my
previous experiences, I have also learned to work with diverse
stakeholders, including industry, licensees, law enforcement,
attorneys, and advocacy groups when developing or implementing
programs. Finally, I believe my strong work ethic and proven ability to
lead a large organization with an enforcement mission will help
strengthen OECA.
Question 3. Mr. Suarez, why do you think you are qualified to head
the Office of Enforcement and Compliance Assurance?
Response. My extensive background in enforcement programs with
civil and criminal responsibilities, my successful management of large
enforcement agencies, and my firm belief in the importance of our
nation's environmental laws provide me with the experience and
perspective that is necessary to head OECA.
Question 4. Please explain to this committee your experience in
providing management to large organizations.
Response. My first experience in coordinating a law enforcement
program came when I was in. the U.S. Attorney's Office and was named to
serve *as the liaison to the Camden/Philadelphia High Intensity Drug
Trafficking Area (HIDTA) Task Force. As the liaison for the U.S.
Attorney's Office, I served to coordinate the program with our State
and regional partners to ensure that our interests were preserved and
that resources and priorities relevant to the Camden area were
addressed by the Task Force, I then became the Special Assistant to the
Director for the Division of Criminal justice, the statewide law
enforcement agency in New Jersey. As the Special Assistant, I served as
the director's principal assistant and helped him establish and enforce
policies for a 600-person agency, including the identification of
statewide enforcement priorities. I also coordinated enforcement
activities with the 21 county prosecutors' offices and with the Federal
and local law enforcement agencies.
Thereafter, I served as the Director of the Division of Gaming
Enforcement, the State law enforcement agency charged with enforcing
the laws relating to the casino industry--in New Jersey. As the
Director, I led a 400-person law enforcement agency that included
criminal investigators, prosecutors, civil investigators, auditors,
attorneys, accountants, computer specialists, and other professionals.
As the Director, I established our enforcement priorities, led the
Division in licensing matters, and guided numerous criminal and civil
investigations. I also reviewed and approved all significant
settlements with the regulated entities to ensure that the settlements
were consistent with the Division's enforcement philosophy--Finally, I
was responsible for proposing changes to the regulatory or legislative
process that I felt were necessary to improve the Division's operations
and to ensure that the integrity of the licensees and the industry was
never compromised.
Question 5. What is your enforcement philosophy?
Response. I believe that first and foremost, a good enforcement
official must be fair. Fairness must extend to all of the participants
and stakeholders in the process, so that no side or perspective is
excluded. Second, I believe that a good enforcement official must be
willing to engage in a cooperative approach to achieving the results
desired, and should always try to find areas where common interests
merge. I also believe that flexibility is a critical component of a
cooperative approach, and often times allows for solutions to problems
or concerns quickly and efficiently. Third, I believe that a good
enforcement official is not hesitant to take aggressive enforcement
actions where appropriate. Indeed, I believe that a willingness and
proven ability to pursue enforcement actions will serve as a deterrent
to others and will serve to bring entities into compliance. Finally, I
believe that enforcement officials must have faith in the laws and
faith in the process for-enforcing them. I believe good enforcement
'officials should be willing to express their views when shaping policy
decisions, but must also enforce the policy decisions that are reached,
firmly and fairly.
Question 6. What do you think will be some of the challenges facing
you as the Assistant Administrator for the Office of Enforcement and
Compliance Assurance? How do you plan to address these challenges?
Response. One of the significant challenges facing OECA in the
immediate future will be in identifying and setting national
priorities. In order to utilize the resources of the Office most
effectively, those national priorities that have the most significant
impact on public health and the environment must be identified, and a
commitment must then be made to use OECA's resources to pursue those
areas. If confirmed, I expect to work very closely with the ten Regions
and the States to help identify possible national priorities for OF-CA
and to then put in a place a plan for addressing and targeting the
national priorities. Another challenge facing the Office is in the
consistency of Enforcement actions throughout the Nation. I anticipate
working with the Regional Administrators and regional enforcement
coordinators to ensure that there is consistency in the enforcement
work throughout the Nation. I also believe that there are more
opportunities to provide better compliance assistance to certain
sectors, especially certain sectors with large percentages of small
businesses, and I will work with the Office of Compliance to identify
those sectors and to coordinate compliance assistance efforts. Finally,
I believe a significant challenge will be in the area of Superfund
management, and if confirmed I will work closely with the Office of
Site Remediation Enforcement and the Office of Solid Waste and
Emergency Response to ensure that potentially responsible parties are
being identified and pursued for cost recovery actions, and that as
many National Priorities List sites are cleaned as is possible.
Question 7. What kind of support will you put in place to help your
transition into this new position?
Response. Within the immediate office of the Assistant
Administrator, there is a Principal Deputy Assistant Administrator and
a Deputy Assistant Administrator, along with an Associate Assistant
Administrator, all of whom have extensive experience with environmental
laws and enforcement. All of the office directors of the constituent
parts of OECA are also located in Headquarters, and together this staff
will provide me with an incredible amount of experience and expertise
in environmental enforcement. If confirmed, I intend to work very
closely with all of the senior management and staff in OECA, and to
call upon them for their advise and counsel on all important issues. I
will work with my staff experts, other Assistant Administrators, and
Office of General Counsel to ensure that I have the necessary
information in order to make informed decisions.
Question 8. You mentioned in your statement that you prosecuted
cases at the Division of Gaming Enforcement. Please explain the outcome
of these prosecutions.
Response. During my tenure as the Director, the Division prosecuted
hundreds, if not thousands, of enforcement cases against some of the
more than 50,000 licensees in the industry. The enforcement cases
ranged from minor infractions of regulations to significant violations
that resulted in the revocation of an entity's or individual's license
to do business. I personally prosecuted several high profile cases,
including a case against Park Place Entertainment (formerly Bally's)
for improperly engaging the services of a public official in Florida
and then paying him to do little or no work. The results of that case
were that Park Place was required to agree to extensive monitoring and
reporting of its operations to the Division, and was also required to
implement an extensive compliance program. Another noteworthy case that
I personally prosecuted involved the President of Caesar's Atlantic
City Casino. In that case, the President of Caesar s engaged in a
pattern of misconduct and deceit, including misrepresenting certain
facts to the Division and withholding information, that led the
Division to seek revocation of his license. As a result of that
prosecution, the President's license was revoked, and he was barred
from working in the casino industry in any capacity for 5 years.
Question 9. How do you measure success of your organization?
Response. I believe that success should be measured by outcomes,
and not purely by numbers or statistics. For OECA, I believe its
success can and should be measured by the benefit of the outcomes it
has achieved, and by the improvement in public health and the
environment that is achieved through its enforcement work. Identifying
the number of cases pursued or investigations completed can be a
helpful guide in measuring success, but the measure should also include
other variables such as scope of the work and impact on our
environment.
Responses of John Peter Suarez to Additional Questions from Senator
Corzine
TITLE VI: STATUS REPORT IN RESOLVING BACKLOG OF COMPLAINTS
Question. What is the current status of EPA's efforts to resolve
the backlog of compliance that have been filed under Title VI of the
Civil Rights Act and to ask you for a status. report on their
resolution.
Response. Administrator Christine Todd Whitman announced the
formation of the Title VI Task Force in May 2001. The Task Force was-
charged with resolving the backlog of administrative complaints filed
with EPA alleging violations of Title VI of the Civil Rights Act of
1964 and EPA's Title VI regulations.
When Administrator Whitman announced the creation of the Title VI
Task Force in May 2001, the Title VI complaint backlog consisted of 66
open Title VI complaints. Twenty-one of those complaints had been
accepted for investigation. Forty-five complaints were still ``under
review,'' meaning that EPA hid not yet made a jurisdictional
determination whether to accept them for investigation, reject them, or
refer them to another agency for appropriate action.
As of May 7, 2002, EPA has made jurisdictional determinations on
all ``under review'' complaints, with the exception of five complaints
which are held in suspension pending the outcome of parallel related
litigation. The complaint backlog assigned to the task force has
currently been reduced to 38, several of which are very close to
resolution. Below is a summary status report:
Current Status of Title VI Cases (66 cases filed)
------------------------------------------------------------------------
------------------------------------------------------------------------
Resolved after investigation 2
initiated.
Rejected........................... 20
Withdrawn.......................... 6
Referred........................... 1
Currently under investigation...... 27
Suspended for pending litigation... 5
Held for informal resolution or ADR 5
------------------------------------------------------------------------
______
Responses of John P. Suarez to Additional Questions from Senator Wyden
Question 1. In your testimony you stated that you believe in the
polluter pays principle. Since the current Administration has taken the
position on Superfund--EPA's most costly program--that the tax on
industries responsible for environmental contamination should not be
re-instituted, the burden for the nation's toxic cleanup will fall, not
on the polluter, but on taxpayers. How do you plan to reconcile your
belief in the polluter pays principle with the Administration's view?
Response. I am firmly committed to the polluter pays principle. It
is my understanding that although the tax on industries has expired,
EPA has continued to pursue potentially responsible parties (PRPs) to
contribute to clean up costs at sites identified on the National
Priorities List. I plan to continue EPA's success in maximizing the
participation of responsible parties at Superfund sites. As is
reflected on the accompanying charts, OECA continues to work to
identify and pursue PRPs, and its work has ensured that in over 70
percent of the long-term Superfund cleanups , PRPs have borne the cost
of that cleanup. Since the inception of Superfund, responsible parties
have committed more than $20 billion to clean up or to reimbursing
EPA's costs. My understanding is that in only those instances where
there is no identifiable PRP or where the PRP is not able to pay for
site cleanup, then moneys from the Superfund Trust Fund will be used to
take remedial action. If confirmed, I will ensure that OECA continues
to aggressively pursue PRPs and cost recovery actions against those
entities, while applying the guidelines of EPA's Administrative
Reforms, to ensure that as many sites as possible are being cleaned or
remediated by the polluters themselves in a fair manner. EPA's
enforcement program has been successful in making the polluter pay, and
I will make every effort to continue these impressive accomplishments.
Question 2. When we met in my office and again in your written
testimony, you spoke of the expertise of the EPA enforcement staff and
how you will rely on that expertise to help you enforce the nation's
complex environmental laws. Generally, individuals come to an executive
position with years of experience upon which they base high-level
decisions, but given your inexperience with environmental law, when
faced with a difficult choice, on what will you base your decision when
the advice of your staff conflicts with that of equally forceful
industry advocates?
Response. As is reflected in my resume, my background includes many
years of experience in executive enforcement decisionmaking roles,
including as the Director of a statewide law enforcement agency in
which I was responsible for making policy decisions affecting
significant interests. To the extent that an issue arises in which
there are competing views between EPA staff and industry advocates, I
will attempt to gather and analyze as much information as possible from
all of the stakeholders in an issue, and then make an informed decision
that is based upon that information and analysis. The most significant
factors in such an analysis will be the relevant Federal law coupled
with an evaluation of the environmental and human health impact as a
result of the decision to be made.
Question 3. The Public Employees for Environmental Responsibility
(PEER) distributed a data package to the Senate detailing your record
of prosecutions in New Jersey. This information suggests that you have
been involved in only a small number of criminal prosecutions, many of
which the State lost. It is my understanding that when you met with the
Senate staff on May 6, 2002, you stated that you believe this
information to be false and that it misrepresents your record. After
investigating PEER's data my staff learned this information originated
with Transactional Records Access Clearinghouse, an organization which
receives data directly from the offices of the U.S. Attorney's General,
and that has a proven reputation for reporting accuracy. Would you
explain this discrepancy and please provide the committee with
documents which verify your assertions regarding your record of
prosecutions?
Response. I am not familiar with the Transactional Records Access
Clearinghouse, nor am I familiar with what other sources PEER relied
upon when gathering their data, so I cannot comment on those sources or
their reliability. However, several major discrepancies between what is
reported and what is accurate are apparent. What is clear is that my
record as an Assistant U.S. Attorney, as the Special Assistant to the
Director of the Division of Criminal Justice, and as the Director of
the Division of Gaming Enforcement is marked by productivity and
effective and aggressive enforcement. For example, as is reflected in
the letter of endorsement received from Michael Guadagno, Chief of the
Fraud and Public Protection Division of the U.S. Attorney's Office in
New Jersey and one of my former supervisors, I was one of the most
productive members of the Office and I never lost a case that I tried.
I received the U.S. Attorney General's Directors Award from Attorney
General Janet Reno for the successful prosecution of the Abdullah's, an
Atlantic City street gang. As is reflected in my performance
evaluations, copies of which are attached, I consistently received the
highest possible rating for AUSA's in the U.S. Attorneys Office, and my
supervisors comments reflect that my productivity and performance was
among the best in the office. I received the New Jersey State Bar
Association Professional Lawyer of the Year Award for 1999, which
speaks to my integrity and professionalism as recognized by the State
Bar, and was honored by the New Jersey Hispanic Bar Association for my
leadership and success in the legal community. I was the lead
prosecutor in several other high profile cases, including the
successful prosecution of the former President of the Camden City Board
of Education (US v. Bey) for her theft of honest services from the city
of Camden, and the successful prosecution of the clerk to the Supreme
Court of New York for tax evasion (US v. Rakov). My record in New
Jersey reflects in many ways my views of effective enforcement, in that
a good enforcement official must be willing and able to use the tools
available, such as criminal prosecution, to ensure that people and
entities are complying with their legal obligations.
Summary of Trials Prosecuted by John Peter Suarez
Assistant U.S. Attorney in the District of New Jersey, September 1992-
January 1998
1. United States v. Rita Fabiani and William Richman; Spring 1997;
before Hon. Mary Little Cooper. A husband-and-wife bank fraud, wire
fraud, and money laundering case arising out of the investigation into
a multi-million dollar Ponzi scheme operated by Fabiani and Richman.
Defendants would entice investors to purchase foreclosed properties to
be immediately resold for a substantial profit. Defendants used all
proceeds to maintain a lavish lifestyle and stole over 8 million from
investors. Defendant Richman proceeded to trial (wife was found
incompetent due to head injury suffered after indictment). First trial
resulted in a hung jury. Second trial began about 3 weeks after the
first, and resulted in a guilty verdict. Defendant Richman sentenced to
approximately 70 months imprisonment.
2. United States v. Anthony Iezzi; Spring/summer 1996; before Hon.
Joseph H. Rodriguez. A bank fraud case arising from the investigation I
led in the Fabiani/Richman Ponzi scheme case (see item below).
Defendant found guilty and sentenced to prison.
3. United States v. Robert ``Hanif Abdullah'' Simpson, et al.;
Winter 1996; before Judge William Bassler. A 22-defendant drug
conspiracy and distribution case, along with RICO charges for attempted
murder, against an Atlantic City street gang operating out of the
Resort Courts housing projects. These 22 defendants, along with 2-3
others, were known as the ``Abdullahs'' and were selling heroin and
cocaine in the projects for years. Myself and another AUSA (Jeremy
Frey) conducted a 6-month wiretap of various telephones used by the
defendants, then indicted them. Trial began in January 1996 with six
defendants proceeding to trial, and during the course of 2 months of
trial, every defendant eventually pleaded guilty. Lead defendant
received a sentenced of 188 months imprisonment, with all the others
sentenced to prison terms (except for the wife and girlfriend). NOTE: I
received the Attorney General Director's Award from Janet Reno for this
successful prosecution, received a letter of commendation from Director
Louis Freeh of the FBI, and received an honorary resolution from the
Atlantic City Council thanking us for the efforts in conjunction with
this prosecution.
4. United States v. Harris Rakov; Winter 1995 (?); before Judge
Alfred J. Lechner. A tax fraud case against the clerk of the New York
court system for filing false tax returns in which he failed to declare
as income interest that he received on loans that he had given to
friends and colleagues. Defendant found guilty.
5. United States v. Rodolfo Bethancourt, et al.; Summer 1994;
before Judge Garrett E. Brown. A multi-defendant drug importation
conspiracy case, in which the defendants agreed to ship cocaine through
McGuire Air Force Base. Defendant Bethancourt went to trial, and was
found guilty and sentenced to at least 10 years.
6. United States v. Vincent and Susan Maglione; May 1994; before
Judge Joseph H. Irenas. A husband-and-wife tax protestor tax fraud
case, in which the defendants would send fictitious tax liens to people
and attempt to collect through the IRS/tax returns. Both went to trial,
he before the judge, she before a jury. Both found guilty. Husband
sentenced to jail, wife sentenced to probation over the objection of
the Government.
7. United States v. (M/V Targa case); 1993; before Judge H. Lee
Sarokin. A multi-defendant drug importation conspiracy case. Defendants
were crewmembers of the M/V Targa who transported large quantities of
cocaine from Central America to the Port of Newark for sale. At least
one defendant (a Philipino crew member) went to trial, and was found
guilty. Sentenced to at least 10 years imprisonment.
8. United States v. Sassman; November 1993; before Judge Jerome B.
Simandle. A theft of interstate commerce conspiracy. Multi-defendant
case, with one defendant going to trial and found guilty and sentenced
to prison.
9. United States v. ; summer/fall 1993; before Judge Dickinson
Debevoise. A drug distribution case arising from the Trenton Weed &
Seed program. Defendant found guilty and sentenced to prison.1
10. United States v. Fahim Sabir, et al.Spring of 1993 (with Patty
Shwartz), before Judge Dickinson Debevoise. Multi-defendant drug
distribution conspiracy case. Both defendants that went to trial were
found guilty. Nadeem Sheikh sentenced to 72 months; Jang Baz Kahn
sentenced to 72 months.
The above summary reflects 11 trials (one was a retrial due to a
hung jury), all of which, including the case with the hung jury,
resulted in the defendants who went to trial being found guilty. No
defendant was ever acquitted in a trial I prosecuted.
A couple of other noteworthy prosecutions: I was the prosecutor who
investigated the allegations of fraud and abuse in the Camden School
Board. As a result of our investigation, the President of the School
Board, Elaine Bey, pleaded guilty to theft of honest services, and was
sentenced to prision. (United States v. Elaine Bey). I also began the
investigation into allegations of corruption by former Mayor of Camden
Arnold Webster. While I was working on the case, we put many witnesses
in the grand jury and learned that Mayor Webster had embezzled funds
from Camden by continuing to receive his salary as School
Superintendent while serving as Mayor. We also learned that Mayor
Webster had collected vacation and sick leave for which he was not
entitled. The case was resolved after I left the office by way of plea
to tax charges.
I also investigated and prosecuted the theft of client funds by an
accountant (United States v. Dudnick), which resulted in a guilty plea
and prison sentence for the defendant; the theft of funds by a bank
manager from the Farmers & Merchants Bank (United States v. Lapsins);
and I began the investigation into campaign finance violations by
business executives during the 1996 Presidential election. While
assigned to the Trenton office, I prosecuted several significant weed
and seed cases, including United States v. Ernest Wilkerson, a career
offender and public employee from the city of Trenton who was selling
crack cocaine, and United States v. Salim Davis, in which the defendant
was convicted after he sold both a firearm and drugs to undercover
agents. In addition to these cases, while in the Frauds and Public
Protection Division, I prosecuted United States v. Michele Carnevale et
al., a case involving the interstate shipment of child pornography. In
this case, the search of the defendants house discovered a substantial
amount of child pornography and other obscene material, and resulted in
both defendants pleading guilty.
In addition to the Attorney General Director's Award, the U.S.
Attorney for the District of New Jersey awarded me a Special
Achievement Award for my efforts in the office. I was also honored by
the N.J. State Bar Association as one of their Professional Lawyers of
the Year for 1999, and was also a Hispanic Bar Association Honoree for
my work in the legal community and my leadership in the Hispanic
community.Excerpts of Performance Evaluations for
______
Job Performance Evaluations While an Assistant U.S. Attorney
While serving as an Assistant U.S. Attorney in the District of New
Jersey, I received 4 yearly performance evaluations. The following
summarized the results of those evaluations:
1. Jan. 1993-Dec. 1993--Rated Excellent (2d highest possible
rating); comments from my evaluation include such observations as Mr.
Suarez ``is well on his way to becoming a truly outstanding Assistant
U.S. Attorney . . .'', and that he ``is a very gifted trial lawyer . .
. and is one of our best young trial lawyers.''
2. Jan. 1994-Dec. 1994--Rated Outstanding (Highest possible
rating); comments include ``Mr. Suarez consistently enhances the
mission of the Office with respect to the development and prosecution
of cases . . . displaying virtually without exception, habits of
productivity and dependability which ensure that all assigned cases are
processed efficiently and expeditiously with a minimum of supervisory
resources, [and] regularly seeks more challenging case assignments . .
.''
3. Jan. 1995--Dec. 1995--Rated Outstanding (Highest possible
rating); comments include ``Mr. Suarez has effectively and
enthusiastically handled a challenging caseload. He is an extremely
efficient and hard worker . . .'' and that ``Mr. Suarez has
demonstrated outstanding judgment in determining which cases should be
prosecuted and which cases should be declined.''
4. Jan. 1996--Dec. 1996--Rated Substantially Exceeds Expectations
(Highest possible rating); comments include that Mr. Suarez
``enthusiastically takes on additional work and continues to be a
favorite of agents who want cases 'moved.' Without question, Mr. Suarez
has substantially exceeded this office's expectations for overall
productivity.''
______
Responses of John Peter Suarez to Additional Questions from Senator
Boxer
Question 1. Last year's VA-HUD Appropriations Conference Report
(FY02) directs the Administration to restore enforcement positions to
their FY01 Operating Plan levels. The fiscal year 01 Operating Plan as
enacted provided for 3,536.8 FTEs in Federal enforcement. Headquarters
is allocated 895.5 positions and the Regions are allocated 2,641.3
positions.
You indicated in a response to a question from Senator Jeffords
after your confirmation hearing on enforcement staffing that total end
of year FTEs in enforcement are currently projected to be 3,366.7 This
represents a staffing shortfall of 170 positions in enforcement
nationwide compared to FY01 Operating Plan levels. You also state in
your answer to Senator Jeffords question that the Regions ``continue to
manage their enforcement positions in a manner consistent with the
Agency's FY02 budget as passed by Congress'' and that they are on
target to reach 2, 516.6 FTE's in the Region. This number is
approximately 125 positions short of fiscal year 01 Operating Plan
levels. The shortfall for Headquarters and Non-Regional Offices is 47
positions.
Your response fails to take into account the 170 positions
nationwide that you have indicated are not targeted for restoration at
any time this year as directed by Congress.
Question 1(a).Please explain your understanding of EPA's plans to
ensure that enforcement positions are restored to fiscal year 01
Operating Plan levels as provided for in the VA-HUD Conference Report.
Response. The Agency restored 145 workyears to the enforcement
program consistent with funding provided by Congress in the Agency's
fiscal year 02 funding bill. In that bill, Congress restored $15.0
million to the enforcement program, of which the Agency allocated
approximately $14.2 million to payroll and the remaining $800,000 to
personnel related, non-payroll costs (such as training, supplies, and
so forth). When added to base salary funds, the restoration provided a
total enforcement salary budget of $328.2 million, sufficient to
support the proposed FTE ceiling of 3,406.8 FTE at an average cost of
roughly $96,300 per FTE.
Although the Agency applied the entire $15.0 million from the
fiscal year 02 appropriations bill to fund enforcement FTEs, the
enacted amount was not sufficient to fund enforcement FTE at the fiscal
year 01 enacted ceiling level.
Question 1(b). Please indicate what efforts have been undertaken to
date to restore these positions, both at Headquarters and in the
Regions.
Response. As described above, the Agency applied the entire $15.0
million from the fiscal year 02 appropriations bill to fund enforcement
FTEs. My understanding is that EPA is continuing to manage to its
proposed FTE ceiling consistent with funding provided by the Congress
in the fiscal year 02 appropriations bill. Actual FTE utilization for
the year is expected to be very close to the proposed 2002 FTE ceiling.
Question 1(c). What specific actions would you take, if confirmed,
to assure that EPA enforcement positions are restored to fiscal year 01
levels?
Response. If confirmed, I will continue to ensure that the
enforcement program at EPA manages its funding and personnel levels
consistent with those proposed in the fiscal year 02 operating plan. I
will also examine closely the resources and staffing levels at both
Headquarters and in the Regions to ensure that the Office of
Enforcement and Compliance Assurance (OECA) is directing its available
resources to those areas where the most significant public health and
environmental problems exist. To the extent that enforcement positions
allocated to OECA become vacant, I will work with the administrative
and personnel offices to ensure that OECA is actively recruiting and
hiring qualified employees to meet EPA's staffing needs and maintaining
the Agency's authorized staffing levels. If additional staffing needs
are identified, I will advocate for whatever additional resources are
necessary to ensure that our Headquarters and Regional offices are able
to continue to pursue the Agency's mission effectively.
Question 1(d). Are you willing to vigorously enforce the laws even
when you or the Administration do not agree with those laws? Have you
had to do so in any prior positions? If so, please explain.
Response. Yes. If confirmed, I believe that as the Assistant
Administrator for OECA, my job will be to enforce our nation's
environmental laws as they are written, firmly and fairly. I also
believe that one of the roles for the Assistant Administrator of OECA
is to ensure that enforcement's concerns and issues are considered when
decisions are made regarding proposed statutory or regulatory
amendments, and to articulate what impact proposed changes might have
on enforcement actions. As to my own experiences in enforcing laws that
an Administration may disagree with, I have had several occasions where
I have been involved in enforcement actions that were contrary to the
prevailing view of an Administration.
For example, when I was the Director of the Division of Gaming
Enforcement, I initiated several civil actions against online gambling
enterprises seeking to enjoin their activity, which is illegal in the
State of New Jersey and in violation of Federal law. At the time that
we began our actions, the New Jersey legislature was considering a
proposal to amend New Jersey's laws and Constitution to allow for
online gambling. The casino industry was also lobbying the
Administration to allow for some forms of online gambling to be
permitted. Although the civil actions that we commenced were
controversial, we believed that New Jersey's citizens needed to be
protected from unscrupulous online gambling operators and that action
needed to be taken to ensure that entities seeking to do business in
New Jersey were in compliance with State law.
Question 1(e). Do you agree to fully cooperate with the Congress in
a timely manner on requests for information, including requests for
operating plans or other documents related to enforcement issues? Will
you appear to discuss such issues when requested by a subcommittee, as
well as by the full committee?
Response. Yes, I will fully cooperate with Congress and respond to
requests for information or documents related to enforcement issues in
a timely manner. I will also appear before any committee or
subcommittee to discuss congressional requests for information or
documents, and will provide the members of such committees and
subcommittees with information and explanations that may assist the
members in understanding the work performed by OECA.
Question 2. The recent resignation of Eric Schaeffer from his post
as Director of the Office of Enforcement and Compliance Assurance's
Office of Regulatory Enforcement (ORE) underscored the level of
frustration that is felt by many in the Office of Regulatory
Enforcement.
According to Mr. Schaeffer, one of his concerns while still
Director of ORE was that he was asked by his superiors to withdraw
offers of employment to future enforcement personnel, despite the
availability of adequate funding. He was particularly concerned that
entire areas of specialization are currently without any staffing.
Question 2(a). Do you believe it is important to retain experienced
staff? Do you have a plan to ensure that valuable employees are
retained?
Response. Yes, I believe it is very important that experienced
staff in OECA are retained so that their expertise and advice are
available to assist me, if confirmed, in the management and policy
challenges facing the Office. I have been very impressed with the
overall competence and professionalism of the staff at OECA, and
believe that human capital is one of the biggest and best assets that
OECA can bring to bear on important environmental issues. I also
believe that by providing senior management and staff with new
challenges and experiences, either through the Senior Executive Service
mobility program, rotational assignments from other EPA offices,
Intergovernmental Personnel Agreements, training, or through growth and
promotion within the Office, that senior staff will continue to respond
to the challenges faced by the Office and will maintain their desire to
stay.
Question 2(b). What is your plan for ensuring that critical areas
of specialization are properly staffed?
Response. If confirmed, I intend to examine fully the resources
allocated to OECA and to ensure that resources are being directed
toward those areas that have the most significant impact on public
health and the environment. If there is a staffing need in a critical
area, then I will ensure that personnel and resources are allocated to
address that need. To the extent that additional resources may be
needed to staff a critical area of specialization, then I believe that
the Assistant Administrator for OECA should be advocating for those
additional resources and directing them to that critical area so that
the mission of enforcement is not compromised.
NOMINATIONS TO THE CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD: JOHN
BRESLAND AND CAROLYN MERRITT
----------
THURSDAY, JULY 18, 2002
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 10:02 a.m. in
room 406, Senate Dirksen Building, Hon. James Jeffords
[chairman of the committee] presiding.
Present: Senator Jeffords.
OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. The hearing will come to order.
Good morning and thank you for being here. Ms. Merritt and
Mr. Bresland, by accepting the nomination of this position, you
are showing all of us your commitment to public service, and I
want to thank you for that.
You have been nominated to be members of the U.S. Chemical
Safety and Hazard Investigation Board. The mission of this
Board, promoting chemical safety, has always been an important
one. But in the wake of September 11, we are looking at our
homeland safety and security with heightened concern and
scrutiny. The responsibilities of the Chemical Safety Board
Members are challenging, and I look forward to hearing from
each of you as to how you are prepared to meet these
challenges.
Mr. Bresland, pleased to have you here, and please proceed.
Mr. Bresland. If I may, Mr. Chairman, before I start I
would like to introduce some of my family members.
Senator Jeffords. You may do that.
Mr. Bresland. My wife Beth is sitting behind. She is an
oncology social worker.
Senator Jeffords. Give me a little wave back there. Yes,
all right, fine.
Mr. Bresland. She is an oncology social workers at
Morristown Memorial Hospital in Morristown, New Jersey. And
also my niece and nephew, Michelle and Carrie Kimmel
Senator Jeffords. Welcome.
Mr. Bresland. And my grandniece, Shea Bugijinski, who lives
in Washington, DC, and has actually just started work here
after graduating from university.
STATEMENT OF JOHN S. BRESLAND, PRESIDENT, ENVIRONMENTAL AND
SAFETY RISK ASSESSMENT, LLC
Mr. Bresland. Thank you, Mr. Chairman, and distinguished
members of the committee. My name is John Bresland. I am
honored to appear before you to tell you about my background
and what I hope to accomplish if confirmed as a member of the
Chemical Safety and Hazard Investigation Board.
Let me also say that I am very grateful for the support of
Senator John Corzine and Representative Rodney Frelinghuysen
from my home State of New Jersey.
My reasons for being honored by this nomination are both
personal and professional. I was born in Londonderry, Northern
Ireland. My education in chemistry took place in Northern
Ireland and in England. I came to the United States 36 years
ago, and I spent all of these years working in the chemical
industry in the United States. I became a United States citizen
in a ceremony at Independence Hall in Philadelphia in 1983.
Both the United States and the chemical industry have been good
to me and they have allowed me to live in freedom and in
comfort.
After many years of experience in business, I have the
desire to get involved in public service and return some of the
benefits that I have received over the years. I am fully
committed to the public service mission of the Chemical Safety
Board, which is to prevent accidents, save lives and protect
the environment by conducting investigations, and advocating
safety recommendations.
In 1966, I joined the Allied Chemical Company, which is now
called Honeywell International in West Virginia. I continued to
work for Honeywell until the year 2000. During that time, I
worked in chemical plants in West Virginia, Philadelphia,
Pennsylvania, Hopewell, Virginia, and my last 5 years with
Honeywell were spent at their corporate headquarters in
Morristown, New Jersey.
My experience in the chemical industry has, I believe, been
broad-based. It includes chemicals manufacturing. I have been
an operations manager and a plant manager in complex chemical
plants. My experience includes management. I was responsible
for the operation of a facility with 300 employees, both union
and non-union. I am experienced in health, safety and
environmental compliance. I have been responsible for chemical
plants compliance with Federal, State and local laws and
regulations.
I have extensive experience in community outreach. I have
run community outreach panels for Honeywell, made a point of
personally visiting plant neighbors and listening to their
concerns when they have complaints about plant operations. I
was chairman of the American Chemistry Council's National Plant
Manager and Community Leaders Training Program.
And finally, with regard to chemical process safety, when I
retired from Honeywell, I formed my own consulting company
specializing in the areas of compliance with OSHA's Process
Safety Management Program and EPA's Risk Management Program. I
also worked as a staff consultant with the Center for Chemical
Process Safety, which is part of the American Institute of
Chemical Engineers. Currently, I am helping to develop chemical
process safety books, including one on reactive chemicals
management, which as you may know is the subject of a current
major ongoing investigation at the Chemical Safety Board.
Mr. Chairman, I believe that my experience will blend with
the solid professional experience and dedication of the current
Board members and that of the nominee for Chair, Carolyn
Merritt. I would hope to contribute toward consensus on the
agency's mission and activities. In my view, the priorities of
the Board over the next 5 years should be as follows. First and
foremost, increase the number of accident investigations. Next,
step up the work that the Board is already doing to be an
advocate for the implementation of CSB safety recommendations
by industry and by government.
This means continuing to work in a cost-effective manner
with the Board's stakeholders, including those people who live
around chemical plants, the chemical process industry and its
trade organizations, labor unions, Members of Congress and
congressional staffs, and last but not least, EPA and OSHA.
I believe Boardmembers and the Chief Operating Officer must
manage the agency in a sound and prudent manner. If confirmed,
I will be committed to developing a close and effective working
relationship with the new Chair, with the other Boardmembers
and with the current staff of the agency.
Finally, Mr. Chairman, in today's world of concern about
terrorism, I would hope that the agency could explore with your
committee ways to use the expertise of the Chemical Safety
Board to improve homeland security with regard to chemical
facilities.
The goal of all of these priority actions, of course, will
be an improvement in chemical plant process safety, saving
lives and protecting the environment. If at the end of my 5-
year term, I could point to success in those areas, I believe
that my time in Washington will have been well spent. I am
looking forward to the challenges that face me with humility
and enthusiasm. If you honor me with confirmation, I look
forward to working with you and with your staffs.
Thank you again for the opportunity to appear before you
and I will be pleased to answer any questions that you may
have.
[The prepared statement of Mr. Bresland follows:]
Senator Jeffords. Thank you. An excellent statement.
Mr. Bresland. Thank you, Mr. Chairman.
Senator Jeffords. Ms. Merritt?
STATEMENT OF CAROLYN W. MERRITT, FORMER SENIOR VICE PRESIDENT
FOR ENVIRONMENT, HEALTH AND SAFETY, IMC GLOBAL, INC.
Ms. Merritt. Mr. Chairman and members of the committee,
thank you for the opportunity to appear before you today. My
name is Carolyn Merritt and I am currently a resident of
Palatine, Illinois. I am married to Stephen and have been for
35 years. We have two grown children, one in Los Angeles and
one in Austin, Texas.
I am honored and humbled by this nomination from the
President to the position of chairman and CEO of the U.S.
Chemical Safety and Hazard Investigation Board. In a career
that spanned over 30 years, I have had the satisfaction of
working as a high school teacher, as a general foreman,
environmental manager and corporate officer. I have been proud
of my accomplishments, but I believe that it would be my utmost
privilege to now work in government service.
I am excited by the opportunity to contribute my
experiences and knowledge to the U.S. Chemical Safety and
Hazard Investigation Board. I believe this agency can
effectively fulfill its mandate to determine root cause of
chemical accidents and to recommend and advocate safety
improvements in industry. Chemical accidents cost human lives,
contaminate the environment, and destroy production facilities
and jobs. The Chemical Safety Board can and does help to
prevent these losses.
In every position I have held, I have worked to be an
effective leader, communicator and problem solver. My
professional experience has included work in facilities that
manufactured chemicals, fertilizers, pharmaceuticals, munitions
and pulp and paper. I have worked in research, quality control,
environmental compliance, worker safety, and as an executive
manager.
From 1994 to 2001, I served as Senior Vice President in
Environment, Health and Safety for IMC Global, a billion-dollar
agricultural chemicals company with as many as 12,000
employees. From the early 1980's to 1994, I held environmental
and safety management positions with Tennessee Chemical Company
and Champion International Corporation.
But my most rewarding experience has been working with
communities, industrial managers and workers to reduce the risk
that a facility will suffer a disastrous chemical incident, and
to prepare for emergency response in the event that one should
occur. OSHA's 1993 process safety management standard was an
important milestone in improving plant safety and protecting
workers, residents and the environment. I have worked with two
different industries guiding management and operating staff as
they implemented these rules. I believe these regulations have
saved lives and prevented substantial environmental damage.
The chemical industry in which I have spent most of my
career is an important contributor to our economy and quality
of life. At the same time, I have seen that government has a
significant role to play in verifying the safety and compliance
of chemical manufacturing facilities and facilities that use
hazardous chemicals in their processes. The Chemical Safety
Board will work in partnership with regulatory agencies and the
regulated community and Congress to determine how best to use
the lessons learned from incident investigations to prevent
recurrences.
Prevention has to be the ultimate reason for regulation.
The Chemical Safety Board can be an important vehicle to
achieve effective prevention.
Mr. Chairman, the Board has gone for more than 2 years
without a Chair and a full-time Chief Operating Officer or a
full complement of Boardmembers. If John Bresland, President
Bush's nominee for the other open Board position, and I are
fortunate enough to be confirmed, the Board will for the first
time have all five seats filled. The combination of academic,
industrial, and agency experience represented on the Board will
create a highly effective management group. I believe the CSB
is poised to achieve the results that Congress intended when it
was created by the 1990 Clean Air Act Amendments.
My executive and organizational skills can move this
organization forward, improve morale and effectiveness, and
achieve the support of this committee, sister governmental
agencies, and industry. I hope you will grant me the
opportunity to lead this organization to a more effective
future.
I thank you for the opportunity to present this testimony,
and if you have any questions, I would be happy to answer them.
[The prepared statement of Ms. Merritt follows:]
Senator Jeffords. Thank you very much, both of you, for
excellent statements.
Did you have family members you would like to----
Ms. Merritt. No, I do not have anyone here today. My
husband is working.
[Laughter.]
Senator Jeffords. OK, fine. I will have a few questions for
you.
In March, 2002, the Inspector General of the Federal
Emergency Management Agency, FEMA, published a report on issues
regarding management accountability and control at the Chemical
Safety Board. The report had 10 recommendations for improving
the management and accountability of the Board. Could you
comment on the recommendations and what you, if confirmed as a
Boardmember, would do to implement those recommendations?
Ms. Merritt, start with you.
Ms. Merritt. Yes, I have seen the report and read it, and
have talked to the different Boardmembers about it. Many of
those provisions have already been implemented--five of them
concerning more of the management areas, and the other six are
in place and expect to be implemented by the end of the year. I
think it was a reasonable and a good review of the issues that
the Board has faced in the last several years.
It would be my expectation to be responsible for making
sure that those provisions have been implemented in a timely
fashion, along with the other Boardmembers, and also that they
are sustained; that we move forward as Congress expects us to
to achieve our mission, to know where we are going, to do it
cost-effectively, and to be an agency that others will look up
to as having provided a service to the country.
Senator Jeffords. Mr. Bresland?
Mr. Bresland. Mr. Chairman, I have read the report and I
have read the follow-up actions that the Board submitted back
to the Inspector General. The latest I hear is that five of
those recommendations have been completed by the Board and the
other five are scheduled to be completed by the end of
September. I certainly feel that the key action for Mrs.
Merritt and for myself, if we are privileged to be nominated to
the Board, is to move ahead and work--all five Boardmembers
work together.
Up until now, they have only had three Boardmembers, and we
all want to work together as efficiently and as collegially as
possible, and we also have the opportunity to work with the new
Chief Operating Officer for the agency, Mr. Jeffers, who used
to run OSHA. I have met with him and developed what I think is
a very good starting relationship with him. So I am very
optimistic that in the future we can move ahead and make
significant improvements.
Senator Jeffords. Good.
Mr. Bresland, in your statement you say that you hope that
the expertise of the Board could be used to improve homeland
security with regard to chemical facilities. As you know, the
committee, working with other committees in the Congress, is
working on the Department of Homeland Security legislation. I
would be interested in hearing how you think the Chemical
Safety Board should be involved in homeland security.
Mr. Bresland. Well, the Chemical Safety Board has expertise
in the chemical process area and they have got process
engineers, chemical engineers, mechanical engineers who know a
lot about the operation of chemical plants. And they have
probably more concentrated expertise in Washington than most of
the other agencies that deal with this, with all due respect to
EPA and to OSHA.
I would think that a key action that the Board could get
involved in would be evaluating chemical facilities for site
security, having a look at the way chemical facilities are
secured from terrorist attacks; looking at ways to improve
chemical processes; if there is an incident, to mitigate the
effects of such an incident.
I was coming down on the train from New Jersey on Monday
night, and as you come on the train, you go by chemical plants
with fences around them and you just wonder what is inside that
chemical plant and what the impact would be if somebody decided
to get in there. So I think we can use our expertise in
cooperation with your committee members and with EPA and with
OSHA to develop improved safety and security for chemical
plants.
Senator Jeffords. Ms. Merritt?
Ms. Merritt. Yes, I agree with Mr. Bresland. Having had
responsibility for chemical facilities, its safety and
security, I know that where you draw your perimeter when you
begin to look at plant security is important. Under the process
safety rules, they do--it does include looking at plant
security, so those provisions are already there. I think
industry has looked at what its most significant risk is, and
like the barbed wire fence that John just mentioned, it was
mostly to keep vandals out or people who might steal product.
I think working with the other agencies and with industry
to understand now what the risk might be, I think everyone
would work together and we would certainly enjoy working with
the other agencies to look at where do you draw that perimeter
and what risks do you look at, and what would their impact and
effect be. I think that is how this agency could work with
homeland defense and with the other agencies in order to make
provisions that work for industry and also to protect the
country and the residents in the nearby areas from such
releases as a result of terrorists.
Senator Jeffords. Under the Clean Air Act, the Chemical
Safety Board is required to collect information on accidents
and releases. Do you know how complete that information is now?
Ms. Merritt. No, I do not, but I would be happy to get back
with you on it.
Senator Jeffords. OK, fine.
For both of you, what rule can safer design play in
addressing potential accidents and terrorism? And what is the
role of the Board in making such recommendations?
Ms. Merritt?
Ms. Merritt. OK. Well, I think that is one of the things
that the Board does, is, one, to investigate incidents. It also
have provisions in its mandate to proactively do investigations
and to make recommendations. I think in working with industry,
associations and with regulated agencies, as well as FBI or
others, finding what the vulnerabilities might be and then
making recommendations that others may act on I think is the
role that the Board would play. And then also working possibly
with industry to help to advocate for those changes is another
way that the Board might serve homeland defense.
Senator Jeffords. Any comment, Mr. Bresland?
Mr. Bresland. I think there are probably two aspects to
this. One is safer design for new facilities. I think as the
chemical industry, the oil refining industry is building new
facilities, I would hope that they are putting in the safest
design, using the least toxic chemicals to build those
facilities, and also siting them in a way that if there was an
incident, the offsite impact of that incident would be
minimized.
It is a little more complex for existing facilities because
an existing facility may have been in operation for 30 years.
It may have been built, in the case of the plant that I worked
in in Philadelphia, it may have been built in Philadelphia 100
years ago when nobody lived around it. Today, it is surrounded
by people, so it is difficult to just pick a plant up and go
somewhere else. It is very expensive also.
So I think the issue of inherently safer design is
something that the chemical industry is interested in and I
would certainly encourage it. It should be done for new
facilities. It should be done to the best extent possible for
existing facilities in doing things like reducing the amount of
chemicals that you have onsite.
If I may give an analogy here that I read a few weeks ago,
one of the other things I do in New Jersey is I work for an
ambulance squad. A few weeks ago, we went to a call where a
woman had fallen down the stairs and it turned out she had
broken her neck and we had to take her to the hospital. In the
follow-up to that, not necessarily the follow-up to that, but I
was reading about the issue of inherent safety. The analogy was
given to the stairs in your house. If you have a house with
existing stairs, if you have an existing two-story house, the
stairs are there and you can't do much about them, but you have
to build things that would stop you falling down. If you were
building the safest possible house today, you would built it in
a one story that did not have stairs in it.
The same situation applies to the chemical industry to a
certain extent. It is easier to put in inherently safer design
for new facilities than it is for older facilities. But I would
certainly, as a Boardmember, encourage the chemical industry to
do it for both types of facilities.
Senator Jeffords. Anything else you would like to add
before I ask you the obligatory question?
Ms. Merritt. I would just thank you for the opportunity to
be able to be here today and to meet with you.
Senator Jeffords. Thank you.
I now will ask you the obligatory questions. Are you
willing at the request of any duly constituted committee of the
Congress to appear in front of it as a witness?
Ms. Merritt. I do.
Mr. Bresland. Yes.
Senator Jeffords. No. 2, do you know of any matters which
you may or may not have thus far disclosed which might place
you in any conflict of interest if you are confirmed in this
position?
Mr. Bresland?
Mr. Bresland. No, I do not.
Senator Jeffords. Ms. Merritt?
Ms. Merritt. No, I do not.
Senator Jeffords. Well, now we have the rule that says that
members have the right to, even though they did not come here
today, to submit questions to you. So I warn you, but I would
not stand by the mailbox either, so----
[Laughter.]
Senator Jeffords [continuing]. That is something that may
occur.
I just want to thank you for very excellent statements and
I look forward to working with you and we will have to have a
meeting of the full committee in order to endorse your presence
on this committee.
So thank you, and best of luck to you.
Ms. Merritt. Thank you.
Mr. Bresland. Thank you very much, Mr. Chairman.
[Whereupon, at 10:27 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
[Additional statements submitted for the record follow:]
Prepared Statement of Hon. Bob Smith, U.S. Senator from the State of
New Hampshire
Mr. Chairman, I am pleased that we have been given this
opportunity to hear testimony from both of these nominees. John
Bresland and Carolyn Merritt have been nominated by the
President to serve on a Board that has in the past and will
continue to play a great role in the protection of our nation
from major chemical accidents at fixed facilities.
The Chemical Safety and Chemical Hazard Investigation Board
(CSB) was formed under provisions of the Clean Air Act and
serves to investigate and determine ways to prevent accidents
involving hazardous chemicals. Since January of 2000, this
Board has existed without a Chairman and CEO--that is not an
acceptable manner in which to run a Board that has such a
weighty responsibility.
Why is it important for this particular Board to be fully
staffed? As early as 1993 the EPA reported the existence of
more than 278,000 chemical facilities that generate, transport,
treat, store and/or dispose of hazardous waste. In the same
year it was determined that nearly four billion tons of
hazardous waste are shipped each year. That was in 1993--it is
staggering to think about what those numbers are now. The CSB
has the responsibility of determining the consequences of
accidents involving hazardous chemicals at fixed facilities and
are, in conjunction with the NTSB, involved in investigating
accidents involving hazardous chemicals in transit. While the
CSB does not have enforcement or regulatory powers, they are
responsible for helping those who are in a position to make
decisions understand why accidents happened and what can be
done to prevent them in the future.
In order to be effective, the CSB must be composed of
individuals who have an intimate understanding of a number of
technical areas including, but not limited to, toxicology,
accident reconstruction, general chemical safety issues and
pollution regulations. Perhaps most important, they must
understand the human factors and human consequences of
hazardous chemical accidents. People die, are seriously injured
and lose jobs when these accidents occur and I believe that it
is our duty to make certain that we do everything in our power
to help prevent these accidents. With a qualified and committed
Board the CSB has the potential to do exactly that.
John Bresland has an extensive background in a variety of
chemical safety and conditional fields. He has studied both in
the United States and abroad and has shown a consistent desire
to remain up to date on all aspects of his field. During his
career with Honeywell International he has gained valuable
experience in environmental compliance, engineering,
manufacturing and safety compliance. Most recently he has
served as President of a consulting firm that specializes in
chemical facility safety and environmental performance
improvement. I believe that he has the kind of background and
education that will make him an outstanding and highly valuable
member of the CSB.
Carolyn Merritt is a skilled manager and brings with her a
25-year background with strong ties to chemical safety. In both
technical and managerial positions, she has worked in a wide
variety of positions aimed at creating safe, environmentally
responsible and involved facilities. Most recently, Carolyn
Merritt has served as Senior Vice President for Environment,
Health and Safety for IMC Global, Inc. She has been responsible
for establishing plans that reduce risk and ensure that there
is the highest level of accountability. Her management
experience will be an invaluable asset as Chairman and CEO of
the CSB.
I am certain that both John Bresland and Carolyn Merritt
will carry out the duties presented to them when confirmed to
the best of their abilities--they are very well qualified to
serve on the CSB and I am pleased to have the opportunity to
have them here before the committee today.
----------
Statement of John S. Bresland, Nominated by President Bush to be a
Board Member of the U.S. Chemical Safety and Hazard Investigation Board
Thank you, Mr. Chairman and distinguished members of the
committee.
My name is John Bresland. I am honored to appear before you
to tell you about my background and what I would hope to
accomplish if confirmed as a member of the Chemical Safety and
Hazard Investigation Board.
But first, if I may, I would like to introduce my wife,
Beth. She is an Oncology Social Worker at Morristown Memorial
Hospital in Morristown, New Jersey. We have two married
daughters and four grandchildren.
Let me also say that I am very grateful for the support of
Senator Jon Corzine and Representative Rodney Frelinghuysen
from my home State of New Jersey.
My reasons for being honored by this nomination are both
personal and professional. I was born in Londonderry, Northern
Ireland. My education in chemistry took place in Northern
Ireland and in England. I came to the United States 36 years
ago. I have spent all of those years working in the chemical
industry. I became a United States citizen in a ceremony at
Independence Hall in Philadelphia in 1983. Both the United
States and the chemical industry have been good to me and they
have allowed me to live in freedom and comfort.
After many years of experience in business, I have the
desire to get involved in public service and return some of the
benefits that I have received over the years. I am fully
committed to the public-service mission of the Chemical Safety
Board: to prevent accidents, save lives, and protect the
environment by conducting investigations and advocating safety
recommendations.
In 1966 I joined the Allied Chemical Company (now Honeywell
International) in West Virginia. I continued to work for
Honeywell until 2000. During that time I worked in chemical
plants in West Virginia; Philadelphia, Pennsylvania; and
Hopewell, Virginia. My last 5 years with Honeywell were spent
at their corporate headquarters in Morristown, New Jersey.
My experience in the chemical industry has been, I believe,
broad-based.
It includes chemicals manufacturing--I have been
an operations manager and plant manager in complex facilities.
It includes management--I was responsible for the
operation of a facility with 300 employees, both union and non-
union.
I'm experienced in health, safety and
environmental compliance. I have been responsible for chemical
plants' compliance with Federal, State and local laws and
regulations.
I have extensive experience in community
outreach. I've run community advisory panels for Honeywell,
made a point of personally visiting plant neighbors and
listening to their concerns, and I was Chairman of the American
Chemistry Council's national plant manager and community leader
training program.
And finally, with regard to chemical process
safety: When I retired from Honeywell I formed my own
consulting company, specializing in the areas of compliance
with the OSHA Process Safety Management Program and the EPA
Risk Management Program. I also work as a Staff Consultant with
the Center for Chemical Process Safety of the American
Institute of Chemical Engineers. Currently I am helping to
develop chemical process safety books, including one on
reactive chemicals management which, as you may know, is the
subject of a major ongoing investigation at the CSB.
Mr. Chairman, I believe that my experience would blend with
the solid professional experience and dedication of the current
Board members and that of the nominee for Chair, Carolyn
Merritt.
I would hope to contribute toward consensus on the agency's
mission and activities. In my view, the priorities of the Board
over the next 5 years should be as follows:
1. First and foremost, increase the numbers of accident
investigations.
2. Next, step up the work the Board is already doing to be
an advocate for the implementation of CSB safety
recommendations by industry and government. This means
continuing to work in a cost effective manner with the Board's
stakeholders including people who live around chemical
facilities, the chemical process industry and its trade
organizations, labor unions, Members of Congress and
congressional staffs, and last but not least EPA and OSHA.
3. I believe that Board members and the Chief Operating
Officer must manage the agency in a sound and prudent manner.
If confirmed, I would be committed to developing a close and
effective working relationship with the new Chair, other board
members and staff.
4. Mr. Chairman, in today's world of concern about
terrorism, I would hope that the agency could explore, with
your committee, ways to use the expertise of the Chemical
Safety Board to improve homeland security with regard to
chemical facilities.
The goal of these priority actions, of course, will be an
improvement in chemical plant process safety saving lives and
protecting the environment. If, at the end of my 5-year term, I
could point to success in those areas, I believe that my time
in Washington will have been well spent.
I am looking forward to the challenges that face me with
humility and enthusiasm. If you honor me with confirmation, I
look forward to working with you and your staffs.
Thank you again for the opportunity to appear before you. I
would be pleased to answer any questions.
----------
Statement of Carolyn W. Merritt, Nominated by President Bush to be
Chairman and CEO of the U.S. Chemical Safety and Hazard Investigation
Board
Mr. Chairman and members of the committee, thank you for
the opportunity to appear before you.
My name is Carolyn Merritt. I am honored and humbled by
this nomination from the President to the position of Chairman
and CEO of the U. S. Chemical Safety and Hazard Investigation
Board. In a career that has spanned 30 years, I have had the
satisfaction of working as a high school teacher, as a general
foreman, environmental manager and corporate officer. I have
been proud of my accomplishments. I believe, however, that it
would be my utmost privilege to work in government service.
I am excited by the opportunity to contribute my experience
and knowledge to the U.S. Chemical Safety and Hazard
Investigation Board. I believe this agency can effectively
fulfill its mandate to determine root causes of chemical
accidents and to recommend and advocate safety improvements in
industry. Chemical accidents cost human lives, contaminate the
environment, and destroy production facilities and jobs. The
Chemical Safety Board can, and does, help prevent these losses.
In every position I have held, I have worked to be an
effective leader, communicator and problem solver. My
professional experience has included work in facilities that
manufactured chemicals, fertilizers, pharmaceuticals,
munitions, minerals, and pulp and paper. I have worked in
research, quality control, process engineering, plant
operations, wastewater treatment, environmental compliance,
worker safety and executive management. From 1994 to 2001, I
served as Senior Vice President for Environment, Health, and
Safety for IMC Global, a billion dollar agricultural chemicals
company with as many as 12,000 employees. From the early 1980's
to 1994, I held environmental and safety management positions
with Champion International Corporation and the Tennessee
Chemical Company.
My most rewarding experiences have been working with
communities, industrial managers and workers to reduce the risk
that a facility will suffer a disastrous chemical incident and
prepare for emergency response in the event such an event were
to occur. Continuing this work as part of the Chemical Safety
Board has the potential to further improve the safety and
security of people, property and vital productivity.
OSHA's 1993 Process Safety Management standard was an
important milestone in improving plant safety and protecting
workers, residents, and the environment. I have worked in two
different industries guiding management and operating staff as
they implemented these rules. I believe these regulations have
saved lives and prevented substantial environmental damage.
The chemical industry, in which I have spent most of my
career, is an important contributor to our economy and quality
of life. At the same time, I have seen that government has a
significant role to play in verifying the safety and compliance
of chemical manufacturing facilities and facilities that use
hazardous chemicals in their processes. The Chemical Safety
Board should work in partnership with enforcement agencies, the
regulated community and Congress to determine how best to use
lessons learned from incident investigations to prevent their
recurrence. Prevention has to be the ultimate reason for
regulation. The CSB can be an important vehicle to achieve
effective prevention.
The Board has gone for more than 2 years without a Chair, a
full-time Chief Operating Officer, or a full complement of
Board Members. If Mr. John Bresland, President Bush's nominee
for the other open Board position, and I are fortunate enough
to be confirmed, the Board will, for the first time, have all
five seats filled. The combination of academic, industrial, and
agency experience represented on the Board will create a highly
effective management group. I believe the CSB is poised to
produce and can achieve the results Congress intended when it
was created by the 1990 Clean Air Act Amendments.
I believe my executive and organizational skills can move
this agency forward; improve morale and effectiveness; and
achieve the support and respect of this committee, sister
government agencies, and industry. I hope you will grant me the
opportunity to lead this organization to a more effective
future.
Thank you for the opportunity to present this testimony. I
would welcome questions from the committee.
U.S. Chemical Safety and Hazard Investigation Board,
2175 K Street, NW Suite 400,
Washington, DC. 20037-1809, March 8, 2002.
Clifford N. Melby,
Assistant Inspector General for Inspections,
U.S. Chemical Safety and Hazard Investigation Board,
Office of Inspector General,
Washington, DC 20472.
Dear Mr. Melby: Thank you for reviewing the U.S. Chemical Safety and
Hazard Investigation Board's (CSB) operations and making
recommendations to improve the efficiency and effectiveness with which
we carry out our important mission.
As you reported, the CSB experienced significant management
problems during its first 2 years and has been operating for the past 2
years without a Chairperson or a permanent Chief Operating Officer
(COO). You also reported that the CSB needs to address management
control and Board member accountability issues, and to work on clearly
defining the direction of the agency and focusing resources
accordingly. We concur with all of your recommendations for improvement
and have already initiated corrective actions in many areas.
We acknowledge that we have had problems, but we have been taking
steps to address and resolve these problems. We are pleased to note
that meetirngs held in the summer of 2001 aimed at addressing the issue
of Board-Senior staff friction are achieving results. In November 2001,
as you were completing this review, we held and continue to hold a
number of working sessions to resolve many of the issues identified in
your report. Action plans, agreements, and other documents developed
during these working sessions are available for your review and show
our commitment and progress.
We would also like to point out that your report might not
adequately allow readers to recognize that in spite of unusual and
difficult circumstances in the past 2 years the CSB has made progress
and achieved several important accomplishments. For example, in fiscal
year (FY) 2001 the CSB was able to launch investigation assessment
teams to five incidents, three of which resulted in conducting full
investigations. Further, we met our goal of completing the first of
these investigations in less 1:han 12 months, and the others are
nearing completion. In the past year we have also worked on an
important hazard investigation related to reactive chemicals and
completed work on all of the backlogged cases that were left over from
the CSB's former management. In addition to progress on investigation
work, the CSB has made significant progress in establishing its
infrastructure, for example our first full financial audit received an
unqualified opinion. We also received positive reports from the Office
of Personnel Management regarding our human capital management and from
the Office of Government Ethics regarding our ethics program.
The CSB will take positive action to address the concerns raised in
your report. The following discussion addresses each of your
recommendations and the actions we have taken and/or plan to take to
operate in a more effective and efficient manner.
OIG Recommendation 1. Recommend the Board establish the necessary
protocol, and then designate, an acting Chairperson or Vice-Chair. In
the absence of a Chairperson, the Vice-Chair should be the chief
executive and administrative officer with authority to appoint and
supervise the staff, distribute business among the agency's personnel
and administrative units, and control the preparation of the agency's
budget and expenditure of funds.
We agree with your recommendation. When the former Chairperson
resigned in January 2000, the remaining Board members and General
Counsel explored the possibility of delegating the Chairperson's
executive and administrative functions to one Board Member until the
President appointed and the Senate confirmed a new Chairperson. The
White House Counsel advised against this course of action. After an
unanticipated 2-year vacancy in the position of Chairperson, the CSB
will again pursue appointing an acting Chairperson. As a first step,
the Board will request a binding legal opinion on the legality of the
appointment of an acting Chairperson from the Office of Legal Counsel
of the U.S. Department of Justice. This request will be submitted by
March 31, 2002.
2OIG Recommendation 2. Recommend the Board delegate to the COO the
authority to effectively manage the day-to-day operations of the CSB.
The delegation should be consistent with the duties set forth in the
COO's position description.
We agree with the recommendation and will codify our delegation of
authority to the COO to effectively manage the day-to-day operations of
the CSB. Consistent with the duties set forth in the COO's position
description, the delegation will include authority to:
Oversee and carry out administrative and operational
functions of the CSB, such as financial management operations, human
resource management, public/government affairs and outreach, and
administrative support operations;
Direct and oversee strategic planning to meet the Board's
objectives;
Deploy investigation teams and oversee all substantive
investigation and safety mission-related programs; and
Manage policy development and implementation, program
integration and management, and advisory services in concert with the
Board's general guidance and direction.
The delegation will be accomplished by a Board Order, and we plan
to have a draft available for the OIG to comment on by April 30, 2002.
OIG Recommendation 3. Recommend the Acting COO develop a written
strategy for identifying, prioritizing, and improving the agency's
system of management controls. Particular attention should be paid to
establishing accountability mechanisms, including separation of duties.
This may be accomplished through a senior management council below the
Board level consisting of managers and key staff, who would review
controls, assess and report on deficiencies, and provide input on their
improvement and priority.
We agree with the recommendation and the COO will develop a written
strategy for identifying, prioritizing, and improving the CSB's system
of management controls. This strategy will include your suggestion of a
management council below the Board level to oversee and audit
operations. We plan to have a draft of the strategy available for the
OIG to comment on by June 1, 2002.
OIG Recommendation 4. Publish regulations that comply with the
requirements of the ``Government in the Sunshine Act. `` The regulation
should: (a) sped what mechanism the CSB will use to protect public
rights during quorum assemblies, such as having General Counsel
present, (b) clarify whether any item:, of Board business, such as
investigative reports, necessitate public discussion and cannot be
accomplished by notation vote alone, (c) clam whether the CSB will hold
regular meetings and under what types of exceptions it would cancel or
schedule additional meetings, such as Boards of Inquiry, (d) require
the CSB to publish votes and public meeting transcripts on the web, (e)
establish the public reading room as promised by the CSB 's FOIA
regulation, and (fl direct the CSB to submit an annual Sunshine report
to Congress.
We agree with the recommendation and will publish a regulation that
complies with the requirements of the ``Government in the Sunshine
Act'' and otherwise addresses the issues raised by the OIG. We plan to
have the regulation published by May 1, 2002. In the meantime, we will
implement an interim Sunshine Act Compliance program by March 31, 2002.
Also, we held a public meeting on February 27, 2002 to discuss the
status of the CSB's performance goals 1.1, 1.2, and 1.3 of our
strategic plan and efforts toward hiring a permanent COO. In addition,
we will establish a FOIA reading room.
OIG Recommendation 5. Revise policies and procedures io reduce
Board member involvement in the soliciting and awarding of contracts.
Such measures should include vesting administrative aspects of the
procurement process in the Acting COO and raising the minimum
procurement amount requiring Board approval.
We agree with the recommendation and will make appropriate
revisions to our policies and procedures to reduce Board Member
involvement in the soliciting and awarding of contracts. Key revisions
will include vesting administrative aspects of the procurement process
in the COO and limiting Board Member involvement in the procurement
process to the final approval of goods or services valued at $50,000 or
more. We plan to have the revisions completed by May 31, 2002.
OIG Recommendation 6. Recommend the COO develop and implement a
system that links strategic planning to resource allocation decisions,
and measures performance in a way that balances productivity and costs
with desired outcomes.
We agree with the recommendation. The COO is developing a system to
link strategic planning to resource allocation decisions, and measures
performance to balance productivity and costs with desired outcomes.
The CSB is now monitoring progress on performance goals using work
plans. We are also developing a system to track staff hours to
performance goals. We plan to have this system in place by April 30,
2002.
OIG Recommendation 7. Recommend the Board immediately prioritize
agency resources to ensure successful execution of all action items
related to its investigative performance goal.
We agree with the recommendation and have taken a hard look at our
performance plan for fiscal year 2002. To ensure we prioritize
resources on oar investigative goal we will rescind the following
initiatives related to outreach:
Conducting a workshop with the Safety and Chemical
Engineering Education Committee;
Co-sponsoring a conference with the National Institute of
Environmental Health Sciences; and
Obtaining membership in the Center for Chemical Process
Safety.
Further, we will not undertake new initiatives or hiring for
outreach or data until we review our strategic plan to ensure the CSB
is focused on the successful execution of our investigative performance
goal. We plan to have this review completed by June 30, 2002, and
proposed revisions will be vetted with our congressional authorizing
and appropriating committees.
OIG Recommendation 8. Recommend the Board and COO make the agency's
fiscal year 2002 hiring plans a top priority and to the extent
possible, accelerate the hiring process for new investigators.
We agree with the recommendation and hiring staff within the Office
of Investigations and Safety Programs is a top priority. To accelerate
filling these critical positions, the CSB will petition OPM for
permanent Schedule A hiring authority for investigative positions.
Under temporary Schedule A hiring authority the CSB had a very
successful hiring program in FY's 2000 and 2001. We plan to submit a
request for Schedule A hiring authority to the Of Fice of Personnel
Management by March 31, 2002. In addition, we ask for your support in
getting Schedule A hiring authority, which is the key to getting new
investigators on board as quickly as possible.
OIG Recommendation 9. Recommend the Board and COO curtail training-
outreach initiatives until (a) the Board develops a Strategic Outreach
Plan that takes into account the agency's statutory authority
responsibilities, primary audience, and limited resources; and (b) its
investigative function is fully operational. The plan should reflect
the consensus of the Board members, senior management and staff.
We agree with the recommendation and have curtailed the, training-
outreach initiatives identified under recommendation 7. We are
developing a strategic outreach plan that we expect to finalize by
April 30, 2002. As previously stated, we will also review our strategic
plan to ensure that the CSB is focused on the successful execution of
our investigative performance goal.
OIG Recommendation 10. Recommend the Board and COO implement a
follow-up program for recommendations made in investigative reports,
including monitoring recommendations, closing recommendations when
corrective actions are taken, and periodically publishing the status of
them. In order to better measure the impact of report recommendations,
the program should be tied to the performance measures identified in
the agency's performance plan.
We agree with the recommendation and plan to undertake the
following:
Vote to close out 20 of our past recommendations by March
15, 2002.
Implement an internal tracking system for recommendations
status including a data base and electronic file system for
correspondence and documentation by March 30, 2002.
Hold a public meeting to formally close a number of other
recommendations by May 31, 2002.
Implement a publicly accessible data base on the Work.
Wide Web for CSB's recommendations status by October 2002.
Include the percentage of recommendations adopted as a
significant factor in measuring the effectiveness of CSB's mission
accomplishment.
Again, we thank you and your staff for your efforts and
recommendations to improve the efficiency and effectiveness with which
we carry out our important mission.
Sincerely,
Gerald V. Poje, Board Member
Isadore Rosenthal, Board Member
Andrea Kidd Taylor, Board Member