[Senate Hearing 110-1195]
[From the U.S. Government Publishing Office]
S. Hrg. 110-1195
CONSIDER PENDING NOMINATIONS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
OCTOBER 2, 2007
__________
Printed for the use of the Committee on Environment and Public Works
Available via the World Wide Web: http://www.fdsys.gpo.gov
__________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland JOHN BARRASSO, Wyoming\1\
BERNARD SANDERS, Vermont LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island CHRISTOPHER S. BOND, Missouri
Bettina Poirier, Majority Staff Director and Chief Counsel
Andrew Wheeler, Minority Staff Director
------
\1\Note: During the 110th Congress, Senator Craig
Thomas, of Wyoming, passed away on June 4, 2007. Senator John
Barrasso, of Wyoming, joined the committee on July 10, 2007.
C O N T E N T S
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Page
OCTOBER 2, 2007
OPENING STATEMENTS
Boxer, Hon. Barbara, U.S. Senator from the State of California... 1
Craig, Hon. Larry E., U.S. Senator from the State of Idaho....... 2
Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland 3
Isakson, Hon. Johnny, U.S. Senator from the State of Georgia..... 5
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode
Island......................................................... 6
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 6
Lautenberg, Hon. Frank, U.S. Senator from the State of New Jersey 9
Chambliss, Hon. Saxby, U.S. Senator from the State of Georgia.... 10
Lieberman, Hon. Joseph, U.S. Senator from the State of
Connecticut, prepared statement................................ 76
WITNESSES
Cochran, Andrew R., nominee for Inspector General, Environmental
Protection Agency.............................................. 11
Prepared statement........................................... 12
Bresland, John S., nominee for Board Member and Chairman of the
U.S. Chemical Safety and Hazard Investigation Board............ 34
Prepared statement........................................... 36
Responses to additional questions from:
Senator Sanders.......................................... 37
Senator Vitter........................................... 39
Senator Lautenberg....................................... 40
Senator Lieberman........................................ 43
Shearer, C. Russell H., nominee for Board Member, U.S. Chemical
Safety and Hazard Investigation Board.......................... 46
Prepared statement........................................... 48
Responses to additional questions from:
Senator Boxer............................................ 50
Senator Lautenberg....................................... 51
Senator Lieberman........................................ 59
Senator Cardin........................................... 59
Gilliland, Thomas C., nominee for Board Member, Board of
Directors of the Tennessee Valley Authority.................... 69
Prepared statement........................................... 70
Responses to additional questions from Senator Boxer......... 70
ADDITIONAL MATERIAL
Statements:
Williams, Susan R., reappointed TVA Board Member............. 77
Responses to additional questions from Senator Boxer..... 78
Graves, William H., reappointed TVA Board Member............. 81
Responses to additional questions from Senator Boxer..... 82
Letters:
U.S. Chemical Safety and Hazard Investigation Board.......... 85
Fiori, Mario P., Springfield, VA............................. 170
Russo, Frank B., Leesburg, VA................................ 172
Amerine, David, B., Parsons senior vice president............ 174
Rollow, Tom, Fairfax Station, VA............................. 176
Emails, Shearer, Russell......................................... 1
Environment, Safety and Health Bulletins......................... 178
CONSIDER PENDING NOMINATIONS
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TUESDAY, OCTOBER 2, 2007
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The full committee met, pursuant to notice, at 10 a.m. in
room 406, Dirksen Senate Office Building, the Hon. Barbara
Boxer (chairman of the committee) presiding.
Present: Senators Boxer, Craig, Baucus, Lautenberg, Cardin,
Whitehouse, Isakson and Alexander.
Also Present: Senator Chambliss.
STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE STATE OF
CALIFORNIA
Senator Boxer. The Committee will come to order.
I want to welcome everybody, and Senator Craig will be
sitting in as Ranking Member today for Senator Inhofe.
I just wanted to place in the record something, because we
had a little contention at the Committee when I wanted to
invite Senator Mikulski up to the dais, and Senator Inhofe said
this had never happened before. We went back in the record and
found out on Wednesday, September 13, 2006, Chairman Inhofe
invited and allowed Senator Alexander to sit immediately to
Senator Inhofe's right, asked him to engage in questions. We
will put this in the record, without objection, and the
photographs that prove the point.
The idea of doing this is that, I don't mind if we have
disagreements, but let's not--let's get the facts right. So I
just wanted to make the case that I will continue to run this
Committee the way Senator Inhofe did, and these decisions will
be made.
Now I see Senator Chambliss is up here which is fine. Then
I would ask that Senator Craig make a unanimous consent request
to permit that, if he would.
Senator Craig. I would so ask unanimous consent request to
allow Senator Chambliss to be at the dais for the purposes of
introduction.
Senator Boxer. Is there any objection?
We are making an exception here. Also I would state that,
if there is no objection, I would certainly allow the Senator
to stay here, if he wishes to ask any questions, if there is no
objection to that. So ordered. We have a new day at the
Committee, and isn't it nice to get along.
[Laughter.]
Senator Craig. Kumbayah.
[Laughter.]
Senator Boxer. So if you could put me back to five minutes,
I will start my statement now.
This morning, the Committee meets to consider the
nomination of six individuals. We will first hear from Mr.
Andrew Cochran of Virginia, who is nominated to be the
Inspector General of the EPA. On the second panel, we will hear
from Mr. John Bresland, of New Jersey, who is nominated to be
both a member of the Chemical Safety and Hazard Investigation
Board and its chairperson; Mr. C. Russell Shearer, nominated to
be a member of that board. The second panel also includes Mr.
Thomas Gilliland to be a member of the Board of Directors of
the Tennessee Valley Authority. I can say to you, sir, you have
strong support from members of your State.
Two other reappointment nominations for the board of TVA,
Susan Williams and William Graves, are not present today, but
they have submitted the required paperwork.
Mr. Cochran, I intend to carefully review your
qualifications for this position. The EPA Inspector General
must be an individual who is committed to protection of the
environment as well as an effective investigator. You must also
be willing to maintain an adequately sized staff of qualified
individuals to help you succeed in your job. Congress and the
American public rely upon the IG to be thorough and objective
and determined to ensure that the EPA fulfills its mission.
Mr. Bresland and Mr. Shearer, it is critical that the
Chemical Safety Board maintain itself as an independent Federal
agency that investigates industrial chemical accidents. This is
highly technical work, it is important to providing a safe
workplace and protecting the public and our Nation's economy.
If confirmed, I would expect you both to be aggressive in
reviewing effectiveness of regulations and regulatory
enforcement that both avoid accidents and mitigate their
impacts.
We also, as I said before, have Mr. Thomas Gilliland, and
your Senator, again, Senator Isakson, on this Committee, speaks
very highly of you. I look forward to discussing with you your
commitment to making sure that TVA demonstrates a commitment to
environmental leadership including reducing greenhouse gases
and addressing global warming.
So that is my entire statement, and I will call on members
in order of their appearance, but of course, I will turn it
over to Senator Craig, who is sitting in for the Ranking.
STATEMENT OF HON. LARRY E. CRAIG, U. S. SENATOR FROM THE STATE
OF IDAHO
Senator Craig. Madam Chairman, first and foremost, thank
you for scheduling this hearing and getting these nominees or
renominations before the Committee, I think they and we
appreciate it, in a timely fashion. As you have already
mentioned, the Ranking Member, Senator Inhofe, has asked that I
stand in this morning, at least for a period of time, as we
start this hearing.
So first and foremost, congratulations to each of the
nominees before us today. I am pleased that we are having these
hearings at this time.
Since March 2006, the EPA has been without a confirmed
Inspector General. This is a critical position, as the Chairman
has already mentioned, that needs to be filled, in my opinion,
and I think the opinion of everyone, as soon as possible. The
Chair has had some concern in the past over similar candidates'
auditing experiences. Andrew Cochran is a well-qualified
candidate with a lot of experience, in my opinion, in auditing.
He served as senior counsel for oversight and investigations on
the Committee on Financial Services for the United States House
of Representatives, and as audit division director and senior
analyst at the Office of Inspector General at the Department of
Commerce. That certainly appears, in this position, to be high
qualifications. This type of experience obviously is critical
to an inspector general.
Let me welcome the other three nominees that are before the
Committee for the first time: Thomas Gilliland, to be a board
member of the Tennessee Valley Authority, and as has already
been said, both Senators Chambliss and Isakson will introduce
him. I therefore gather he is from Georgia.
[Laughter.]
Senator Craig. Russell Shearer, to be a member of the
Chemical Safety and Hazard Investigation Board; and John
Bresland to be the Chairman of the Chemical Safety and Hazard
Investigation Board.
So again, Madam Chairman, thank you very much for holding
this hearing.
Senator Boxer. Thank you, Senator Craig, for sitting in for
Senator Inhofe.
Now we will go in order of arrival and back and forth, of
members of the Committee, then we will get to Senator
Chambliss.
Senator Cardin.
STATEMENT OF HON. BENJAMIN L. CARDIN, U. S. SENATOR FROM THE
STATE OF MARYLAND
Senator Cardin. Madam Chair, thank you very much. I welcome
the nominees today, and I thank them for being willing to serve
in these very important public positions.
Madam Chair, I just really want to underscore the point
that you made, the positions that we are considering today are
very important for the health and safety of the people of this
Country. When I think back, Nikki Tinsley and her role as
Inspector General, in being aggressive in looking after the
appropriate role for EPA, I just urge Mr. Cochran, when we talk
today about your willingness to act as an independent person,
willing to take on a President or an Administration.
Your term, if confirmed, will go beyond the term of this
Administration. So the continuity in the Inspector General's
office, to me, is a very important standard. I hope that you
will be prepared to assure this Committee that your sole
responsibility will be to make sure the laws are carried out,
and willing to take on whomever to make sure that in fact takes
place.
The other nominees are for extremely important positions
concerning public safety. Some come with experience, others do
not. I hope that again, during the course of the confirmation
process, that you will address the issues of the independence
of your position of representing the public and not an
Administration, because I think that is the key role of each of
the nominees, of the positions that you are seeking.
Madam Chair, I will ask that my statement be made part of
the record, and I thank you very much for the opportunity to
make these opening comments.
[The prepared statement of Senator Cardin follows:]
Statement of Hon. Benjamin L. Cardin, U.S. Senator from the
State of Maryland
Madame Chairman, thank you for holding this hearing today.
I approach every Presidential nominee with a bias toward supporting
that person. Public service is a great honor and it often comes at some
significant personal sacrifice.
I want to support nominees, and I am sure that I will support most,
and perhaps all, of the nominees before the Committee today.
Some of the people before the Committee today, quite frankly, need
to put some of our concerns to rest before I'll support them.
The Inspector General of the U.S. Environmental Protection Agency
is one of the lesser known leaders in the EPA, but the role can be an
incredibly important one for the Agency and for the County.
We saw during the tenure of Nikki Tinsley that the EPA IG can be an
important catalyst within the Agency. Her greatest strength was to
undertake aggressive, insightful programmatic reviews of EPA's actions.
The IG has to be independent. That person and his or her staff need
to bring strong, independent knowledge to the job. We all benefit when
EPA's own internal watchdog is constantly pressing the Agency to
organize its work around its core missions and to do so in the most
effective and efficient fashion possible.
The attributes that make up an excellent IG are
a person of the highest integrity,
a person with a passion for the mission of the Agency, and
a person who is willing to make other Agency leaders
uncomfortable from time-to-time.
Mr. Cochran, you have been nominated to this important position. We
will be looking to you to address forthrightly how you fit that
profile.
That means you need to convince us that the concerns about the use
of federal funds for lobbying by your employer are unfounded.
You need to convince us that you will bring a sense of independence
to the job. That means criticizing Bush Administration policies at EPA
if you find that they are not working efficiently and effectively to
protect human health and the environment, which is the core mission of
EPA.
This Senator and this Committee will demand a similar level of
excellence in the other nominees that we will be hearing from today.
Mr. Shearer, do you have a commitment to safety in the chemical
industry and sufficient independence to tackle tough cases?
Unlike Mr. Bresland, another nominee to the Chemical Safety Board
before us today, you do not bring relevant private sector employment
history to the job. You have held a number of positions within the
present Administration, and the President should be given great
deference in picking his team.
But you are being nominated to a five-year term on the Chemical
Safety Board. There you to do more than carry out Administration's
policies. You need to exercise independent judgment and provide dynamic
leadership to a small but vitally important group.
Today we will be listening carefully to learn how you will
demonstrate such independent judgment and leadership.
Madam Chairman, the nominees that we are considering are being
asked to play a key role for all Americans. We owe it to the nation to
make sure that the nominees we are considering meet the highest
standards of public service.
I look forward to hearing from our nominees and to today's
discussion.
Thank you, Madame Chairman.
Senator Boxer. Thank you so much. I would ask unanimous
consent that the extra 2 minutes that you did not use go to
Senator Baucus, because I think he may need a little extra
time. If you need them, then you will have 7 minutes for your
statement.
Senator Baucus. Thank you.
Senator Boxer. Senator Isakson.
STATEMENT OF HON. JOHNNY ISAKSON, U. S. SENATOR FROM THE STATE
OF GEORGIA
Senator Isakson. Thank you, Madam Chairman. I want to at
the outset acknowledge my deep appreciation to you and Bettina
for the cooperation you have given in allowing Tom Gilliland,
our appointee-designate to the TVA Board's hearing to be held
today. You have been a tremendous help to me and I am greatly
appreciative of that.
I am greatly appreciative of the opportunity to brag about
somebody who is a deep personal friend of mine. A lot of time
when you are up here, and somebody from your State has been
nominated for something, you read from a script that they
provide you, and you are as sincerely as you can complimentary
of someone who know tacitly and not really very well.
I know this gentleman extremely well. I have known him for
40 years. He is an outstanding graduate of the University of
Georgia and has a Juris Doctor degree from Emory University,
Phi Beta Kappa. He married way over his head when he married
Candy----
[Laughter.]
Senator Isakson [continuing]. They have two beautiful,
handsome sons who, I must inject, only as I told them last
night, their two sons, both are at Yale, both scored 1600 on
the SATs. They are outstanding individuals. You could have
squared my SAT score and it wouldn't have gotten to 1600.
[Laughter.]
Senator Isakson. I am just tremendously impressed with
that.
But Tom served as Chief of Staff to Lieutenant Governor
Peer Howard, a Democrat who was one of my best friends in
college. He has been appointed by both Democrat and Republican
governors of Georgia to the Stone Mountain Authority. He has
been an advisor on the transition team in terms of Lieutenant
Governor Casey Kagel. He is No. 2 man at the third largest bank
in the State of Georgia, United Community Bank. He is a lover
of the environment, he is appreciative of business, he is
appreciative of the opportunities that this great Country gives
to us. I can assure you, there could be no better qualified
individual to serve on the board of TVA than Tom.
Lastly, I have only put one hold on one bill in my career
in the U.S. Senate. Unbeknownst to me, it was the Majority
Leader's bill 2 years ago, and that was Majority Leader Frist,
when he introduced the recomposition of the TVA board. Citizens
of Georgia have for years not been represented ever on the TVA
board, and we constitute a part of the TVA service, and all 10
of our border counties with Tennessee, their EMCs derive their
power from TVA.
I am very appreciative of former Majority Leader Bill
Frist, Senators Lamar Alexander and Bob Corker from Tennessee,
the other States represented who came together and felt like it
was right for the State of Georgia to be represented, and to
Tom Kilgore, the now-Chairman and operating officer of the TVA
Authority for having been so courteous as to call me and let us
know when an opening came to consider Mr. Gilliland for this
place.
So it is a privilege for me to introduce a distinguished
citizen of our State, one who will do a good job in a
tremendously important responsibility. Again, I want to thank
the Chairman at the end for what I said at the beginning, for
all her cooperation in making this happen today.
Senator Boxer. Thank you so much, Senator. It was a
pleasure to work with you.
Senator Whitehouse.
STATEMENT OF HON. SHELDON WHITEHOUSE, U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
Senator Whitehouse. Thank you, Madam Chair.
I just want very briefly to relate that in a discussion
that I had with Mr. Cochran, he indicated that he saw his role
in the Inspector General position at EPA as more than just
protecting that agency against financial mis-deeds or
defalcations, but also to have a role in ensuring that there
was process integrity in its regulatory function, to make sure
that there was not impropriety in the weight that was given,
for instance, to industry views that the rules and regulations
were followed, and that it was an agency in which both
environmental and business interests could claim a fair shot.
I think that is a very important point, and I am delighted
that he sees his role that way. I wanted to make a record of
it.
If I may ask unanimous consent that an article from the
Washington Post entitled Bush's EPA is Pursuing Fewer
Polluters, By A Full-Third from Sunday, September 30, 2007, be
made a part of the record.
Senator Boxer. Without objection, so ordered.
[The referenced material was not available at time of
print.]
Senator Whitehouse. That concludes my statement. Thank you,
Madam Chair.
Senator Boxer. Thank you.
Senator Baucus.
STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE STATE OF
MONTANA
Senator Baucus. Thank you, Madam Chairman.
I thank you for calling this hearing. I look forward to
hearing from all the nominees. However, I am going to direct my
comments to Mr. Cochran.
The Roman writer Juvenal famously asked, ``Who will guard
the guards?'' The Environmental Protection Agency's mission is
to guard human health and the environment. Mr. Cochran, if
confirmed as Inspector General of EPA, you will have to watch
the guards. Across the Country, people will look to you to hold
EPA's feet to the fire and ensure that EPA is keeping us safe.
Nowhere is this truer than in Libby, MT. I will support
your nomination if I am certain in your ability to display
independence and toughness. Regardless of what political party
controls EPA, the people of Libby and the people across America
deserve nothing less.
Libby has been twice wronged. For decades, W.R. Grace's
vermiculite mill in Libby spewed toxic tremolite asbestos into
the air. They gave it to residents to put on their lawns. They
even spread it on high school tracks. Over 200 people in Libby
have died from asbestos-related disease because of W.R. Grace.
Unfortunately, the tragedy has not ended for the people of
Libby. Despite the best efforts of EPA staffers on the ground,
one I will mention, Paul Parronard, the agency leadership has
made serious mistakes. In August 2006, I asked the Inspector
General of EPA to review EPA's work in Libby. What the report
found was truly outrageous. After 7 years, EPA has failed to
complete the necessary toxicity studies to determine the safe
level of human exposure to Libby amphibole. They failed to
conduct the toxicity tests to determine how safe is safe. This
means that after 7 years, EPA still cannot say how clean they
need to make the homes and the businesses to protect the
families in Libby.
Why were these studies never done? According to a 2006
Inspector General report, EPA scientists requested the studies,
but EPA's budget office did not approve their request. EPA cut
corners to save a buck.
The review also found that EPA had given the people of
Libby dangerously inaccurate information in so-called comfort
letters. EPA told homeowners that their homes were clean, when
in fact EPA had no idea what level of exposure to Libby
asbestos is safe.
EPA also published documents such as ``Living with
Vermiculite,'' telling people it was okay to sweep up asbestos-
laced vermiculite attic insulation in their homes. An outrage.
I am also concerned by EPA's decision not to declare a
public health emergency in Libby. According to press reports,
EPA was prepared to declare a public health emergency in Libby
in the spring 2002. Administrator Whitman was so inclined.
Declaring a public health emergency in Libby would have given
the agency clear authority to remove all vermiculite attic
insulation in homes in Libby. That declaration of public health
emergency would have also required the Agency for Toxic
Substances and Disease Registry to provide some level of
medical care for people in Libby. A huge problem. Now they
don't get the care. That declaration would also have
implications nationwide.
However, according to press reports, the Office of
Management and Budget intervened and EPA never declared a
public health emergency. Once again, EPA and OMB put saving a
buck ahead of the people of Libby.
Mr. Cochran, I hope I have impressed upon you, I am sick of
the bean counters at OMB and EPA cutting corners in Libby to
save money. According to your resume, you have extensive
experience as an auditor, looking for financial waste. That is
important. But quite frankly, it is not what is most needed in
that job of Inspector General. The people of Libby and I am
sure elsewhere in the Country need an Inspector General that
will put them first. The people of Libby need someone whose
first thought isn't what is cost-efficient, but rather, someone
whose first thought is what is right.
I will be looking to see if you are that kind of person.
Thank you, Madam Chairman.
[The prepared statement of Senator Baucus follows:]
Statement of Hon. Max Baucus, U.S. Senator from the State of Montana
Chairman Boxer, thank you for calling this hearing. I would also
like to thank the nominees for their willingness to serve.
I look forward to hearing all of the nominees' testimony. However,
I will direct my comments to Mr. Cochran.
The Roman writer Juvenal (Jew-ven-all) famously asked, ``who will
guard the guards?''
The Environmental Protection Agencies' mission is to guard human
health and the environment.
Mr. Cochran, if confirmed as Inspector General of the EPA, you
would have to watch the guards. Across the country, people would look
to you to hold EPA's feet to the fire and ensure that the EPA is
keeping us safe.
Nowhere is this truer than in Libby, Montana. Mr. Cochran, I will
support your nomination if I am certain in your ability to display
independence and toughness. Regardless of what political party controls
the EPA, the people in Libby and across America deserve nothing less.
Libby has been twice wronged. For decades the W.R. Grace
vermiculite mill in Libby spewed toxic tremolite asbestos into the air.
They gave it to residents to put on their lawns. They even spread it on
the high school track. Over 200 people in Libby have died from asbestos
related disease because of W.R. Grace.
Unfortunately, the tragedy has not ended for the people of Libby.
Despite the best efforts of EPA staffers on the ground, the Agency
leadership has made serious mistakes.
In August of 2006, I asked the Inspector General to review EPA's
work in Libby. What the report found was truly outrageous. After seven
years, EPA has failed to complete the necessary toxicity studies to
determine the safe level of human exposure to the Libby amphibole.
This means that after seven years, EPA still cannot say how clean
they need to make the homes and businesses to protect the families in
Libby.
Why were these studies never done? According to the 2006 Inspector
General report, EPA scientists requested the toxicity studies, but
EPA's budget office did not approve their request. The EPA cut corners
to save a buck.
The review also found that EPA had given the people of Libby
dangerously inaccurate information. In so called ``comfort letters,''
EPA told homeowners that their homes were clean, when in fact EPA has
no idea what level of exposure to Libby asbestos is safe.
EPA also published documents such as ``Living with Vermiculite,''
telling people that it was ok to sweep up asbestos laced vermiculite
attic insulation in their homes. This is an outrage.
I am also concerned by EPA's decision not to declare a Public
Health Emergency in Libby. According to press reports EPA was prepared
to declare a Public Health Emergency in Libby in the spring of 2002.
Declaring a Public Health Emergency in Libby would have given the
Agency clear authority to remove all Zonolite Attic Insulation in homes
in Libby.
The declaration of Public Health Emergency also would have required
the Agency for Toxic Substances and Disease Registry (ATSDR) to provide
some level of medical care for people in Libby.
However, according to press reports, the Office of Management and
Budget intervened and EPA never declared a Public Health Emergency.
Once again EPA and OMB put saving a buck ahead of the people of Libby.
Mr. Cochran, I hope I have impressed upon you that I am sick of the
bean counters at OMB and EPA cutting corners in Libby to save money.
According to your resume, you have extensive experience as an
auditor looking for financial waste. This is an important skill. But,
quite frankly, it is not what is most needed in Libby.
The people of Libby need an Inspector General that will put them
first. The people of Libby need someone who's first thought isn't
``what is cost efficient'' but rather someone who's first thought is
``what is right.''
I will be looking to see if you are that kind of person.
Senator Boxer. Senator, thank you.
Senator Lautenberg.
STATEMENT OF HON. FRANK LAUTENBERG, U.S. SENATOR FROM THE STATE
OF NEW JERSEY
Senator Lautenberg. Madam Chairman, if our colleague, other
colleague from Georgia has any particular----
Senator Boxer. Well, I am going to wait until all the
members of the Committee are heard first.
Senator Lautenberg. I agree with you.
[Laughter.]
Senator Lautenberg. I wanted to be able to criticize Saxby,
actually.
Anyway, it was offered in good nature. I am satisfied that
we go on with our business.
Madam Chairman, thanks for holding today's hearing on the
nominations for the positions at EPA and Chemical Safety Board
and Tennessee Valley Authority. The role as defined by Senator
Baucus is a recitation, I think, of something we said years
ago, applies so well, and that is, you know, Mr. Cochran, that
you have the responsibility of watching the watchers and making
sure that they do their job, to coin a phrase. We see problems
that we have had at EPA with problems of management of programs
and where there are arbitrary decisions made not to meet the
standards that were set down in programs that they have.
Now, that is a fairly delicate area, I will admit. But the
fact of the matter is that I would hope that your mission is to
do everything that they are supposed to do as honestly and
efficiently as can be done. I am concerned about something, Mr.
Cochran, because the objectivity, the independence of the
Inspector General is a critical issue. I will be looking for
that independence and dedication.
But I will ask you this. You are a member, an officer of
the Federalist Society. They are not particularly supportive of
environmental regulation that is often proposed or in place
now. I wonder, and we will talk about that when I have a chance
to ask you a question, I wonder what kind of an influence you
bring as a result of your affiliation with that organization.
Regarding the Chemical Safety Board, it was 1990, Madam
Chairman, when Senator Durenberger and I created the Chemical
Safety Board. It took until 1997 to get some funding for it.
Our mission was to have the Board investigate the causes of
serious accidents at chemical plants, oil refineries,
industrial facilities, and make recommendations on how to
better protect workers and the public. Those nominations come
at a critical time for the Board. Former Chairperson Carolyn
Merritt showed excellent leadership at the Chemical Safety
Board, and we have to make sure that her work, excellent work,
continues. Both nominees for the Chemical Safety Board must
demonstrate that they are fully committed to protecting the
safety of workers and the public from the potential dangers of
a chemical accident.
I chaired a subcommittee hearing on the Chemical Safety
Board and its work just this past July. Several witnesses said
that we need more board members with a background in chemical
process safety. Mr. Bresland has already served on the Board
for 5 years, has a long history of working on chemical process
safety issues in the private sector. But I am less convinced,
Madam Chairman, about Mr. Shearer's qualification. While he
served as an attorney in several positions related to toxic
chemicals in the Department of Defense and Energy, he has no
obvious background, apparent background in chemical process
safety, which is a primary focus of the Chemical Safety Board.
So finally, when the Tennessee Valley Authority, while they
have no direct impact on the State of New Jersey, its
generation of electricity affects our climate and therefore all
Americans. As nominee for its Board, Thomas Gilliland can play
a critical role in the reduction of carbon emissions of TVA
plants. So I look forward to learning about how he intends to
do that. Madam Chairman, thank you again for calling this
hearing.
Senator Boxer. Thank you very much, Senator.
Now, Senator Chambliss. Welcome.
STATEMENT OF HON. SAXBY CHAMBLISS, U.S. SENATOR FROM THE STATE
OF GEORGIA
Senator Chambliss. Thank you very much, Madam Chairman. I
appreciate your courtesy of allowing me to be here this morning
to share the introduction of a great Georgian with my long-time
dear friend, my colleague, Johnny Isakson.
I am very proud to introduce a fellow University of Georgia
graduate, a man who has distinguished himself in our State over
the last number of decades, and I want to give my wholehearted
support to the nomination of Tom Gilliland to the TVA Board.
Tom has been a friend for many years. His financial background
and judicious demeanor make him well-qualified to sit on this
very important Board. Tom is the Executive Vice President,
Secretary and General Counsel for United Community Banks, which
is the third largest bank holding company in our State.
Therefore, from a financial background standpoint, he certainly
has the qualifications to sit on this Board.
In addition, Tom lives in the TVA service area. He and his
wife live in Blairsville, GA, which is a very beautiful part of
our State. He is very knowledgeable about the environmental,
recreation and power resources provided by TVA. In addition, as
a businessman, he knows and understands the economic impact
that TVA has on our State and the entire region it serves.
I am particularly pleased the Committee is considering
Tom's nomination, because although over 100,000 Georgia
households are served by TVA, the State of Georgia has never
been represented on this Board. TVA provides power to customers
in 10 counties in our State, served by 3 electric membership
corporations. TVA also has reservoirs located in Georgia as
well. These reservoirs have a combined surface area of 14,522
acres and 300 miles of shoreline.
Finally, Georgia is home to over 750 TVA retirees and their
families. Clearly, there are a number of ties between North
Georgia and the TVA. Tom's confirmation to the TVA Board will
enhance the existing relationship, and I believe he will be a
great asset to the TVA Board.
So I thank you for allowing me the opportunity to introduce
my friend, Tom Gilliland. I believe you will find him worthy of
the position for which he has been nominated, and I urge you to
move his nomination very quickly.
Senator Boxer. Thank you very much, Senator.
We are now going to start 5-minute rounds of questions. I
am going to switch places with Senator Baucus, who has some
commitments that he needs to fulfill. So I will start it off
with Senator Baucus. Oh, you want to have the statement first.
Go ahead, sir.
STATEMENT OF ANDREW R. COCHRAN, NOMINEE FOR INSPECTOR GENERAL,
ENVIRONMENTAL PROTECTION AGENCY
Mr. Cochran. Good morning, Madam Chairman and distinguished
members of the Senate Committee on Environment and Public
Works. I am Andrew Cochran, and I am honored to appear before
you today as the nominee for Inspector General at EPA.
I am grateful to the President and EPA Administrator Steven
Johnson for this opportunity. If confirmed, I look forward to
working with EPA, this Committee and the entire Congress as an
independent, objective voice to assess and report upon EPA's
work to efficiently and economically improve human health and
environmental quality.
The Inspector General Act mandates the selection and
confirmation of Inspectors General ``without regard to
political affiliation and solely on the basis of integrity and
demonstrated ability in accounting, auditing, financial
analysis, law, management analysis, public administration, or
investigations.'' I have years of experience and
accomplishments in five of the seven named areas of expertise
in the Executive Branch and on Capitol Hill.
Since 2004, I have represented private sector firms and the
concerns of terrorism victims, victims of Libyan-sponsored
terrorism in the 1980s, Hamas terrorism in the West Bank and
Gaza, and the victims of 9/11 before Congress and the Executive
Branch to fight for the approval of beneficial legislation that
would help them seek justice in sole litigation.
I also started and direct the counter-terrorism blog, one
of the premier online centers in the world, for the
dissemination of objective and independent terrorism and
counter-terrorism news and analysis. During my nearly 11 years
with the Commerce Department Inspector General's Office, I
directed numerous audits and inspections that significantly
improved the management of Commerce Department programs,
reported on important policies and procedures, or resulted in
significant cost savings.
As the first director of the NOAA performance audit
division, I directed the first performance audit of a regional
fishery and management decision by the North Pacific Fishery
Management Council in 1992. We found violations of the National
Environmental Policy Act, Magnuson Fishery and Conservation
Act, as it was then known, and an important executive order on
cost benefit analysis. Senator Baucus, in my oral exit
conferences with senior departmental and NOAA officials, I told
them that the proposed amendments by the North Pacific Fishery
Management Council were unacceptable and indefensible. Despite
heavy pressure from the allies of the Council, we stuck by our
guns. We implemented the findings and recommendations and
worked with NOAA to implement those recommendations. NOAA
turned down the proposed amendment and came back with new
amendments.
The Inspector General awarded me the bronze medal, the
highest award in the OIG, for that report. Senator Baucus,
based on what I read about Libby, the situation there, it is
unacceptable and indefensible. My reports on that Council and
other reports, numerous other reports, provided our expert and
unbiased opinion on an important decision or standard practice
without quantifiable cost savings.
Three peer reviews conducted by other departments concluded
that audits issued under my direction met generally accepted
Government auditing standards. In March 2001, I was selected as
the first senior oversight counsel for the House Financial
Services Committee, and was lead counsel for the first
Congressional hearings on Enron, Global Crossing and WorldCom.
I have enjoyed working with many outstanding inspectors
general in the past 24 years. Their examples of a commitment to
professional excellence, professional and personal courtesy
will guide me in the years ahead. If confirmed, I will seek the
advice of the respected veterans now serving as inspectors
general.
I assure the Committee that should I be confirmed, I will
faithfully and independently discharge my duties to uphold the
legacy established by so many in the position. To quote from a
July hearing chaired by Senator Lieberman, I will be a
watchdog, not just a junkyard dog or lapdog.
The EPA stands as the Federal guardian protecting our
environmental resources. I am truly excited at the prospect of
serving as the Inspector General of that agency, which has a
direct impact on the health and safety of all Americans every
day. An Inspector General can serve as a positive force for
change, and if confirmed, I pledge to continue the OIG's record
of honorable achievements and service to the taxpayers.
If confirmed, I will work in a constructive, respectful
atmosphere with the OIG employees, EPA management, Congress and
other stakeholders. I will direct the work of the OIG in
accordance with the high standards, principles and traditions
of the profession. I will maintain frequent and open
communications with EPA management and the Congress, and will
report significant problems to the Congress when uncorrected by
EPA.
I want to thank my family, friends and associates,
especially my wife, who is watching with her mother at home.
Madam Chairman and members of the Committee, this concludes my
statement. I look forward to your questions.
[The prepared statement of Mr. Cochran follows:]
Statement of Andrew R. Cochran, Nominee for Inspector General,
Environmental Protection Agency
Good morning, Madam Chairman and distinguished Members of the
Senate Committee on Environment and Public Works. I am Andrew Cochran
of Springfield, VA, and I am honored to appear before you today as the
nominee for Inspector General of the Environmental Protection Agency.
I am grateful to President Bush and EPA Administrator Steven
Johnson for offering this opportunity. If confirmed, I look forward to
working with EPA, this Committee, and the entire Congress as an
independent, objective voice to assess and report upon EPA's work to
economically and efficiently improve human health and environmental
quality. The Inspector General Act mandates the selection and
confirmation of Inspectors General ``without regard to political
affiliation and solely on the basis of integrity and demonstrated
ability in accounting, auditing, financial analysis, law, management
analysis, public administration, or investigations.'' I have years of
experience and accomplishments in five of the named areas of expertise.
I practiced law and public accounting in the private sector; advised
the Deputy Secretary of Commerce in the 1980s of potential improvements
and budgetary savings in Commerce Department operations; conducted
numerous program analyses and audits as a career professional in the
Commerce Department's Office of Inspector General; and conducted
Congressional investigations into corporate accounting and stock
offering irregularities as senior oversight counsel of the House
Financial Services Committee. Since 2004, I have represented the
concerns of terrorism victims, homeland security-related firms, and
high-tech companies before Congress and the Executive Branch. working
to obtain bipartisan approval of beneficial legislation and
regulations. I also started and still direct one of the premier online
centers in the world for the dissemination of independent and objective
terrorism and counterterrorism news and expert analysis. Much of my
professional success has involved reaching across the aisle to build
coalitions with parties of different interests and desires.
I wish to focus on the nearly 11 years, from 1990 to 2001, during
which I was a career professional in the Commerce OIG. I directed
numerous audits and inspections that significantly improved the
management of Commerce Department programs, reported on important
policies and procedures, or resulted in significant cost savings. I was
the first director of a performance audit division focused totally on
the operations of NOAA, the National Oceanic and Atmospheric
Administration. In that role I directed the first performance audit of
a regional fishery management allocation decision by NOAA and a fishery
management council. I have already provided a copy of the report on the
fishery management allocation decision to the Committee. The Inspector
General awarded me the Bronze Medal, the highest award in the OIG, for
that report. I also directed the first OIG audit of a range of export
licensing decisions; the first OIG audit of a spectrum licensing
decision (which affected development of the then-infant digital
messaging industry); and the first OIG audit report to recommend that
an official Commerce Department publication should be disseminated
entirely on the Internet (in 1999). These reports provided our expert
and unbiased opinion on an important decision or standard practice,
without quantifiable cost savings. They were among a number of highly
sensitive audits that) directed and, along with many others, included
findings and recommendations that were unwelcome within the audited
agency. But when I left the Commerce OIG in 2001, all of the
recommendations in my final performance audit reports had been
resolved. I also directed audits that, in total, saved tens of millions
of dollars for the taxpayer. Three peer reviews conducted by other
departments during my tenure concluded that audits issued under my
direction were conducted in compliance with generally accepted
government auditing standards.
In March 2001, I was selected as the first senior oversight counsel
for the new House Financial Services Committee and served there during
the period covering the 9-11 attacks and the corporate accounting
scandals. I was lead counsel for hearings and investigations into
terrorism issues and the accounting scandals, including the first
Congressional hearings on the accounting issues at Enron, Global
Crossing and WorldCom. During my tenure, I worked in partnership with
Democratic committee staff to ask GAO and the Inspectors General of
Treasury, HUD, and the federal financial regulators to conduct audits
and report to Congress on issues such as the response of the regulators
and financial markets to the 9-11 attacks; the protection of critical
infrastructure from future attacks and disasters; mismanagement of
public housing authorities; single-family mortgage fraud; and the
search for dictators' assets hidden throughout the world.
My high respect for the men and women who occupy the position of
Inspector General, and for the standards governing their conduct and
performance, started with my first positions here in Washington. During
the summer of 1979, I was a Congressional intern for my Congressman
from Ohio, the Honorable Clarence J. Brown, who was an original co-
sponsor of the Inspector General Act of 1978. In 1983, he became the
Deputy Secretary of Commerce, and I left the Cincinnati office of
Arthur Andersen & Co., where I had practiced as a CPA, to assist him in
overseeing the management of the Department of Commerce.
I have enjoyed working with many outstanding Inspectors General on
management issues over the past 24 years, from Sherman Funk at the
Commerce Department in the 1980s, to Gaston Gianni and Jeffrey Rush
when I was at the House Financial Services Committee. These examples of
a commitment to professional excellence, independence, and personal
courtesy will guide me in the years ahead and, if confirmed, I will
seek the advice of the respected veterans now serving as Inspectors
General. I assure the Committee that, should I be confirmed, I will
faithfully and independently discharge my duties to uphold the legacy
established by so many in the position. To quote from the recent
hearing chaired by Senator Lieberman to consider how to strengthen the
role of Inspectors General, I will be neither a lapdog nor a junkyard
dog, but a watchdog.
The Environmental Protection Agency stands as the Federal guardian
protecting our environmental resources, and I am excited at the
prospect of serving as the Inspector General of this agency, which has
a direct impact on the health and safety of all Americans every day.
The taxpayers of our nation need an Office of Inspector General of
committed, trained, assertive, and competent professionals to prevent
and detect waste, fraud, and abuse in the delivery of EPA's services.
An Inspector General can serve as a positive force for change and, if
confirmed, I pledge to continue the OIG's record of honorable
achievements and service to the taxpayers.
If confirmed, I will work constructively in a respectful atmosphere
with the OIG employees. EPA management, Congress, and other
stakeholders. I will direct the work of the OIG in accordance with the
high standards, principles, and traditions of the profession. I will
maintain frequent and open communications with EPA management and the
Congress, and will report significant problems to the Congress when
uncorrected by EPA.
Madam Chairman and members of the Committee, this nomination
provides me with the opportunity to serve the nation as a federal
management expert at the highest level of an Executive Branch agency.
Thank you again for holding this hearing to consider my nomination, and
I look forward to your questions.
Senator Boxer. Senator Baucus.
Senator Baucus. Thank you.
Mr. Cochran, why do you want this job?
Mr. Cochran. I was a management wonk long before I was a
counter-terrorism wonk. I have years of experience in the area,
far more than any other field. An inspector general position in
an Executive Branch agency is one of the highest honors that a
management and budget expert can possibly have. The EPA is one
of the most important agencies in Government. It was truly an
honor to receive the phone call and to be asked to consider
taking this position.
I want to assist EPA and the management of the agency work
on behalf of the taxpayers to protect the Nation's health,
human health and environmental quality.
Senator Baucus. So this is not a job that you sought?
Mr. Cochran. No, sir.
Senator Baucus. Who called you?
Mr. Cochran. The White House called me. Nobody intervened
with them on my behalf.
Senator Baucus. The White House called you up and said,
Andrew, we would like you to take this job?
Mr. Cochran. They called me on April 12 on my cell phone,
because I had talked with them 3 years ago about another
position, they chose someone else. I was actually in
Williamsburg with my wife. Out of the clear blue sky, the phone
rang.
Senator Baucus. Who called you?
Mr. Cochran. The Office of Presidential Personnel.
Senator Baucus. Who was that?
Mr. Cochran. Jennifer Christy.
Senator Baucus. Were there any reasons why they, why
Jennifer said they were singling you?
Mr. Cochran. They were looking through my file, and there
had been a number of other inspectors general confirmed since
2004 when I talked to them about Treasury. They found me, and I
asked if there was anybody who intervened or anything else, and
she said no.
Senator Baucus. Did you ask any questions of them,
conditions of the job, or did they say anything to you about
the conditions of the job?
Mr. Cochran. I met with her a couple of times, I met with
the EPA Administrator and the Deputy Administrator once each.
They laid no conditions upon my work. We talked about general
theory of an inspector general, which I have years of
experience in. I had, there was no expectation of any hindrance
to my independence, and I wouldn't take any. I don't honestly
need this job to live. I have a good job and a good life.
Senator Baucus. I am sorry, I missed your experience as
inspector general. Where was that?
Mr. Cochran. In the Office of Inspector General at the
Commerce Department.
Senator Baucus. At Commerce, in the office?
Mr. Cochran. Right, not as the Inspector General.
Senator Baucus. How long were you there?
Mr. Cochran. Just 3 weeks short of 11 years.
Senator Baucus. About 11 years in Commerce. OK. What did
you do there? What was your job there?
Mr. Cochran. I was division director and senior analyst. We
had, we would move from area to area. So my first position as
division director was actually over the NOAA audit division. I
ended up auditing every agency of the Commerce Department, and
conducting almost every type of performance audit.
Senator Baucus. Did anything come up during your work there
that you, an irregularity of some kind, that you did something
about?
Mr. Cochran. Well, as I said first, the North Pacific
Fishery Management Council audit, where we basically forced
NOAA to turn down the proposed amendments of that Council.
Senator Baucus. Was that you or was that your boss or
others? Was that you?
Mr. Cochran. I directed the audit and all the dissertation
Ph.D, and one other auditor, and we wrote the audit and our
findings were not directed or guided from the Inspector
General. Then in 1995, if you are looking for sensitive audits,
one audit I did not add, I am not sure I added to the list for
the EPW work was that we did an audit of excessive travel
charge card use by employees of the Commerce Department,
including senior officials in the Department, and found charges
for gifts, jewelry, meals in town and five figure unpaid
balances.
Senator Baucus. Turning to Libby, as I mentioned in my
opening statement, I am concerned about the very grave mistakes
that EPA made, failing to conduct toxicity studies, inaccurate
communication, in fact, misleading information to the people
there. Also choosing not to declare a public health emergency.
I want to find out what happened. To do that, I have requested
documents from the agency, also from the White House and other
relevant agencies. If confirmed, do you agree to give me and my
staff access to copies of all documents relating to EPA, OMB,
Grace and the White House's involvement with Libby?
Mr. Cochran. Senator, I will provide documents to the
Committee concurrent with all the statutory and constitutional
obligations. I will work with the Committee to provide the
documents that I can provide.
Senator Baucus. Well, that is an easy answer. But you know,
the proof is in the pudding. Because it is easy to hide behind
things like privilege and so forth.
Let me just tell you something. We had a hearing in Libby,
and I asked for information. The EPA gave us some, but then
redacted lots of information. It turned out some of the
information redacted were public press releases by members of
the Senate. There was no reason they should not be given over.
In fact, I might say, the Assistant Administrator, when I asked
her about this, had no idea what was not given to us and did
not know that EPA had excluded certain matter claiming to be
privileged by in fact totally public.
So that answer you gave me is a nice, glib answer. But it
doesn't really indicate operationally how that might work. So
could you answer again that same question, a little more fully?
Mr. Cochran. I don't know all the situation there, sitting
on this side of the table. I certainly don't have access to any
of those documents and discussions on privileges. I will do
what I can to provide all the necessary documents to the
Committee. I have always done that. I would say, in fact, that
at the beginning of the North Pacific Fishery and Management
Audit, an official at NOAA wanted to withhold documents from
us, and that just didn't last. It didn't last for about a day.
Senator Baucus. Let me just remind you, the Inspector
General Act states clearly, ``Nothing in this section or any
other provision of this Act shall be construed to authorize or
permit the withholding of information from the Congress or any
other committee or subcommittee thereof.''
Mr. Cochran. I will enforce, I will live up to the measures
of the Act as I did when I was at the Commerce Department. I
also want to note that another audit I directed, I recommended
administrative action against a contracting officer, it was the
first time it had been done, for allowing excessive costs in
National Weather Service offices.
Senator Baucus. Well, I just urge you to think more
clearly, more deeply how you might be more forthcoming the next
couple of days and weeks. Because that response was basically,
to be honest with you, is a typical bureaucratic response. It
is not one that gives the people of Libby much comfort. We are
going to find out exactly what happened here, and the degree to
which there was some kind of a cover-up at the EPA, IG and so
forth.
Mr. Cochran. It is driven more by my not having intimate
knowledge of the details, because I can't, sitting on this
side, and not for lack of desire to work with the Committee.
Senator Baucus. All right.
Senator Boxer. Senator, do you want some more time?
Senator Baucus. Can I have a couple minutes?
Senator Boxer. You can have it, yes, and I will extend----
Senator Baucus. I will indulge----
Senator Boxer. Take as much as you want.
Senator Baucus. I don't want to take advantage of my
colleagues, here.
Senator Boxer. Well, we are going to give you another 3
minutes.
Senator Baucus. OK, three.
A great concern also is, how do you view your job? Are you
a bean counter?
Mr. Cochran. No, sir.
Senator Baucus. Or are you somebody who is going to stand
up and blow the whistle when something is not right?
Mr. Cochran. Sir, the term performance audit is a really
broad term. Under the Government Auditing Standards, there are
actually five different types of those audits. There is program
effectiveness, economy and efficiency, internal controls,
compliance with laws and regs and prospective analyses. I have
done at least four of the five, maybe all five.
So it is definitely not a bean counter. There is a type of
qualitative program effectiveness report that I have done. I
did for instance numerous offices of the International Trade
Administration overseas. I don't know that any of them saved a
dime. Conducted an audit of the ability of the Patent and
Trademark Office to put its entire official gazette online.
Didn't save a dime.
So I have done those types of reviews. I am certainly
comfortable with those. What you need is qualified people, the
right scope, it needs good planning, et cetera. So I did them
at Commerce, and there isn't anything new in that type of audit
situation that I haven't done and I can already do.
Senator Baucus. I am also, frankly, concerned about the
EPA's failure to declare a public health emergency. It is very
clear, according to press reports, there is a very enterprising
reporter, who is a Seattle PI, long, long lengthy articles,
lots of quotes and documented, it is quite clear that although
declaration is proper and appropriate, that OMB did not want
to, because it would mean taxpayers' dollars would be used to
give medical care to people who are suffering on account of
asbestos diseases. That is basically what it looks like
happened.
Let me just remind you that people in Libby suffer from
asbestos-related diseases at a rate of 40 to 60 times the
national average. For mesothelioma, the cancerous type, 100
times greater than the national average. It is an outrage. Have
you ever been to Libby?
Mr. Cochran. I have not been there. But I have certainly
heard about it. I have been reading about Libby for some time.
Senator Baucus. You know what? If you take this job, you
are going to be going to Libby.
Mr. Cochran. Fine.
Senator Baucus. I will guarantee that.
Mr. Cochran. So do I.
Senator Baucus. That is going to be a condition. That is
going to be a condition. You spend some time up there, so you
know what is going on. It is just so bad.
Anyway, will you commit to completing a rigorous
investigation as to why EPA never declared a public health
emergency?
Mr. Cochran. Senator, when I get in the job, I promise I am
going to take a look at everything that is going on in Libby. I
don't know if there is something already underway as far as an
investigation. I look forward to working with the Committee and
with you and your office.
Senator Baucus. I asked a different question. Will you
commit to complete a rigorous investigation as to why Libby was
never declared a public health emergency? Will you, as IG, make
that commitment and declaration here today now?
Mr. Cochran. I will certainly take a long look at it,
Senator, and I can commit to that.
Senator Baucus. I said--OK, here are the words. You,
Inspector General, complete a rigorous investigation, not
anybody else, you, into why EPA never declared a public health
emergency. I want you to dig into it, get to the bottom of it,
you personally, IG, if you are the IG. You may not be the IG.
But if you are the IG, will you make that public, solid, firm
commitment here today that you will do that?
Mr. Cochran. I will make the commitment to do everything
possible to uncover what is going on in Libby and take care of
that situation.
Senator Baucus. No, that is not the question I asked. Let
me restate the question. Will you commit to complete a rigorous
investigation as to why the EPA never declared a public health
emergency, never declared a public health emergency? Will you
conduct a rigorous investigation as to why that declaration
never occurred?
Mr. Cochran. Yes, I will.
Senator Baucus. You will do that?
Mr. Cochran. Yes, I will.
Senator Baucus. Thank you.
Senator Boxer. Senator, if you would like to stay for
another round.
Senator Baucus. My time has expired.
Senator Boxer. Thank you.
Senator Craig.
Senator Craig. Mr. Cochran, first and foremost, thank you
very much for allowing yourself to be nominated to this very
important position.
The Senator from Montana and I share some very common
ground. He has a Superfund site, I have a large Superfund site.
It is old mine legacy, what we know now we didn't know 100
years ago or 50 years ago, but we know it now. A very large
chunk, in fact, one of the largest Superfund sites in the
Nation, is in the great old Coeur d'Alene mining district of
north Idaho. His was asbestos, mine was lead. We have worked
our way through a decade of cleanup.
I have constantly been on EPA, along with other agencies
associated, to make sure it got done right and thoroughly, and
I don't blame the Senator from Montana for pursuing this. You
have to, you must. Not only because of the legacy that must be
cleaned up, if those communities are ever to experience
economic and human vitality again, but also those who in a very
innocent way were damaged, injured, or lost their lives as a
result of it. We now know a great deal more about asbestos and
lead than we ever did before, and obviously, from what we know
now, this Country, our Government is doing everything it can to
make sure that it is not allowed into the mainstream of human
association and a lot of other reasons.
So I am pleased that the Senator from Montana is pursuing
what he is pursuing. If there are still outstanding legal
issues, and I don't know that of Libby, then obviously there
are difficulties. There were some for a time in Idaho, in which
you pressed but could not legitimately get information, because
there was a legal process underway. But I simply know of Libby,
I don't know the details of it. But we share a similar kind of
environment.
Let me ask you these questions, because I think it is
important that we understand your broad, along with your
specific, capability. When you were at the Office of Inspector
General at the Department of Commerce, 1990 through 2001, how
broad was your auditing experience? I think you listed five
different types of audits, and you had done at least four. If
you could give us that kind of specificity, I think it would be
very important.
There are good audits, if you will, there are positive
reports to be made sometimes. Sometimes it is right to tell the
right story that is there, that sometimes we just forget about,
when and audit is produced and all the right things are found,
versus the negatives. Because I think not only does the public
and does Congress want to hear what isn't going on right, but I
think there is also a responsibility to tell what may be going
on right. Would you respond to your ability in those kinds of
audit differences?
Mr. Cochran. Thank you, Senator. Yes, I conducted audits of
all types of agency activities, grantees, contractors, program
effectiveness audits, audits to determine if a program was
actually working, the compliance audits to determine if they
are actually in compliance with laws and regulations. Then
typical, you know, some typical bean counter audits that are
part of the standard inventory, bank card audits, travel charge
card, et cetera. I covered every agency of the Commerce
Department.
I would say also that I would look forward to trying to
assist the agency in developing best practices. David Williams,
the current Postal Service Inspector General, has conducted a
number of audits under what he calls value propositions with
the agency, and he conducted the last peer review at EPA IG. If
confirmed, I will look forward to meeting him and discussing
how to take that structure into the EPA IG office.
Senator Craig. How comfortable will it be for you to switch
subject matter to the management of EPA and associated issues
from your current emphasis on counter-terrorism?
Mr. Cochran. I have done it before. I don't think it would
be difficult. I have done it before. I did it when I moved from
the Inspector General's office when I was selected to be the
first senior oversight counsel at House Financial Services. I
moved into financial institutions, insurance, housing.
Actually, inspectors general switch agencies all the time.
David Williams is on his fifth agency. He was the Acting
Inspector General at HUD when I was on the committee, while
simultaneously serving at the IRS as the Inspector General for
the IRS. Also, obviously I am not going to be alone there, I am
going to have upwards of 300 dedicated professional people with
hundreds of years of experience who have done outstanding work
for EPA and the Congress and the taxpayer. I look forward to
working with them if confirmed on the matter.
Senator Craig. You speak of a variety of audits, audits of
efficiency, audits of effectiveness, audits of some might call
it bean counting, but effective use of taxpayers' money. How
many tax dollars have you saved the American public by being an
auditor to date?
Mr. Cochran. Well, it is upwards of tens of millions. We
try to be careful in the quantification. But for instance, the
audit of the National Weather Service office buildings where
the contracting officer wasn't controlling the costs, we saved
at least $10 million there. When the Economic Development
Administration sold a steel mill that had been in its inventory
for years, back to the 1970s, and we found they could release
an environmental reserve worth $61 million for better use in
EDA's programs.
NOAA had a series of unliquidated obligations worth $10
million one year and $30 million the next year that we helped
unlock, instruments that hadn't been liquidated for upwards of
15 years and they could use that for other purposes. So it is a
lot of money.
Senator Craig. Madam Chairman, one more question, if I may?
Senator Boxer. Yes.
Senator Craig. As an inspector general, and you are an
interesting and extremely important group of people across the
system of our Government, because we oftentimes refer to the
work done or not done through the offices of the inspectors
general of the different agencies. It is a basis from which
chairmen, ranking members, all members of the Senate and the
Congress look for information as to what an agency is or is not
doing appropriately.
Do you have an inspector general or someone who, in that
line of work, current or retired that you view as the model,
the kind of person you see yourself being in a role at EPA?
Mr. Cochran. I already mentioned David Williams, who has
been very effective with a number of agencies. I was very
impressed with the way Glenn Fine at Justice and the FBI
director handled that very sensitive national security letter
audit in which you had Mr. Fine release the audit and then the
next day the director of the FBI sits in front of open
microphones and says, I didn't do this, I didn't do this, and I
promise to do this. That takes weeks, months of constant
communication and agreement toward the findings and
recommendations. That was a great example.
I worked with Sherman Funk years ago at the Commerce
Department and Jeff Rush and Gaston Giani, when they were at
the Treasury and FDIC, respectively, and I was on the
committee. I worked with Democratic staff on the committee to
start a number of audits and special projects for Congress, and
with the GAO also.
Senator Craig. Thank you very much, Andrew.
Mr. Cochran. Thank you, Senator.
Senator Craig. Madam Chairman, thank you.
Senator Boxer. Thank you, Senator Craig.
Senator Lautenberg.
Senator Lautenberg. Thank you, Madam Chairman.
Mr. Cochran, I mentioned the Federalist Society and your
affiliation there. Could you describe their attitudes about
environmental programs? They are opposed to larger parts in
Government, et cetera. How do they portray those?
Mr. Cochran. Senator, I have been on the executive
committee of the financial services and e-commerce practice
group. There are different practice groups. Honestly, I haven't
paid any attention to the environmental group. I have been just
shoehorned in there. What we have talked about is State versus
Federal regulation of financial services, financial
institutions, the proper role of attorneys general and
governors of State and, for instance, New York State Banking
Commission, and financial institutions.
So I haven't really touched the environmental part of the
Federalist Society.
Senator Lautenberg. Thanks very much. I find your statement
a little surprising, and obviously you are a person with a lot
of experience. But not to be looking at what the organization's
principles are as opposed to the finances, as contrasted to the
interest in the financial side, I think is what has gotten a
lot of corporate America into serious problems, looking at the
balance sheet and the financial statements, but not at the
purpose, at the mission.
I would ask you to take a look and send me a note about
what their policies are, so that we both have a clear idea what
they are, and that--and I won't ask you to--I will reserve the
opportunity to ask further questions when I get that
information.
How about whistleblowers? Do you think they are an
important source of information for inspectors general?
Mr. Cochran. Yes, they are, they have been very important.
Actually, the North Pacific audit started with a letter from
the outside, an outside interest group with all the pertinent
facts we needed to start that audit. If it hadn't been for
that, I doubt we would have done that very sensitive audit.
Senator Lautenberg. So you would welcome that source of
information, and make sure that these people are protected from
recrimination?
Mr. Cochran. Certainly. Congress and the Executive Branch,
I believe, have agreed recently to provide additional
protections. If they have done that, that is fine. I worked
with whistleblowers at the Commerce Department Inspector
General's office all the time.
Senator Lautenberg. We have a situation in New Jersey that
I think if you go through the 50 States, probably the District
as well, you can find situations that are seriously neglected
by no attention from EPA or poor decisions on their part. We
have one at a place called Ringwood, New Jersey. I don't know
whether you saw the recent decision to relieve Ford of any of
its responsibility for the dumping of paint and chemicals all
over the area in a little town in New Jersey that has a
population of Native Americans. I have been up there several
times and looked at the material that they have left lying
around.
Now, would a decision like that come in any way before the
IG to see whether or not that decision is appropriately made?
Mr. Cochran. Well, I would take a look, again, it is hard
to speak on this side of the table. But if the current
inventory, and I noticed there is a new Inspector General
report on Ringwood, and see where that is headed and resolve
the recommendations in conjunction with the agency and pursue
that.
Senator Lautenberg. What we see now happening is that the
agency made decisions that didn't square with the reality. For
instance, post-9/11, the agency made a decision, made a
statement that said people were not in danger as a result of
the aftermath of 9/11, the exposure to poor air quality, the
building materials, et cetera. We are finding now that there
are people, 6 years later, who have serious illnesses, life
debilitating conditions. At what point does the IG look at
something like that and say, challenge a decision that is made?
Mr. Cochran. Senator, I want to address that first by
telling you that the issue has always been close to my heart,
because of my visit to Ground Zero with a group of
Congressional staff in 2001, November 2001, where I stood on
that small wooden platform at the edge of the debris field. I
can't forget the above-ground wreckage and the smoldering ruins
from below, the numbed faces of the rescue workers. They had to
hose down the area constantly, wear the masks. I will remember
the odor and the smell forever.
So I have followed that issue on the counter-terrorism blog
and as a consultant. It is one of the things that motivates my
work for 9/11 victims here on the Hill.
Senator Lautenberg. Well, I would hope that there is a
specific action that can be taken to look at these things. I
don't know when a challenge is made to an important decision
like that, but obviously the wrong decision. There can't be a
non-consequential position on that and say, okay, someone
decided that everything was going to be all right, and it was
far off the mark.
Again, I don't want to extend your authority, please note
that if I do here, as the IG. But is there a point in time when
appeals are made and who would review something like that? If
there was an appeal to EPA that said, no, you're wrong, there
are lots of sick people out there and we ought to take some
responsibility for it?
Mr. Cochran. I don't know the exact answer to that
question, Senator. As management oversight, I am not an
advocate for policy, but that is something that is an issue, of
course, that will arise if I am confirmed.
Senator Lautenberg. Madam Chairman, I will have some other
questions for Mr. Cochran. There is one thing if I may take a
couple of seconds more.
There is strong evidence that EPA, the Department of
Transportation and the White House coordinated a lobbying
effort against the Pavely Waiver. This waiver would allow
California and other States to have decreased emissions from
their cars and not be overridden by the Federal Government.
Is it appropriate for EPA to be involved in a lobbying
campaign to defeat a waiver like this?
Mr. Cochran. Senator, I have read something about that, but
that is something that if I am confirmed, and I arrive at the
agency and that is still an issue, I will look forward to
working with EPA and the Committee on that. I can't make a
judgment on it at this time. If it is still an issue when I----
Senator Lautenberg. It is an issue and a question of
preemption that has to be clearly examined, Madam Chairman.
Mr. Cochran. It could be, if the Committee requested, I
don't know if the Committee requested an audit of the waiver
decision process, if that has already been done, or if the
office has already started it. I don't know.
Senator Lautenberg. I would ask that you also take note of
that and get back to me, please. Thank you.
Senator Boxer. I think that was very important. I am going
to pick up on it.
Senator Isakson.
Senator Isakson. Thank you, Madam Chairman. Thank you, Mr.
Cochran, for your willingness to serve.
I don't like hypothetical questions, but sometimes it is
impossible in your position to answer a historical question, in
a hypothetical circumstance. But let me ask you a hypothetical
question, in your responsibilities, if you are appointed. If in
the course of audit or inspection or investigation within the
Department you came upon information that you clearly indicated
there may be an impropriety within the management of the
Department, what action would you take? Where would you go?
Mr. Cochran. I would go to the counsel to the Inspector
General and the experienced, dedicated professionals in the
Office of Investigations. Also, what is the recommendation,
what are the facts. It is not going to matter to me that there
is a senior official implicated. Honestly, I have been involved
already in audits in which senior officials were frankly,
embarrassed. It didn't change any of the audit findings or
recommendations.
Senator Isakson. That office is an office that serves all
IGs, is that correct?
Mr. Cochran. Well, there is a counsel to the IG in the EPA
IG office. Of course, the EPA IG has a number of dedicated
outstanding professional investigators.
So that is where the recommendation is going to come from
on cases. I am not going to be driven by somebody's office
title.
Senator Isakson. You were in the House Financial Services
Committee, I take it, during the Sarbanes-Oxley years?
Mr. Cochran. For better or for worse, yes.
Senator Isakson. You were there specifically during the
investigations of the accounting scandals that resolved around
WorldCom, Global Crossing and Enron, is that correct?
Mr. Cochran. Yes, sir.
Senator Isakson. You were there when Sarbanes-Oxley became
law, first Sarbanes' initiation here and then Oxley's
iterations in the House and the final law, is that correct?
Mr. Cochran. Yes, sir.
Senator Isakson. Nobody has ever accused that of being
anything other than one of the more effective, far-reaching
pieces of legislation in the history of the Congress of the
United States of America, I would think.
Mr. Cochran. Yes, sir, thank you. The investigations
involved stepping on a lot of toes in the business world, I
might add.
Senator Isakson. A lot of connected toes in the business
world.
Mr. Cochran. Yes, sir.
Senator Isakson. You made reference, you say you also
started and still direct one of the premier online centers in
the world for the dissemination of independent and objective
terrorism/counter-terrorism news and expert analysis. Is that
private or is that part of your function in the Government?
Mr. Cochran. I started that on January 5, 2005, actually I
started in the consulting business in 2004. By the end of 2004,
I saw a need in the marketplace for a single multi-expert Web
site dedicated solely to counter-terrorism facts and news and
analysis.
Senator Isakson. So it is private?
Mr. Cochran. It is private.
Senator Isakson. But nothing in your public
responsibilities has been merged with that private
responsibility, has it?
Mr. Cochran. No. No, sir.
Senator Isakson. Last question. You made reference in your
testimony, you worked in partnership with Democratic committee
staff to ask GAO and the Inspectors General of Treasury, HUD
and the financial regulators to conduct audits and report to
Congress on issues such as the response of the regulators and
financial markets to 9/11. Would you expand on that?
Mr. Cochran. Soon after the attacks, the committee
generated requests to GAO for a comprehensive series of audits
and reports. I worked to basically kind of slice that bologna
up into smaller pieces so it could be done more quickly. For
instance, I think most Americans don't realize the Herculean
effort it took to reconstruct the technology of lower
Manhattan, how the markets and the telecom companies and the
Federal Reserve System did a heroic job to do that. The effort
out of that to build a stronger critical infrastructure
protection scheme, that is what we asked GAO and the financial
regulators to report on.
Senator Isakson. When you made reference to working in
partnership with the Democratic committee staff, was that your
initiation with them or their initiation with you to get
involved in that?
Mr. Cochran. We worked together often on the Financial
Services Committee. I had a co-counsel for oversight matters,
and we worked together all the time.
Senator Isakson. You worked as a team?
Mr. Cochran. It is close to a team. We helped each other
provide information and issues and prepare questions.
Senator Isakson. Thank you very much.
Mr. Cochran. Thank you.
Senator Boxer. Thank you.
I don't know exactly where to start, but I will ask you
this. Mr. Cochran, how many program evaluations, not audits,
but evaluations of environmental programs have you led in your
professional career?
Mr. Cochran. Madam Chairman, I had a copy of the North
Pacific audit in a box at home. All those contents, it is not
online anywhere, unfortunately, and I couldn't find out exactly
how many audits or evaluations of any type I did over that 11-
year period.
Senator Boxer. No, no, no. I am just saying environmental
programs.
Mr. Cochran. Well, at least one on the Council and two
audits of the use of Superfund monies by Commerce Department
programs. Then some other Weather Service audits.
Senator Boxer. But I am talking about not audits, but
evaluations of environmental programs, whether the
environmental program was meeting its goals, was being
enforced, that there was no corruption, that kind of thing. How
many?
Mr. Cochran. At least the one.
Senator Boxer. The one on?
Mr. Cochran. On the North Pacific Fishery Management
Council.
Senator Boxer. OK, one. OK. I want to reiterate Senator
Lautenberg's question. Do you believe it is appropriate for EPA
to be involved in a lobbying campaign to defeat the California
waiver?
Mr. Cochran. It all comes down to what you define as a
lobbying campaign. I don't know exactly what they have done.
Senator Boxer. Well, it is in the record. There have been
hearings in the House that there were phone calls made from the
Department of Transportation to members of Congress that the
EPA was involved in it. So direct phone calls to members of
Congress, telling them to be against the California waiver. Do
you believe it is appropriate for the EPA to involve in such a
lobbying campaign to defeat the waiver?
Mr. Cochran. It is improper. I know it is improper for
agency officials to lobby, and then there is the provision of
information. A matter like that should be taken up within the
investigatory structure of transportation, of DOT.
Senator Boxer. Well, this is EPA was involved in it.
Mr. Cochran. Or EPA, if they are involved.
Senator Boxer. So you don't think it is appropriate for the
EPA to have been involved in a lobbying campaign to defeat the
California waiver?
Mr. Cochran. If the facts meet the requirements in law for
agency, for the improper lobbying of the Hill by agency
officials, that is a matter for EPA's investigators to take up.
Senator Boxer. Well, if you are the IG, do you commit to me
that you would launch an investigation into this improper
lobbying by EPA?
Mr. Cochran. I will take a look at it, yes, Madam Chairman.
Yes, I will.
Senator Boxer. You commit to me that you will launch an
investigation into the involvement of EPA in a lobbying
campaign to defeat the California waiver, yes or no?
Mr. Cochran. Yes, I will.
Senator Boxer. OK. I wanted to ask you, I was looking at
your resume, which is very interesting, and you have had a lot
of interesting experiences. I wanted to go over a couple of
these items on here.
What is the Virginia Ridge Foundation?
Mr. Cochran. It is just a girls club that my wife started
to provide cooking classes for young girls, based on something,
and that friends ran in Maryland. We never did anything with
it, honestly, but the Committee form asked me for all the
memberships.
Senator Boxer. Because you are still president of it.
Mr. Cochran. Yes, I know, but we are going to get rid of
it.
Senator Boxer. OK, got you. What is the Counter-Terrorism
Foundation?
Mr. Cochran. The Counter-Terrorism Foundation is the
vehicle for helping to fund and manage the counter-terrorism
blog. It has tax-exempt status. It was started last year. I am
one of the board members. There are five other board members.
Senator Boxer. What is your experience in counter-
terrorism?
Mr. Cochran. Well, I started into the issue with the House
Financial Services Committee. I was very active in conducting
terrorist financing investigations for the 3 years I was there.
Then when I came out, after representing companies and some
non-profit organizations, and, well, not really organizations,
one expert, Steve Emerson, an investigative project. Then in
2005, started representing the Motley Rice law firm on behalf
of its terrorism victims who were seeking justice in court.
Senator Boxer. So I assume that if you get this job, you
won't be doing that any more?
Mr. Cochran. That is right. I would give it all up. I have
signed an ethics agreement on that already.
Senator Boxer. Right. OK. Do you know Steven Johnson?
Mr. Cochran. I only met him once. I had the one interview
with him in April and that was it.
Senator Boxer. An interview about?
Mr. Cochran. About the job. It was just kind of a standard
job interview and the situation, the White House called, I
talked with them, I went to EPA, met with them. That was it. I
didn't know him before and I haven't seen him since.
Senator Boxer. I am sorry, say that again?
Mr. Cochran. I didn't know him before and I haven't seen
him since.
Senator Boxer. Yes, but you were interviewed by Steven
Johnson for the job of Inspector General?
Mr. Cochran. Yes, it is standard procedure.
Senator Boxer. I am just asking questions.
Mr. Cochran. Yes.
Senator Boxer. You thanked him in your opening statement
because he is supporting your nomination, is that where that
is?
Mr. Cochran. Yes.
Senator Boxer. Now, Mr. Cochran, when working for GAGE, did
you ever perform any work for the telecommunications company
Vonage?
Mr. Cochran. No, I did not.
Senator Boxer. Now, Mr. Cochran, news reports indicate that
Federal attorneys may be investigating GAGE for potential
violations of Federal law when lobbying for organizations that
receive Federal money through earmarks. Are you aware of that
investigation?
Mr. Cochran. No. I have never been asked any question about
that, and I don't know to what organizations they would be
referring.
Senator Boxer. OK. Did you ever lobby any members of the
Senate in your position at GAGE or their staffs? Did you ever
phone them about anything?
Mr. Cochran. Well, sure. I have lobbied, I have----
Senator Boxer. What would that be?
Mr. Cochran. I met with numerous members and staff of the
Senate to, for the concerns of clients.
Senator Boxer. Give us an example, please. What lobbying
did you do toward, for example, members of this Committee?
Mr. Cochran. OK. Well, not members of this Committee, I
don't think. For instance, there is a bill on the Floor this
week which would authorize national subpoena authority by both
sides in the 9/11 aviation trials. I worked with Senate
Judiciary staff on that. It is now a bipartisan bill with
support from both sides of the aisle.
Senator Boxer. So could you make available for this
Committee the members or staff of the Senate that you have
lobbied and what you have lobbied them on?
Mr. Cochran. I can.
Senator Boxer. Thank you very much.
Mr. Cochran, do you think there is a difference between
conducting an audit and evaluating a program?
Mr. Cochran. Well, as I said, the term performance audit,
really I think there might be a misunderstanding. It is really
a broad term. So it can include a program evaluation, and I
think people see the word audit and think numbers. It doesn't
have to be numbers in the Inspector General context. So it can
include program evaluations.
Now, in the Inspector General world, there are offices of
program evaluations that do quicker turnaround inspections or
program evaluations that meet different types of standards. But
I conducted all types.
Senator Boxer. Well, EPA and Department of Commerce say
that there is a definition for what evaluators do. Do you know
what that is?
Mr. Cochran. Somewhat. But it differs. I read that, I don't
have it committed to memory.
Senator Boxer. OK. Well, I will say, evaluators plan and
conduct comprehensive reviews of programs and use design and
methodology strategies that maximize innovation, identify new
issues and focus on increased understanding of programs. So
that is why I keep asking, how many program evaluations, not
audits, but evaluations of environmental programs have you led
in your career. You said one you could think of.
OK. All right. I am going to--Senator Baucus.
Senator Baucus. Thank you, Madam Chairman.
Mr. Cochran, several publications have reported that your
current employer, GAGE LLC, is under investigation by the U.S.
Attorney's office for questionable financial dealings. At issue
is whether or not a GAGE client, a Montana-based alliance, used
appropriate dollars to pay GAGE for lobbying services. I don't
presume to know whether these accusations are true, but they
are troubling.
So as Inspector General, if you are, would you be the
conscience of the agency, that is, would you agree to provide
me with a description of the nature of all the work you have
conducted for your clients?
Mr. Cochran. I am sorry, I didn't quite catch that.
Senator Baucus. The nature. I mean, in addition to a list
of the clients, the nature of the work that you did for each of
those clients.
Mr. Cochran. I didn't do any work for Enza. My work at GAGE
started September 1, 2005 as a result of a merger. Quite
honestly, I have never done anything for any Montana-based
client. So I will provide----
Senator Baucus. You began when? What date?
Mr. Cochran. September 1, 2005. When I came off the Hill,
January 1, 2004, I worked for a firm named Public Policy
Partners. We merged with GAGE September 1, 2005.
Senator Baucus. But there are reports that the U.S.
Attorney's office is looking into improper financial dealings
with GAGE.
Mr. Cochran. No one has asked me any questions. My life is
an open book. I have just never----
Senator Baucus. Are you aware of this investigation?
Mr. Cochran. I have read news reports. But I have learned
in 24 years in town to not take as gospel every news report of
every possible investigation.
Senator Baucus. Have there been any discussions in the firm
about this?
Mr. Cochran. I didn't actually, I mean, I am trying to
remember a conversation. There may have been, Senator, I just
don't recall, because since I didn't do any work for Enza--I
have a special niche, the Homeland Security/Counter-Terrorism
niche. That has been my niche at the firm since I came over, an
I have just never done any work for a Montana-based client.
Senator Baucus. I am sorry, the home what?
Mr. Cochran. Homeland Security and Counter-Terrorism.
Senator Baucus. I am curious, what does that have to do
with the Inspector General for an environmental agency? That is
very different, isn't it?
Mr. Cochran. Well, it is different, except that the
standards under which every Inspector General operates are the
same. Basically, I would be switching subjects.
Senator Baucus. Well, there is something to that, but
again, to some degree, I don't how to state this, if you want
to have a heart transplant, you go to a cardiac surgeon, you go
to somebody who knows the subject. If you want to have a really
good IG in the environmental area, I suppose it is different
than the IG at the Defense Department, might be different than
the IG at the Agriculture Department. Agriculture is a little
bit different from Defense, different from environmental
issues.
Mr. Cochran. The Inspector General Act envisions a cadre of
trained professional evaluators, auditors, inspectors general.
That is why so many of them have moved around from agency to
agency.
Senator Baucus. But it sounds a little bit like just the
bean counter game, just looking at the financials. Irrespective
of policy.
Mr. Cochran. But there is still a group of up to 300
dedicated professionals, many of whom have been there for years
and years. So the Inspector General doesn't plan or conduct the
audit work by himself. He has a strategic vision and a mind
set, and he concludes the audits and the reports. But the
professionals are right there behind him all the time.
Senator Baucus. But I think EPA's Inspector General, who is
more in the nature of a whistleblower, found some things that
were not quite right.
Mr. Cochran. All Inspectors General eventually become
whistleblowers, and investigations are an important part of all
offices of inspectors general.
Senator Baucus. It is also true there are some IGs who I
think are pretty tepid, lapdogs of agencies. That is also true.
So how are we going to figure out what camp you are in? How do
we know what kind of a person you really are?
Mr. Cochran. My consulting practice at this point is really
heavily oriented towards helping terrorism victims. Honestly,
there are companies and countries who won't hire me because of
the clients I have. One of my main clients is a trial
litigation firm that has pursued the InterBank in civil suit,
pursued airlines and airports over aviation security on 9/11. I
think my career actually screams objectivity and independence,
both in private practice, on the Hill, on the House Financial
Services Committee, and in the Inspector General's office.
Senator Baucus. What are your views about climate change?
How aggressively should the United States move to address
climate change issues?
Mr. Cochran. Inspectors General are not a policy----
Senator Baucus. Tell us your personal view. You are a
citizen, Mr. Andrew Cochran. You are an American citizen. You
read the newspapers, you have a personal view. What is it?
Mr. Cochran. It is a very important issue. It needs to be
addressed. If confirmed as Inspector General, whatever programs
and policies----
Senator Baucus. I am not talking about that. I am just
talking about you as a--I am trying to figure out who you are.
I am trying to figure out what your inclination is.
Mr. Cochran. I am trying not to bias my independence, bias
one way or another towards one particular view or another. In
case I am confirmed, I just want to assure you that no matter
what the issue, if a policy is put in place or a program at
EPA, that I will faithfully, independently, objectively,
assertively determine whether that policy is being carried
out----
Senator Baucus. Yes, but there is a moral dimension here,
like what is right and what is wrong, which is independent
often of the numbers, whether the balance sheet balances,
whether--you know what I am getting at?
Mr. Cochran. Sure, and it wouldn't be confined to just
whether the numbers balance. It would be whether the program is
being effectively implemented, whatever that program is.
Senator Baucus. So if you were to see, your view, that the
EPA had not conducted toxicity studies, at the same time EPA
was putting out a pamphlet saying to people in Libby, Montana
that these levels are OK, what would you do about that at that
time? Anything? Looks like the numbers are OK.
Mr. Cochran. Offices of Inspector develop annual plans and
then leave room for audits and program evaluations where there
needs to be a quick turnaround, such as the Libby, Montana
evaluation done in the last quarter of last year. That would be
something I would talk with the professionals at the Inspector
General's office and agency management and the Congress, and
outside interest groups, all of which is invited and urged upon
by the auditing standards, to see if there is a way to conduct
a timely program evaluation with dedicated, talented, qualified
professionals.
Senator Baucus. If you are named IG, how long is your term?
Mr. Cochran. There is no set term in law right now,
although there are proposals to change that. It is subject to
removal by the President. It would at this point continue into
the next Administration.
Senator Baucus. It would continue?
Mr. Cochran. Yes, sir.
Senator Baucus. So are you saying it would continue
indefinitely until you were either removed or resigned?
Mr. Cochran. It is not just an indefinite term. It is at
the pleasure of the President. That is what the IG Act
stipulates at this time.
Senator Baucus. Does that mean that the next President
could just find a new IG?
Mr. Cochran. Sure.
Senator Baucus. Because my understanding is, something says
a 5-year term, that it is difficult within a 5-year period,
anyway, for a new President to remove an IG. Is there anything
to that?
Mr. Cochran. I don't know. I have never heard of that.
Senator Baucus. So as far as you are concerned, to your
knowledge, if you are confirmed, you are there solely at the
pleasure of the President?
Mr. Cochran. That is my understanding of the law at this
time.
Senator Baucus. Madam Chairman, I think our understanding
needs to be cleared up a little bit. I am not convinced that
that is exactly the law in this case. But I appreciate it.
Thank you, Mr. Cochran. I appreciate the time you have
taken.
Senator Boxer. Senator Craig?
Senator Craig. I don't know that I have anything
additional. I would be happy to yield to Senator Alexander for
any questions.
Senator Boxer. My understanding is Senator Alexander wants
to introduce a member of the next panel, is that correct?
Senator Alexander. I will be glad to come back and do that.
Senator Boxer. We are at the end here. I have about five
minutes of questions, and I don't know if anyone--Senator
Isakson doesn't, and I don't think Senator Craig does.
Senator Alexander. I will be glad to wait.
Senator Boxer. Senator Craig, did you want to----
Senator Craig. Well, just the last question that I thought
Senator Baucus asked about not only the qualifications but the
terms of an Inspector General. I didn't know there was a
question there. I am now curious, because I thought that
Inspectors General were appointed by Presidents and served at
the pleasure of Presidents and that the term was not a fixed
term.
Mr. Cochran. Correct.
Senator Craig. It could live or die with the coming of a
new President. Is that your understanding?
Mr. Cochran. That is my understanding.
Senator Craig. OK. Well, it was mine, but if there is a
gray area, we need to know about it.
With that, I have no further question, Madam Chairman.
Thank you.
Senator Boxer. I have just a couple. How long did your
meeting with Mr. Johnson last in April when you had that
meeting?
Mr. Cochran. Half an hour, maybe half an hour.
Senator Boxer. What were his questions that he asked you?
Mr. Cochran. He asked me about background and why I want
the job and how I see the mix of, how I see the communication
flow with the Inspector General's office. I said with respect
to audits and program evaluations, that should be constant and
continuous. I cited the Glenn Fine audit of national security
letters.
Then investigations of course are private, secret. He was
fine with that. There was no attempt to influence the direction
of the office or the hiring practices of the office whatsoever.
Senator Boxer. OK, I wasn't asking you that. But you had a
30 minute meeting. What else did he ask you about?
Mr. Cochran. Background, what did I do, standard type of
job interview, actually.
Senator Boxer. Did he mention any particular ongoing issues
that were happening now at the Department?
Mr. Cochran. No.
Senator Boxer. OK. We now have an e-mail that says very
clearly that Steven Johnson gave his OK to DOT to lobby members
of Congress. Do you think that is allowed by law?
Mr. Cochran. I don't know, because I am not an attorney in
that area. I think that is, that requires a legal
interpretation of legal counsel, and to take a look at that.
Senator Boxer. Well, I would call to your attention Chapter
93, Section 1913 that says, ``No part of the money appropriated
by any enactment of Congress shall, in the express
authorization by Congress, be used,'' and it lists a number of
things, and it talks to influence, in any manner, a member of
Congress. Is that clear to you?
Mr. Cochran. That is the first time I have seen that, but
it is----
Senator Boxer. It is the first you have ever seen this and
you are nominated for Inspector General? You were, worked in
the Inspector General's office? I am a little stunned at that.
So given the fact that I have an e-mail here, and I am
picking up on Senator Lautenberg's line of questioning on the
waiver, that we have an e-mail that shows that a CEQ employee
wrote, ``It's OK for Secretary of Transportation to make calls,
I spoke with Steve Johnson this morning.'' So I am asking you
again, now that you know this law and you know we have the e-
mails, do you think this is against the law, what happened
there?
Mr. Cochran. Well, I think counsel to the IG or some other
counsel would have to look at the case law on that, and whether
that e-mail fits that kind of description.
Senator Boxer. OK. Well, I have some concerns here. I think
you are a nice person, believe me, it is nothing personal. But
it took three times for you to agree to do something that
Senator Baucus asked, which I think is a no-brainer to look
into, this horrific situation at Libby. You danced around it
and finally said yes. It took three proddings from me and you
don't know about--I don't know. I am just, I am open, I am not
closed, but I am concerned.
Senator Lautenberg, I am sorry. I didn't realize that you
had come back. Do you have any final questions?
Senator Lautenberg. I want to be here for the next panel.
Senator Boxer. OK. Mr. Cochran, before you leave, I have to
ask you certain questions, I am sorry, in order for this
Committee and other committees to exercise the legislative and
oversight responsibilities, it is important that committees of
Congress are able to receive testimony, briefings and other
communications of information. Do you agree, if confirmed as
Inspector General of the EPA, to appear before this Committee
or designated members of this Committee and other appropriate
committees of the Congress and provide information subject to
appropriate and necessary security protection with respect to
your responsibilities as Inspector General of the EPA?
Mr. Cochran. Yes.
Senator Boxer. Do you agree when asked to give your
personal views, even if those views differ from the
Administration in office at the time?
Mr. Cochran. Yes.
Senator Boxer. Do you agree to ensure that testimony,
briefings, documents and electronic and other forms of
communication of information are provided to this Committee and
its staff and other appropriate committees in a timely manner?
Mr. Cochran. Yes.
Senator Boxer. Do you know of any matters which you may or
may not have disclosed that might place you in a conflict of
interest if you are confirmed as Inspector General of EPA?
Mr. Cochran. No.
Senator Boxer. OK. We thank you very much. Appreciate your
testimony.
We have asked the next panel to come up. Actually, we are
going to ask all the others to come up, right, at this time.
John Bresland, Russell Shearer, Thomas Gilliland, William
Graves, Susan Richardson Williams. We welcome all of you to the
table. While we are doing that, we are very happy to give
Senator Alexander as much time as he may wish to make his
statement. Senator Alexander.
Senator Alexander. Thank you for your courtesy, Madam
Chairman.
I thank you for your expeditious hearings on Tom
Gilliland's nomination and the renomination of Bishop Graves
and Susan Williams.
Senator Boxer. Senator, if you would yield, I erred. Those
last two are not here today. But they have filed their papers.
So this is a hearing on them as well. Please proceed.
Senator Alexander. The reason that is so important is the
Tennessee Valley Authority is the largest utility. It is a
unique agency. It has the capacity for doing some things that
are consistent with what this Committee is trying to do.
For example, in its strategic plan, it is thinking about
how to reduce carbon in its coal plants, how to expand nuclear
power, which is carbon free, it is exploring geothermal and
solar power, which are the more appropriate renewable energies
in our part of the world. Because of the new governance
structure that the Congress has created for the Tennessee
Valley Authority, for the first time it has a modern governance
structure. The President and the Congress have appointed really
talented men and women to the board and they are moving in a
very strong direction to create a charter for reliable, clean,
large amounts of reliable, clean energy for the Tennessee
Valley.
Now, it is in that that I am very pleased the President has
nominated Tom Gilliland. I have heard a good deal about him
from Senator Isakson, who knows his reputation. But the
strength, Madam Chairman, that he brings to the TVA Board to me
seems to be one of legal, business and audit background. This,
as I said, is the largest utility. He has extensive experience
with audits. TVA now has the responsibility, as other agencies,
as public institutions do, of letting the sun shine in on their
business operations. Mr. Gilliland is committed to that.
So I simply wanted to come here today and express my
support for his nomination and to say that I am convinced that
if he should be confirmed, which I hope he is, he will add
business and audit strength to an already strong Board. I thank
you for the time.
Senator Boxer. Thank you so much, Senator. So I will give
up my place here to Senator Lautenberg, because I know he has
some time problems. So please go ahead, Senator.
Senator Lautenberg. Thank you very much, Madam Chairman.
I do have another appointment. This is the Chemical Safety
Board appointment, so it is critical. I wanted to express my
appreciation for Mr. Bresland's appearing. You identified him
as a New Jersey person. We welcome that affiliation, I promise
you. But he also has another redeeming quality, he spent a lot
of years in Ireland. Therefore, he comes with not only the
knowledge that he has gained thoroughly over his career but
also has a certain charm that goes with the individual. I am
pleased to welcome you here, and all of you.
I am going to, Madam Chairman, ask that questions be
submitted and that we hold the record open. New Jersey has a
very active interest, as we have across the Country, in our
Chemical Safety Board. There is so much exposure in the State
of New Jersey, there is a 2-mile stretch identified by the FBI
as the most inviting stretch for a terrorist attack. It is
described as the most dangerous 2 miles, from the Newark
Liberty Airport to the harbor of New Jersey and New York. There
are chemical facilities galore there. Heaven forbid that if
there was an attack on those facilities, 12 million people
would be at risk.
The Chemical Safety Board has enormous responsibly in terms
of making sure that the security measures that are taken are
serious, stringent enough, Madam Chairman, and well financed
enough, domestic security, so that we can give assistance to
the communities and the companies where necessary to make sure
that they are properly protected. I welcome the others of you
here as well. But again, I will reserve the time for questions
to be submitted in writing.
Thank you very much.
Senator Boxer. Senator Lautenberg, thank you. I just need
to say that you have been a true leader on this issue of
chemical safety. I remember when Senator Corzine was here, the
two of you teamed up and worked very well on this, and you have
carried the ball forward with Senator Menendez. So I just want
to thank you very much.
Senator do you have any comments, or should we just go to
the testimony?
Senator Isakson. In the interest of their time, let's just
go to the testimony. But can I do one thing?
Senator Boxer. You can.
Senator Isakson. There are two lovely ladies here I meant
to introduce before. First is Candy. Candy, would you stand up?
Candy Gilliland, this is Tom Gilliland's wife. Next is a lady
that is very familiar to all of us, Emily Reynolds. Emily was
Secretary of the Senate and now serves as Secretary of the TVA
Board.
Senator Boxer. Excellent. Thank you for that.
OK, gentlemen. I am sure you are just thrilled and
delighted, after you sat through the other witness, to take
your place in the hot seats. We really do welcome you, and I
assure you your experience will be a bit different.
We will start with Mr. Bresland, and again, thank you all
for agreeing to hold these positions. Go ahead, sir.
STATEMENT OF JOHN S. BRESLAND, NOMINEE FOR BOARD MEMBER AND
CHAIRMAN OF THE U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION
BOARD
Mr. Bresland. Thank you, Chairman Boxer and distinguished
members of the Committee.
My name is John Bresland. I am honored to appear before you
today to describe my background and to express my strong
commitment to carrying on the important life-saving work of the
Chemical Safety Board.
With me this morning is my wife, Beth, who is sitting over
here. She is an oncology social worker at Sibley Memorial
Hospital here in Washington, D.C.
It is also an honor to have Senator Lautenberg present at
the hearing this morning. We all salute the Senator's
extraordinary leadership on the issue of chemical safety and
his role in establishing the CSB in 1990.
In 2002, the Senate confirmed me as a CSB Board member.
During my 5-year term, I had the privilege of working with
Carolyn Merritt, the Board Chairman, whose 5-year term ended in
August. Carolyn did an exceptional job, and I congratulate her
for that. Through her efforts and the hard work of the Board
members and staff, the productivity and the prominence of the
Chemical Safety Board has increased dramatically. The CSB is
now known around the world as the preeminent independent agency
investigating accidents in chemical plants and oil refineries.
I am convinced that as a result of our investigations and
safety recommendations, lives have been saved and communities
have been protected. I am proud to have been part of Carolyn's
legacy and would hope to continue it and build on it should I
be confirmed.
I believe that my 35 years of experience in the chemical
industry and 5 years at the CSB make me uniquely qualified to
serve as the next chairman. During my career in industry, I
served in high management positions involving responsibility
for worker safety and the environment, including as a chemical
plant general manager and as corporate director of risk
management for Honeywell.
I am totally committed to the mission of the CSB: to save
the lives of workers and to protect the public by conducting
truly independent investigations that pull no punches in
getting to the root causes of tragic industrial chemical
accidents. In my 5 years on the Board, I have strongly
supported our investigations staff in producing fair but
thorough and tough accident reports with appropriate
recommendations to companies, trade organizations, and
Government agencies such as EPA and OSHA. As an active Board
member, I traveled to many accident sites with the
investigation teams to represent the agency and to see first-
hand what had happened.
I believe that the CSB's accident investigations, which are
independent of any company, industry or government influence,
can bring to light serious problems that when corrected will
save lives and reduce worker injuries. I have given more than
100 speeches and presentations on the CSB's work to industry
groups, labor gatherings and other stakeholders. My message is
always the same: you must be committed to safety 100 percent of
the time. Accident prevention is the moral thing to do, it is
also the only rational business model because chemical plant
explosions and fires are so destructive and result in severe
economic consequences. Businesses must be good stewards of
their workers and good neighbors in their communities.
If confirmed, my goals for the CSB include first,
continuing to conduct tough, independent investigations of
chemical plant accidents; second, increasing the size and the
expertise of our investigative staff; and third, broadening our
outreach, especially to smaller businesses and to the emergency
preparedness and response communities.
Finally, I fully support the testimony of Chairman Merritt
before this Committee in July where she called for improvements
to the CSB's authorizing statute, which would strengthen and
clarify the Board's investigative authority. These changes are
needed to assure the continued quality and speed of the Board's
investigations. If confirmed, I look forward to working closely
with the Committee on these issues.
In conclusion, it has been a privilege for me to serve on
the Chemical Safety Board and to have worked with the talented
and dedicated people at the CSB. As a first generation American
who had the opportunity to come to the United States in my 20's
and became a citizen in 1983, I am deeply honored to have been
nominated by the President to serve as a chairman of the
Chemical Safety Board. I offer you my integrity, my judgment
and my experience.
If confirmed, I commit to work tirelessly to improve the
safety of the chemical processing and oil refining industry in
the United States. Thank you for the opportunity to appear
before you here today.
[The prepared statement of Mr. Bresland follows:]
Statement of John S. Bresland, Nominated to be a Board Member and
Chairman of the U.S. Chemical Safety and Hazard Investigation Board
Thank you, Chairman Boxer and distinguished members of the
committee.
My name is John Bresland. I am honored to appear before you to
describe my background and to express my strong commitment to carrying
on the important, live-saving work of the Chemical Safety Board.
With me this morning is my wife, Beth, who is an Oncology Social
Worker at Sibley Memorial Hospital.
It is an honor to have Senator Lautenberg present at the hearing
this morning. Senator, we all salute your extraordinary leadership on
the issue of chemical safety and your role in establishing the CSB in
1990.
In 2002, the Senate confirmed me as a CSB Board member. During my
five-year term I had the privilege of working with Carolyn Merritt, the
Board Chairman, whose five year ended in August. Carolyn did an
exceptional job and I congratulate her. Through her efforts and the
hard work of the Board members and staff the productivity and the
prominence of the Chemical Safety Board increased dramatically. The CSB
is now known around the world as the preeminent independent agency
investigating accidents in chemical plants and oil refineries. I am
convinced that as a result of our investigations and safety
recommendations lives have been saved and communities have been
protected. I am proud to have been a part of Carolyn's legacy, and
would hope to continue it and build on it should I be confirmed.
I believe that my 35 years of experience in the chemical industry
and 5 years at the CSB make me uniquely qualified to serve as the next
chairman. During my career in industry I served in high management
positions involving responsibility for worker safety and the
environment--including as a chemical plant general manager and as a
corporate director of risk management for Honeywell.
I am totally committed to the mission of the CSB--to save the lives
of workers and to protect the public by conducting truly independent
investigations that pull no punches in getting to the root causes of
tragic industrial chemical accidents.
In my five years on the Board I have strongly supported our
investigations staff in producing fair but thorough and tough accident
reports with appropriate recommendations to companies, trade
associations and government agencies such as EPA and OSHA. As an active
board member, I traveled to many accident sites with the investigation
teams to represent the agency and to see first hand what had happened.
I believe that the CSB's accident investigations--which are
independent of any company, industry, or government influence--can
bring to light serious problems that, when corrected, will save lives
and reduce worker injuries. I have given more than 100 speeches and
presentations on the CSB's work to industry groups, labor gatherings,
and other stakeholders, and my message is always: you must be committed
to safety 100% of the time. Accident prevention is the moral thing to
do. It is also the only rational business model, because chemical plant
explosions and fires are so destructive and result in severe economic
consequences. Businesses must be good stewards of their workers and
good neighbors in their communities.
My goals for the CSB include:
First, continuing to conduct tough, independent
investigations of chemical accidents
Second, increasing the size and expertise of our
investigative staff;
Third, broadening our outreach, especially to smaller
businesses and to the emergency preparedness and response communities.
Finally, I fully support the testimony of Chairman Merritt before
this Committee in July, where she called for improvements to the CSB
authorizing statute which would strengthen and clarify the Board's
investigative authority. These changes are needed to assure the
continued quality and speed of the Board's investigations. If
confirmed, I look forward to working closely with the Committee on
these issues.
In conclusion, it has been a privilege for me to serve on the
Chemical Safety Board and to have worked with the talented and
dedicated people at the CSB. As a first generation American who had the
opportunity to come to the United States in my 20s and who became a
citizen in 1982, I am deeply honored to have been nominated by the
president to serve as Chairman of the Board.
I offer you my integrity, my judgment, and my experience.
If confirmed, I commit to work tirelessly to improve the safety of
the chemical processing and oil refining industry in the United States.
Thank you for the opportunity to appear before you today.
Response from John S. Bresland to Additional Questions
from Senator Sanders
Question 1. The Chemical Safety and Hazard Investigations Board
plays a critical role in investigating industrial chemical accidents.
This continued success is dependent on an effective working
relationship with state and local authorities. Concerns have been
raised about the CSB's response to previous incidents, especially
regarding the CSB's procedures for notifying incident commanders prior
to its arrival on scene. What specific steps has the CSB taken to alert
incident commanders of its intent to deploy investigators to an
incident previous to their arrival?
Response. I agree that the CSR's success is greatly aided by
effective working relationships with state and local authorities,
including local incident commanders who oversee emergency response
activities under the National Incident Management System (NIMS). For
the most part, we have established effective working relationships with
state and local officials at sites around the country--despite the
CSB's relatively short history and limited staffing. States and
localities derive substantial benefits from the CSB's independent
safety investigations, recommendations, and outreach, which lead to
safer chemical facilities and communities around the country. As
chairman, I will be fully committed to continuing and growing the CSB's
positive working relationships with state and local officials.
As a matter of course prior to deploying any investigative team, we
notify:
Site management
Corporate management
Local tire, police, and emergency management,
including the incident commander if one has been designated
Fire marshal, if on scene or expected on scene
The Occupational Safety and Health Administration
(OSHA), if on scene or expected on scene
The Environmental Protection Agency (EPA), if on the
scene or expected, and any EPA on scene coordinator
The Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF), if on scene or expected
The Agency for Toxic Substances and Disease Registry
(ATSDR), in the event of off-site consequences
The Local Emergency Planning Committee (LEPC)
chairman or Office of Emergency Management
The National Transportation Safety Board (NTSB), if
the incident involved a ship, barge, railcar, tank truck or
pipeline located at a fixed facility
Other national or regional response teams
Union(s) representing workers at the facility.
In addition, in cases where we have not have prior dealings with
specific state or local fire services, we often contact organizations
such as the National Association of State Fire Marshals (NASFM) to help
establish positive relationships with relevant officials before our
investigators arrive. NASFM has strongly supported the Board's mission,
and their recent efforts at facilitating these local contacts have been
particularly helpful.
I believe the ``concerns'' noted in the questions relate to certain
claims made in an unsigned, one-page statement distributed by several
representatives of the International Association of Fire Chiefs (IAFC)
in September 2007, more than 10 months after the CSB's deployment to a
major chemical accident site in Danvers, Massachusetts, in November
2006. The CSB has thoroughly refuted those claims in a 16-page letter
to the Committee last month, which I include for the record.
Specifically, the CSB letter explains how, prior to the arrival of
our investigators, the agency had notified the Massachusetts state tire
marshal, the Danvers Fire Department, the EPA, the U.S. Coast Guard,\1\
the Danvers town manager, the Danvers director of public health, and
the offices of Representative John Tierney, Senator Edward Kennedy, and
Senator John Kerry. When the CSB team arrived at the site on November
24, team members promptly approached town officials and the incident
commanders (bearing appropriate, signed letters of authority under the
Clean Air Act) and described the mission of the agency and the reasons
for the deployment. Unfortunately, after all these notifications and
contacts had occurred, the CSB was blocked from the accident site for a
period of five days.
---------------------------------------------------------------------------
\1\ We notified the Coast Guard because that agency was present at
the accident site, due to its proximity to a navigable river, and there
was concern about a potential impact of firewater runoff on those
waters.
Question 2. In Homeland Security Presidential Directive-5, the
Administration established a ``single comprehensive approach to
domestic incident management . . . to ensure that all levels of
government have the capability to work efficiently and effectively
together. . . .'' Under this directive, the National Incident
Management System (NIMS) was developed ``to provide a consistent
nationwide approach for Federal, State, and local governments to work
effectively and efficiently together to prepare for, respond to, and
recover from domestic incidents, regardless of cause, size, or
complexity.'' How are the CSB's protocols for responding to incidents
at chemical facilities consistent with the NIMS? How many members of
the CSB have been trained and certified in the NIMS?
Response. All of our career investigators, including investigation
supervisors and investigation managers, have had thorough training on
the National Incident Management System (NIMS). Most of our
investigators received their NIMS training in an eight-hour course
presented by Maryland Fire and Rescue Institute (MFRI) in 2005 and were
registered with FEMA. Those who did not take the MFRI course completed
an online independent study course (IS-00700) and were also registered
with FEMA. We plan to continue providing comprehensive NIMS training
for all our investigators, as we have done for the past several years.
As a matter of both policy and actual practice, the CSB does
nothing to interfere with NIMS or other emergency response activities
at accident sites, and that will be my continued policy as chairman if
confirmed. At any accident site, if emergency response activities are
ongoing or an Incident command system is in place, our procedure calls
for the CSB lead investigator to report directly to the incident
commander (IC) upon arrival. The lead investigator should establish the
authority of CSB to investigate while being sensitive to avoid possible
disruptions to any ongoing emergency response operations.
It would clearly be inappropriate, however, for an incident
commander to seek to direct the CSB's investigation or to prescribe the
terms under which the CSB can interview witnesses or access the site,
other than for reasons of protecting safety or completing emergency
response actions. In many cases, the CSB's investigators have
specialized chemical expertise that is highly useful to incident
commanders (many of whom have never had to respond to a major chemical
accident) and other agencies, and we invariably seek to be of
assistance where possible.
I should emphasize that the CSB is not an emergency response agency
but was created by Congress solely as independent investigative body.
In some cases, the CSB's investigations examine the effectiveness of
emergency response activities, coordination, and command structures.
The CSB's position on this issue is similar to that of the NTSB, which
also examines the effectiveness of emergency response as part of its
accident investigations.
Question 3. What steps does the CSB intend to take to ensure better
coordination of its activities with other federal, state, and local
agencies?
Response. During the recent public comment period on the National
Response Framework (NEW) this month, the Chemical Safety Board asked
the Department of Homeland Security (DHS) to incorporate specific
language into the NRF stating that ``nothing in this directive alters,
or impedes the ability to carry out, the authorities of Federal
departments and agencies to perform their responsibilities under law.''
This would conform the NRF to the language in paragraph 5 of Homeland
Security Presidential Directive 5 (HSPD-5). The Board also requested
DHS to emphasize that incident commanders should seek to coordinate
with federal safety investigations, such as those conducted by the CSB
and the NTSB.
If I am confirmed as chairman, we will continue to work with DHS
and FEMA to seek refinements to both the National Response Framework
and the National Incident Management System (NIMS) which would promote
improved coordination, particularly during the phase when emergency
response activities are being completed and safety investigations are
getting underway. I will also continue and expand the CSB's successful
outreach to local and state fire and response organizations, as
described below.
Question 4. Many members of the public safety community apparently
are not aware of the CSB and its role and mission. What steps will you
take as chairman to improve the CSB's outreach to the public safety
community?
Response. Communities and responders benefit from the CSB's
thorough, independent investigations of chemical accidents, but it
remains a significant challenge for the CSB to be known by all fire
departments throughout the country. The CSB is currently a $9 million,
40-person agency with only a handful of staff focused on outreach. By
contrast, the U.S. has more than 30,000 fire departments, served by
more than 1.1 million firefighters, both career and volunteer.
The CSB's board and staff have made numerous presentations to fire
safety organizations over the past five years, including the National
Fire Protection Association, the National Association of State Fire
Marshals, the National Association of SARA Title Three Program
Officials, and the International Association of Fire Chiefs. We have
also published articles describing the CSB's mission, investigations,
and safety products in a number of fire-related magazines and websites,
including the International Association of Fire Chiefs On Scene
newsletter, Industrial Fire World, Firehouse.com, Fireengineering.com,
and many others. Our safety videos arc also featured on the website of
the U.S. Fire Administration. We have received more than 400 individual
requests for our safety video DVD's from fire chiefs, officers, and
other emergency responders--many accompanied by strong words of praise
for the agency's investigations and efforts at reaching out to the tire
community.
If confirmed as chairman, I intend to continue and increase the
CSB' s vigorous outreach to the emergency response community by
speaking at fire safety conferences, contributing articles to fire
safety publications and websites, and making our CSB safety videos and
materials freely available to firefighters and others on CSB.gov,
YouTube, and fire safety websites.
Response by John S. Bresland to Additional Questions from Senator
Vitter
Question 1. Temporary trailers are used for turn around or
construction projects within plants. Assuming it is more cost effective
to operate within the process area, would it be reasonable to require
someone to rent structures that ARE blast resistant (instead of not) to
protect people in the blast zone?
Response. The BP Texas City explosion and fire occurred on March
20, 2007. Because all of the fatalities occurred in occupied temporary
trailers close to the scene of the explosion, the Chemical Safety Board
made an urgent recommendation on October 25, 2007 to the American
Petroleum Institute (API). The wording of the recommendation was:
In light of the above findings concerning the March 23rd incident
at BP's Texas City refinery, revise your Recommended Practice 752,
``Management of Hazards Associated with Location of Process Plant
Buildings'' or issue a new Recommended Practice to ensure the safe
placement of occupied trailers and similar temporary structures away
from hazardous areas of process plants.
As its response to the CSB recommendation, in June 2007 API
published its Recommended Practice 753 ``Management of Hazards
Associated with Location of Process Plant Portable Buildings''. API's
response is currently being evaluated by the CSB to determine if it is
acceptable.
Recommended Practice 753 is based on the following guiding
principles:
Locate personnel away from covered process areas
consistent with safe and effective operations
Minimize the use of occupied portable buildings in
close proximity to covered process areas
Manage the occupancy of portable buildings,
especially during periods of increased risk including unit
start-up or planned shut-down operations
Design, construct, install and maintain occupied
portable buildings to protect occupants against potential
hazards
Manage the use of portable buildings as an integral
part of the design, construction, maintenance and operation of
a facility
The CSB does not promulgate regulations and thus cannot ``require
someone to rent structures''. However I would encourage facilities to
follow the API Recommended Practice, regardless of whether they rent or
purchase the structures.
I believe that the CSB 's recommendation to API and the
implementation of the API Recommended Practice 753 by the oil refining
and chemical industry will have a very positive impact on the safety of
employees in those industries.
Question 2. Can you define ``Neutral Risk'' as it relates to
occupied structures in blast zones?
Response. The term ``Neutral Risk'' is not a term that I am
familiar within the context of chemical or oil refinery process safety.
I worked in the chemical industry for 35 years and at the CSB for five
years. During that time I worked closely with the American Petroleum
Institute, the American Chemistry Council and the Center for Chemical
Process Safety and I have not heard the term Neutral Risk used as a
chemical process safety term. The term is used in financial markets and
in the nuclear power industry.
Question 3. How does the ``Neutral Risk'' standard protect people
from the blast and ensure that the building protects occupants from not
only the building itself during a blast but also the blast environment?
Response. As I stated above I am not familiar with the ``Neutral
Risk'' standard in the context of chemical or oil refining facilities.
Question 4. Because of the neutral risk standard, I understand that
tents are allowed in blast areas as a means to protect workers from
blasts because the interpretation of the ``neutral risk'' standard
means occupants face minimal risk from the tents themselves. Does CSB
allow for Tents in blast zones? How do Tents ensure the people are
protected from the blast environment?
Response. The CSB does not promulgate standards and thus does not
``allow'' or forbid the use of tents in blast zones. API Recommended
Practice 753 excludes ``lightweight fabric enclosures such as tents''
from the definition of portable building. In its review of API 753 the
CSB is assessing this exclusion.
Question 5. Shouldn't any structure such as a bath room be blast
resistant if located in a blast zone?
Response. Section 3 of the API Recommended Practice 753 gives a
method for facilities which have the potential for an explosion hazard
to determine an appropriate location for portable buildings. If the
bathroom is a portable structure, the facility should consult API
Recommended Practice 753. If the bathroom is a permanent structure, its
design, location and installation should take into account the
potential for a fire. explosion or toxic gas release.
Response by John S. Bresland to Additional Questions from
Senator Lautenberg
Question 1. Why did you decide to vote against recommending a new
OSHA standard to prevent combustible dust explosions?
Response. In 2003 there were two catastrophic combustible dust
explosions (West Pharmaceutical, Kinston, NC; and CTA Acoustics,
Corbin, KY) which killed a total of 13 employees and destroyed both
facilities. The CSB investigated both incidents, determined the root
causes and made recommendations to the companies, their suppliers and
various safety organizations and regulatory agencies. I voted to
completely accept both reports. Following these two incidents and a
third in October 2003 in Huntington, Indiana the CSB decided to carry
out a comprehensive study of combustible dust hazards in the United
States. I supported that effort. The study resulted in a CSB staff
recommendation that OSHA develop a new standard for preventing
combustible dust explosions. After considerable thought and discussion
with other Board members I decided not to support that recommendation.
In my vote against recommending a new OSHA standard I concluded that
the most effective way to prevent future dust explosions was to use the
available literature to undertake a comprehensive education program to
the industries using combustible dusts. I believe that this would be a
much faster way to get the message out to the industry than waiting for
OSHA to go through the prolonged process of writing a regulation on
combustible dusts. I believe that there is ample information available
on the issue of prevention of combustible dust explosions. Three
examples come to mind:
``Dust Explosions in the Process Industries'' by Rolf
K. Eckhoff
NFPA Standard 654 for the Prevention of Fire and Dust
Explosions from the Manufacturing, Processing, and Handling of
Combustible Particulate Solids, 2006 Edition
``Guidelines for Safe Handling of Powders and Bulk
Solids'' Center for Chemical Process Safety of the American
Institute of Chemical Engineers, 2004 Edition
While I was working as a Staff Consultant to the Center for
Chemical Process Safety (CCPS) in 2001 and 2002 I managed the writing
of the CCPS book ``Guidelines for Safe Handling of Powders and Bulk
Solids''. The final product, published in 2004, is approximately 800
pages long and it is a very comprehensive survey of techniques
available to prevent dust explosions.
Recommendation 5 to OSHA in the November 2006 CSB Combustible Dust
Study called on OSHA to ``. . . identify manufacturing industries at
risk and develop and implement a National Special Emphasis Program on
combustible dust studies in general industry.'' I agreed with that
recommendation. On October 19, 2007 OSHA issued a new safety and health
instruction that details OSHA policies and procedures for inspecting
workplaces that handle combustible dusts and that may have the
potential for a dust explosion.
Question 2. Why did you vote against the Combustible Dust Study in
November 2006 that was supported by the Board on a 3-2 vote?
Response. I believe that the Board's staff did an excellent job in
researching and writing the November 2006 Study on combustible dust
explosions. My vote was not against the Study as a whole but against
recommendation 1 to OSHA. My vote was motivated because I believed that
action needed to be taken sooner than waiting for OSHA to write a
standard. Quoting from my remarks at the November 9, 2006 CSB Public
Meeting on Combustible Dust Hazard Study Findings and Proposed
Recommendations:
``I would just like to reemphasize the major point that I am trying
to make and that is realizing and recognizing that there is a hazard
right now and we have certainly seen that with the dust explosions that
have taken place. We, OSHA, the industry, trade organizations, need to
be doing something today. We don't need to be waiting for five years
for a regulation to be published. We need to get out there today and
start educating people on this to make sure that the sort of tragedies
that we've seen don't happen again.''
Question 3. Do you continue to support extending EPA and OSHA
process safety regulations to cover reactive chemicals and mixtures, as
the CSB recommended in 2002?
Response. Yes, I continue to support the 2002 CSB recommendation.
If confirmed, I will meet with the leadership of both OSHA and EPA and
emphasize the continued interest of the CSB in having them comply with
the CSB's recommendation.
Question 4. Do you believe it is preferable to have third-party
audits of oil and chemical plants instead of federal inspections by
OSHA and EPA personnel? If so, please describe the potential benefits
and detriments to this approach?
Response. I believe that third party audits of oil and chemical
plants could supplement inspections done by EPA and OSHA. Third party
audits would have certain advantages over federal inspections by EPA
and OSHA personnel.
Some of the pros of this approach are:
There is a larger pool of independent personnel with
specific expertise in chemical and refinery operations than
there currently is within OSHA and EPA
Audit quality requirements would have to be developed
and approved by EPA and/or OSHA
Audit protocol requirements would have to be
developed and approved by EPA and/or OSHA
The possible cons of this approach include:
The cost to industry would be greater as they would
have to bear the costs of the inspections
Conflict of interest provisions would be needed to
assure impartial audits
The question of the public availability of audit
results would have to be resolved.
Question 5. Do you believe that OSHA and EPA's existing process
safety programs should be consolidated into a new federal regulatory
and inspection program? If so, please describe how such a consolidation
would work and what benefits you would foresee from such an approach?
Response. There is considerable similarity between the EPA's Risk
Management Program for chemical facilities and OSHA's Process Safety
Management of Highly Hazardous Chemicals Standard. The OSHA standard
deals with hazards and the prevention of accidents inside the facility
and the EPA program deals with the prevention of accidents that would
impact the community around the facility. The programs could be
combined without a significant effect on the regulated community.
However, to combine them would require rewriting the Clean Air Act
Amendments of 1990. One of the issues facing both EPA and OSHA in the
regulation of oil and chemical plants is a shortage of personnel with
expertise in chemical plant and refinery operations. Combining the
programs without authorizing the hiring of additional experienced
personnel would not, in my opinion, improve the regulatory oversight of
the industry.
Question 6a. Could you please explain the ``safety case'' approach
to licensing oil and chemical plants that is used in Europe?
Response. As a result of major industrial chemical accidents in
Europe in the 1970s (the Flixborough, England explosion in 1974 and the
Seveso, Italy dioxin release in 1976) the Seveso Directive was issued
by the European Community in 1982. The regulations implementing the
Seveso Directive are the 1984 Control of Industrial Major Accident
Hazards Regulations (CIMAH) and the 1999 Control of Major Accident
Hazards (COMAH). To comply with the CIMAH and COMAH regulations
operators of certain facilities in the European Community have been
required to submit ``safety reports'' to the ``competent authority''
(in the United Kingdom the competent authority is both the Health and
Safety Executive and the Environmental Agency). Facilities affected by
the regulations are typically in the chemical, oil refining, explosives
and nuclear industries. Once a facility determines that it is covered
by the regulations (based on threshold quantities of dangerous
substances) it has the following responsibities:
Submit details of dangerous substances on site to the
competent authority
Describe site activities
Take all measures necessary to prevent major
accidents and limit their consequences (this is a general duty
standard)
Prepare and test an on-site emergency plan
Prepare a safety report which includes the following:
(1) a policy on how to prevent and mitigate major accidents (2)
a management system for implementing that policy (3) a method
for identifying any major accidents that might occur (4)
methods to prevent and mitigate major accidents (5) information
on safety precautions built into the plant (6) details of
measures to limit the consequences of any major accident that
might occur (7) information on the site emergency plan, which
is also used by the local emergency responders.
The safety report has to be submitted to the competent authority
and kept up to date as operating conditions at the facility changes. It
must be updated and resubmitted at least every five years.
Several important factors should be noted:
All costs associated with the development of the
safety report are borne by the operating company. These costs
include those of the competent authority in assessing and
commenting on the safety report.
With the exception of nuclear installations and off-
shore oil facilities, the safety case is not a ``permit'' to
operate.
Facilities are required in their safety reports to
demonstrate that they have reduced risks to ``as low as
reasonably possible''.
Question 6b. Should the United States adopt a ``safety case''
approach?
Response. The EPA Risk Management Program (RMP) regulations are
similar in some respects to the European safety report rules. However
the information required to be submitted in the safety report is much
more comprehensive and detailed than in the RMP submittals. For the
United States to adopt the European safety case approach changes would
require changes in the underlying Clean Air Act legislation. In the
United Kingdom there are 750 lower hazard facilities and 375 high
hazard facilities covered by the COMAH regulations. The Health and
Safety Executive has 150 inspectors applying 45 man-years each year to
evaluating safety reports. In the United States there arc approximately
15,000 RMP facilities. The option of adopting the European safety
report approach in the United States should be looked at in the context
of the availability of government personnel with the expertise to
evaluate the safety reports.
Question 7a. Do you support specific legislation to provide CSB
with investigation authority like the NTSB's?
Response. CSB needs additional statutory authority to avoid delays
in their investigations caused by local autorities blocking entry to
sites and prevent the destruction of evidence during clean-up
operations after the emergency response has ended.
A good starting point for discussions on additional authority could
be the NTSB statute at 49 USC Sec. Sec. 1101-1155 and NTSB regulations
at 40 CFR 830.10 and 40 CFR 831.5.
Question 7b. Do you support specific legislation to clarify the
CSB's evidence preservation authority?
Response. Because of ongoing issues with evidence preservation at
accident sites I believe that the CSB's evidence preservation authority
should be clarified, either by legislation or by regulation. On January
4, 2006 the CSB published a proposed rule in the Federal Register,
requiring that facilities having an incident being investigated by the
CSB should preserve evidence relevant to the investigation. The CSB
received many comments on this proposal and has not published a final
rule.
Question 7c. Do you support specific legislation to provide CSB
with authority like the NTSB's to decide on testing procedures for the
physical evidence recovered from accident sites?
Response. Yes.
Question 7d. Do you support specific legislation to clarify and
strengthen CSB's access to OSHA and EPA personnel and records that are
relevant to the CSB's investigations?
Response. CSB's accident investigations often evaluate the roles of
EPA and OSHA in regulating the facility or the industry. It has proved
difficult at times to get access to EPA and OSHA personnel and records.
If discussions with EPA and OSHA leadership cannot resolve these issues
in the future, then specific legislation would be warranted.
Question 7e. Do you support specific legislation to provide for a
3-2 party split in appointments to the Board, similar to the NTSB?
Response. I have not given this issue an extensive review. However,
in a small agency like the CSB, the most important criteria for Board
appointments should continue to be expertise and experience, regardless
of party affiliation. I would be interested in discussing this option
with the leadership at the NTSB to understand what their experience has
been with the 3-2 party split.
Responses by John S. Breland to Additional Questions from
Senator Lieberman
Question 1. As you know, there was a dispute last year between the
Chemical Safety and Hazard Investigation Board (CSB) and officials of
the Massachusetts fire service in the aftermath of an explosion at a
chemical plant in Danvers, MA. Fire officials maintain that CSB
personnel created tension and confusion at the scene by failing to
properly notify state and local officials of their arrival and failing
to coordinate with the already established incident command structure.
CSB disputes these assertions and complains that local officials
improperly denied its personnel access to the incident scene.
Regardless of who is right in this dispute, the very fact that
there was such a conflict in Danvers raises concerns that there may be
a larger problem in CSB's relationship with state and local officials
and first responders. CSB regularly needs to perform its work at scenes
at which various federal, state, and local officials may all have
responsibilities. We cannot afford to have future disputes that may
potentially interfere with both local incident management and CSB's
ability to conduct effective investigations.
If confirmed as Chairperson of CSB, what steps will you take to
ensure that there is a good working relationship between and among CSB
and state and local officials and first responders? Given the problems
in Danvers, do you think it might be a good idea to convene a meeting
with firefighters (and perhaps other first responders) from around the
nation to ensure that everyone understands each other's roles, and that
roles and procedures are discussed in advance of future incidents?
Response. The question appears to refer to certain claims made in
an unsigned, one-page statement distributed by several representatives
of the International Association of Fire Chiefs (IAFC) in September
2007, more than 10 months after the events in question. The CSB has
thoroughly refuted those claims in a 16-page letter to the Committee
last month, which I include for the record.
The central issue in Danvers was not one of notification or
coordination; it was the fact that the fire services did not recognize
the CSB's federal investigative jurisdiction under the Clean Air Act.
Shortly after the arrival of CSB investigators, the Danvers fire chief
publicly declared the CSB to be ``uninvited,'' ``unwelcome,'' ``not a
piece of the pie,'' and ``a distraction that has taken time away from
the real investigators.''\1\ By contrast, a number of other fire chiefs
have complimented the CSB's investigative work, its professionalism,
and its coordination with local authorities, as noted in an article\2\
published by a regional Massachusetts newspaper, the Salem News, during
the unfortunate situation in Danvers.
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\1\ See AP Domestic News, November 26, 2006 ``Probers Look for
Clues in Mass Blast,'' Boston Globe November 26, 2006. ``Dispute besets
blast probe U.S. investigators barred from site by Danvers chief;''
Salem News, November 27, 2006, ``Investigators probe blast cause, feds
fight to get access.''
\2\ See Salem News, November 29, 2006. ``Others Welcomed Chemical
Safety Board,'' by Paul Leighton.
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Overall, the CSB enjoys excellent relationships with state and
local fire and emergency preparedness and response officials, and in
most cases there has been effective coordination at accident sites. My
goal as chairman will be to continue those valuable relationships for
the next five years. The success of the CSB's interactions with fire
officials over the past five years is reflected in the endorsements I
have received from the nation's leading fire safety organizations,
including the National Association of State Fire Marshals (NASFM), the
National Fire Protection Association (NFPA), the International Code
Council (ICC), the National Association of SARA Title Three Program
Officials (NASTTPO), and other response and preparedness officials.
State and local fire authorities benefit from the CSB's work, and
they take our safety recommendations seriously. For example, in 2005 we
recommended that the State of Kentucky identify and inspect industrial
facilities at risk for catastrophic dust explosions, following an
accident in 2003 that killed seven workers. The state promptly adopted
the recommendation, gaining additional funding from the legislature for
the state fire marshal to make the inspection of facilities with
combustible dust hazards a high priority and to develop remediation
plans. In 2003, the CSB called on New York City to reform its
antiquated 85-year-old fire code, following a chemical explosion in
Manhattan that injured dozens of people including several firefighters.
Following the CSB's recommendation, the city is now nearing completion
of a three-year effort to adopt a modern fire safety code, a step that
will help protect the lives of millions of New York City residents,
workers, and visitors.
On April 27, 2005, then-CSB Chairman Carolyn Merritt testified
before the Senate Homeland Security and Government Affairs Committee,
which you now chair, on deficiencies in local emergency preparedness
for chemical releases. Such deficiencies put the lives of police and
firefighters at risk due to inadequate funding, planning, or protective
equipment--as in the case of a 2004 chemical accident in northwest
Georgia where 15 responders were injured by exposure to toxic chemical
vapor. Chairman Merritt and I were pleased when S. 2145, the bipartisan
Collins-Lieberman chemical security bill that followed the hearing,
included extensive new provisions for improving planning and
preparedness for chemical emergencies.\3\ As you noted to Chairman
Merritt at the April 2005 hearing:
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\3\ Senate Report 109-332, which accompanied the legislation,
credited the CSB's independent safety investigations with establishing
the importance of improving chemical emergency preparedness throughout
the country: ``During the Committee's four chemical security hearings,
witnesses highlighted the importance of emergency preparedness in
dealing with a chemical release as well as weaknesses in the current
state of preparedness of many facilities and communities. In
particular, Carolyn Merritt, Chairman of the U.S. Chemical Safety and
Hazard Investigation Board (CSB). and Gerald Poje, a former member of
the CSB, were critical of chemical plant preparedness across the
country. Both Merritt and Poje emphasized in their testimony that
effective emergency response planning and capabilities can mitigate the
consequences of a terrorist attack on a chemical facility.'' (See
Senate Report, p. 20) The legislation was reported from committee but
not acted upon by the full Senate.
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``You may know that Senator Collins and I were successful in
amending the budget resolution in the Senate to restore a
considerable amount of funding, I guess about $550 million, for
the coming year for first responders, and obviously we have to
make sure the money is well spent. But you point to a very
urgent need which will not be met unless we give the first
responders money. Then once we do that, we have to help them
use it for that purpose. I thank you.''
Communities and responders benefit from the CSB's thorough,
independent investigations of chemical accidents, but it remains a
significant challenge for the CSB to be known by all fire departments
throughout the country. The CSB is currently a $9 million, 40-person
agency with only a handful of staff focused on outreach. By contrast,
the U.S. has more than 30,000 fire departments, served by more than 1.1
million firefighters, both career and volunteer.
The CSB's board and staff have made numerous presentations to fire
safety organizations over the past five years, including the NFPA,
NASFM, NASTTPO, and the RFC. We have also published articles describing
the CSB's mission, investigations, and safety products in a number of
fire-related magazines and websites, including the International
Association of Fire Chiefs On Scene newsletter, Industrial Fire World,
Firehouse.com, Fireengineering.com, and many others. Our safety videos
are also featured on the website of the U.S. Fire Administration. We
have received more than 400 individual requests for our safety video
DVD's from fire chiefs, officers, and other emergency responders--many
accompanied by strong words of praise for the agency's investigations
and efforts at reaching out to the fire community. If confirmed as
chairman, I intend to continue and increase the CSB's vigorous outreach
to the emergency response community.
Question 2. In another context, that of homeland security, the
issue of how myriad federal, state and local officials all work
together in an incident, is a prominent concern. We saw the need for
such coordination in the response on 9/11, and we saw the challenges
that can arise in the response to Hurricane Katrina--including the
tragic consequences that can result when all the players are not
prepared to work together.
One of the key ways through which federal, state and local
responders work together is through the National Incident Management
System--or ``NIMS''--which utilizes a unified command structure. The
Homeland Security Act gives the Department of Homeland Security,
through the FEMA Administrator, responsibility for maintaining NIMS,
and relevant federal agencies are all required to comply with NIMS in
responding to incidents. FEMA has developed courses and approves
courses to train individuals in the federal government and in the
states on NIMS.
Does CSB provide for NIMS training for its employees? If so, who
receives training? Is the training through the Department of Homeland
Security or does CSB do it's own training? Do you have any plans for
future changes in, or expansion of, NIMS training at CSB?
Response. All of our career investigators, including investigation
supervisors and investigation managers, have had thorough training on
the National Incident Management System (NIMS). Most of our
investigators received their NIMS training in an eight-hour course
presented by Maryland Fire and Rescue Institute (MFRI) in 2005 and were
registered with FEMA. Those who did not take the MFRI course completed
an online independent study course (IS-00700) and were also registered
with FEMA. We plan to continue providing comprehensive NIMS training
for all our investigators, as we have done for the past several years.
However, I must point out that the situation in Danvers was not
directly related to NIMS, which is designed to promote the fast
integration of federal, state, and local efforts to respond to major
disasters. NIMS is a system for emergency response and recovery and is
not a system for investigating the causes of disasters. Where emergency
response and investigations may overlap, emergency response must come
first. In the case of Danvers, however, the fires had been
extinguished, the neighborhood had been searched for victims and
evacuated, and the emergency had ceased on November 22, two days prior
to the arrival of CSB investigators. In that sense the ``incident'' was
already over.
Homeland Security Presidential Directive 5 (HSPD-5) and NIMS are
not intended to, and do not, interfere with the CSB's authority to
carry out its investigative mission. Paragraph 5 of HSPD-5 states
unambiguously that ``nothing in this directive alters, or impedes the
ability to carry out, the authorities of Federal departments and
agencies to perform their responsibilities under law.'' In fact under
NIMS, the responsibility of the local incident commander in Danvers was
to rapidly integrate the CSB into the existing command structure so
that the Board's lawful functions could proceed. Had they done so all
parties could have more effectively coordinated their respective
responsibilities, but regrettably this did not happen.
During the recent public comment period on the National Response
Framework (NRF) this month, the Chemical Safety Board asked DHS to
incorporate the specific HSPD-5 language above into the NRF and to
emphasize that incident commanders should seek to coordinate with
federal safety investigations, such as those conducted by the CSB and
the NTSB. These federal safety investigations are vital for protecting
communities around the country from possible future accidents.
Question 3. I understand that CSB hired a public relations firm in
connection with the Danvers incident. On its web site, that firm,
Crawford Strategies, says it was charged with ``upholding CSB's public
image'' and claims credit for, among other things, having ``generated
substantial press and editorial coverage aimed at setting the record
straight'' on the Danvers situation. Two examples cited by the firm are
an editorial and a column in the Boston Globe that portray the dispute
in a light favorable to CSB and very unfavorable to local fire service
officials.
Did CSB, through Crawford Strategies or otherwise, undertake a
public relations strategy designed to generate criticism of state and
local officials? If so, isn't it likely that such actions could further
damage the relationship between CSB and state and local officials, and
ultimately lead to further distrust of CSB? Do you think CSB's use of a
public relations firm for this purpose is appropriate? As a Board
member, were you aware of the ``public relations'' activities
undertaken in Danvers?
Response. The premise of these questions is not accurate. Like many
government agencies that interact with the public, the CSB employs
public affairs contractors who specialize in media relations. Because
the CSB does not operate field offices, we frequently employ local
public affairs firms to identify and contact the news media on our
behalf, particularly during the early stages of investigations. It is
simply not possible for the CSB's limited staff to maintain media
contacts simultaneously in several hundred regional markets around the
country.
During the deployment to the Danvers accident site, the CSB hired
Crawford Strategies, a local Boston area firm, to compile media lists,
distribute advisories, and make initial contacts with journalists, who
can then follow up with CSB board members and staff directly on more
specific and substantive issues. This particular contractor performed
only a modest amount of work for the CSB, with a total value of less
than $3,100.
As a board member. I was aware of the public affairs work done in
the connection with the Danvers case, and that work was authorized and
approved by then-Chairman Carolyn Merritt. However, I emphasize that
there was no ``public relations strategy'' of the kind suggested in the
question. What occurred in reality was that on Saturday, November 25,
2006. alter blocking the access of CSB investigators to the accident
site and refusing to recognize the agency's jurisdiction under the
Clean Air Act, the Danvers fire chief proceeded to hold a public news
conference where he declared the CSB to be ``uninvited,''
``unwelcome,'' ``not a piece of the pie,'' and ``a distraction that has
taken time away from the real investigators.''\4\
---------------------------------------------------------------------------
\4\ See AP Domestic News, November 26, 2006 ``Probers Look for
Clues in Mass. Blast;'' Boston Globe, November 26, 2006. ``Dispute
besets blast probe U.S. investigators barred from site by Danvers
chief;'' Salem News, November 27, 2006, ``Investigators probe blast
cause, feds fight to get access.''
---------------------------------------------------------------------------
The CSB had said nothing publicly about the dispute to that point
and had certainly not criticized the fire chief or other local
officials. Rather, we had worked behind the scenes in an effort, we
hoped, to quickly resolve the issues, but this effort was fruitless. On
Sunday, after a news cycle where the Danvers chief's striking comments
were widely reported, Mr. Crawford made initial contacts with staff
from the Boston Globe for follow-up later in the day by the CSB's
director of public affairs. The public affairs director, in
consultation with the CSB chairman, was the official spokesperson for
the agency and discussed the substantive issues with Globe reporters
and writers. The purpose of the contacts was, first and foremost, to
explain our mission to the community in Massachusetts and to discuss
the value of independent safety investigations, following the fire
chief's pointed criticism.
The CSB believed that it was urgent to access the accident site--
particularly since the state and local fire services were in the
process of clearing large portions of the site using heavy equipment,
causing the irreparable loss of potential evidence.
It is curious to suggest that the CSB or any other party has an
ability to control the editorial content of the Boston Globe, one of
the nation's oldest and most respected newspapers. The CSB simply
explained to the Globe our statutory authority and mission, our proven
expertise in handling and analyzing complex accident sites, and our
history of promoting the safety of communities nationwide against
chemical accidents. The Globe's reporters, editors, and columnists then
formed their own opinions about the confrontational public position
taken by the state and local fire services.
Senator Boxer. Thank you so much, Mr. Bresland.
Mr. Shearer of Delaware, to be a member of the Chemical
Safety and Hazard Investigation Board for 5 years.
STATEMENT OF C. RUSSELL H. SHEARER, NOMINEE FOR BOARD MEMBER,
U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD
Mr. Shearer. Thank you, Madam Chairman and members of the
Committee. I appreciate the opportunity to appear before you
today.
With me today is my wife, Michelle, and my 1\1/2\-year-old
daughter, Eliza, upon whom I may call to answer questions,
because nobody can be mad at a little girl with a smile such as
hers.
I am grateful and honored by the President's nomination to
serve as a member of the Chemical Safety and Hazards
Investigation Board. I appreciate this opportunity to appear
before the Committee today.
I likewise appreciate having had the counsel of the
Committee members, their staff and of other Congressional
staff. Understanding their views has been instructive and I
will continue these communications if confirmed.
I look forward, if confirmed, to working closely and
collegially with the Chairman and board members. They have
wisely hewn fast to Congress's mandate to investigate events,
to devise lessons learned and recommendations from them and to
communicate that information to workers, the public, industry
and government agencies. That mandate is an important one,
because in it Congress recognized that investigating and
communicating lessons learned is the first step to building
safety performance.
Industry, in a perfect world, would uniformly recognize the
wisdom of that fact and universally act on it, performing this
function on its own and sharing the operating experiences. But
it has not and, so Congress created the Board to fill that
void.
My experience is in high hazard chemical and nuclear
operations as a program manager and as a chief environment,
safety and health officer. I routinely use the Board's
products. The Board's expertise in conducting investigations
and devising lessons learned and recommendations is, in my
assessment, outstanding. The challenge is to ensure that the
lessons are effectively communicated in a timely fashion to the
intended audience.
I therefore intend, if confirmed, to work with the Chairman
and Board members to build on that excellent progress already
made, and to promote the following three objectives. First, the
Board should continue to build the base of safety knowledge by
expanding the number of investigations it conducts. Each
investigation is an opportunity to learn new information, to
gain additional insights into mechanical system, management
system and human behavior. This safety knowledge, I believe, is
critical in this post-9/11 operating environment because safer
plants provide the defense-in-depth required to prevent or
mitigate the acts of potential malevolent actors.
Second, the Board should adopt additional cost effective
methods for outreach to and awareness among the public,
workers, industry and government agencies. I believe that
communication is vitally important, because it builds
accountability and transparency. It ensures that the lessons
learned are translated into actions that improve safety
performance.
Third, the Board should continue to analyze operating
experience data that identify adverse and little-understood
trends, and that point out generic safety issues with broad
applicability across the chemical industry.
I will bring to the Board, if confirmed, the commitment I
have demonstrated in prior civil service to safe and reliable
operations, to identifying and working with stakeholders and to
sharing information openly and conducting affairs
transparently. I will also bring to the Board, if confirmed,
hands-on experience, including the following: understanding and
respecting worker and public safety as a foremost
consideration. Conducting performance-based investigations.
These investigations have included typical chemical events,
such as process safety management, chemical fires, failure to
follow procedure and equipment failure, as well as common
industrial accidents, such as arc flashes and the failure to
use fall protection.
I also have experience in developing and implementing an
operating experiences program that is a formal process of
sharing information. Promoting the development and use of
specific tools beyond simple lagging metrics to enhance
operational awareness of real-time facility-level safety and
promoting the development of expectations that integrate safety
throughout a facility's life cycle.
Madam Chairman, I appreciate the opportunity to testify
before this Committee and its consideration of my nomination. I
will seek to answer any questions that the Committee members
may have, and I have submitted my complete testimony for the
record. Thank you.
[The prepared statement of Mr. Shearer follows:]
Statement of C. Russell H. Shearer, to be a Board Member, U.S. Chemical
Safety and Hazard Investigation Board
Madam Chairman, Ranking Member Inhofe, and Members of the
Committee, thank you for the opportunity to appear before you. With me
today are my wife, Michelle, and my one and a half year old daughter
Eliza, upon whom I may call to answer questions because nobody can be
mad at a girl with her smile.
I am grateful for and honored by the President's nomination to
serve as a member of the Chemical Safety and Hazards Investigation
Board (``Board''), and I appreciate this opportunity to appear before
your committee today. I likewise appreciate having had the counsel of
the committee members, their staff, and of other congressional staff.
Understanding their views has been instructive, and I will continue
these communications if confirmed.
I look forward, if confirmed, to working closely and collegially
with the Chairman and Board Members. They have wisely hewn fast to
Congress's mandate to investigate events, to devise lessons learned and
recommendations from them, and to communicate that information to
workers, the public, industry, and government agencies. That mandate is
an important one because in it Congress recognized that investigating
and communicating lessons learned is the first step to building safety
performance. Industry in a perfect world would uniformly recognize the
wisdom of that fact and universally act on it, performing this function
on its own and sharing the information and operating experiences both
within and without the chemical industry. But it has not and so
Congress created the Board to fill that void.
The Board, then, has a critical national safety function in
executing a performance-based investigation program that seeks out root
and contributing causes, the solutions to which may require technical,
managerial, policy, or regulatory solutions, or a mix of each. Congress
and the Board have thus taken an important step beyond traditional,
limited-scope assessments of simple compliance with existing
regulations, and into the more important function of building from
events a good base of safety knowledge, lessons learned, and operating
experience. I therefore view the Board's mission to be similar to--
albeit an imperfect analogy--a high-performing corporate safety office
whose responsibility is to use events as learning tools that change
behavior in order to prevent the recurrence of that or similar events.
My experience is in high-hazard chemical and nuclear operations--as
a program manager and as a chief corporate environment, safety, and
health officer--and I routinely use the Board's products. The Board's
expertise in conducting investigations and devising lessons learned and
recommendations is, in my assessment, outstanding. The insights gained
from these investigations serve a critical role in fostering excellence
in chemical-safety performance because they form the technical basis to
help the industry and the appropriate regulatory agencies identify and
formulate corrective actions. The challenge is to ensure that the
lessons are effectively communicated in a timely fashion to the
intended audience. I therefore intend, if confirmed, to work with the
Chairman and the Board Members to build on the excellent progress
already made and to promote the following three objectives:
First, the Board should continue to build the base of
safety\1\ knowledge by expanding the number of investigations it
conducts in a manner, of course, that maintains the excellence for
which these investigations have become known. Each investigation is an
opportunity to learn new information, to gain additional insights into
mechanical-system, management-system, and human behavior. Indeed,
enhanced safety performance begins with building safety knowledge,
including developing lessons learned, operating experiences,\2\ and
best practices.\3\ This safety knowledge, I believe, is critical in
this post 9-11 operating environment because safer, more robust, and
better and more intelligently designed and engineered plants provide
the defense-in-depth required to prevent or mitigate the effects of
potential malevolent acts.
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\1\ I view the generic term ``safety'' to encompass public safety,
worker safety and health, plant safety, and protection of the
environment, and I am a firm believer that a high performing
environment, safety, and health (ES&H) program will include each of
these components. I believe, moreover, that performance in any one
aspect of an ES&H program--whether it is environment, safety, or
health--is a good indicator of performance in each of the others.
\2\ Lessons learned is the data collected from an event or events,
which is stored in a database or other less formal method; operating
experiences is that same data when applied to operations in order to
improve safety or reliability or some other attribute of plant
function.
\3\ A ``best practice'' is a description of process proven to
generate favorable results written in a way that others may apply it
with equal success.
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Building this base of safety knowledge is also an important
national asset because companies with good safety records are
profitable companies. These companies have learned the truism that
integrating safety into production yields safe and reliable operations
that, in turn, produce excellent products. This is true because the
focus is on quality--quality in safety, quality in worker health,
quality in environmental performance, and quality in production--rather
than production alone. The integration of these attributes is the
pillar of an overall Quality Assurance program, which studies have time
and again shown to be the foundation of a competitive enterprise. These
companies have therefore come to the enlightened self-interest that
safety is not only morally right; it is a good business practice.
Second, the Board should adopt additional cost-effective
methods for outreach to and awareness among the public, workers,
industry, and government agencies. I believe that communication of
information learned from events to all of these groups is vitally
important. It builds accountability and transparency and ensures that
lessons learned are translated into actions that improve safety
performance.
The Board, for example, should establish forums to learn, share,
and consider state-of-the-art and best practices from diverse
stakeholders, including the public, labor unions, workers, industry
associations, corporate representatives, national consensus-standard
setting groups, environmental groups, the public, and others. These
meetings should not be mere press events but gatherings where
technically- and not-so-technically-minded people can share information
and insights with the explicit objective of improving safety
performance. An important lesson learned over the last two decades is
that institutions must be technically inquisitive for a safety culture
to flourish, and that they must be open to new ideas and practices from
outside their experiences in exercising that inquisitiveness.
The Board might also build on the Institute for Nuclear Power
Operators' ``Prevent Events'' model in preparing talking points that
synopsize its reports. These talking points would then be available for
industry to use at plan-of-the-day or daily ``tool box'' meetings so
that it could explain to its workers exactly how an event at another
facility applies to them personally. It is a tool, in short, that makes
abstract events personal to the workers and helps them understand how
to behave more safely.
The Board should also seek out successful companies that have
demonstrated an understanding of, and put into practice, the concept of
integrating safety with production. The experience and practice of
these companies can then be used as case studies to communicate the
concept and to form the basis of best practices.
Third, the Board should continue to analyze operating-
experience data that identify adverse--and little understood--trends
and that point out generic safety issues with broad applicability
across the chemical industry. In 2002, for example, the Board analyzed
150 accidents involving uncontrolled-chemical reactions with the
objective of improving reactives-hazard management. This report
resulted in several recommendations to the Environmental Protection
Agency (EPA) and the Occupational Safety and Health Administration
(OSHA).
I will bring to the Board, if confirmed, the commitment I have
demonstrated in prior civil-service positions to safe and reliable
operations, to identifying and working with stakeholders, and to
sharing information openly and conducting affairs transparently. I will
also bring to the Board, if confirmed, hands-on experience that will be
useful in understanding the precursors that cause accidents,
recognition of business- and safety-management systems that influence
an organization's safety culture, and techniques that may resolve those
issues, including the following:
Understanding and respecting worker and public safety as a
foremost consideration;
Conducting performance-based accident investigations that
focus on underlying root causes and employ innovative methodologies,
such as Human Performance Improvement, which seeks to ferret out latent
organizational defects that lead to most human error;
Developing and implementing an operating-experiences
(lessons-learned) program that is not a mere data-collection exercise
but a process that shares those experiences among the corporate
specialists and executives who make decisions about capital investments
in vital plant systems, infrastructure, and technical-staff development
that ensure continued safety and reliability;
Building a well-developed operating experiences program
that looks beyond the parochial experiences of a particular industry to
analyze analogous events in others, such as the Columbia Space Shuttle
accident and the Davis-Besse nuclear power plant event (involving
reactor-vessel head corrosion), in order to derive comprehensive and
balanced operating experiences, recommendations, and operational
requirements;
Promoting operational rigor through procedures in a
program previously guided by ad-hoc, expert advice, sometimes known as
``tribal knowledge;''
Promoting the development and use of specific tools,
beyond simple lagging metrics, to enhance, throughout an organizational
structure, operational awareness of real-time, facility-level safety
and production performance, which, in turn, promotes information
sharing about and accountability for that performance; and
Promoting the development of expectations (standards) that
integrate safety throughout a facility's life cycle, including site
selection, design (especially, early design stages), construction,
operation, and dismantling and decommissioning.
Madam Chairman, I appreciate the opportunity to testify before this
Committee, and its consideration of my nomination. I will seek to
answer any questions that the Committee Members may have. Thank you.
______
Response by Russell H. Shearer Additional Questions from Senator Boxer
Question 1. Involvement in Activities that Occurred in Anniston,
Alabama. Please provide me with all records held by the Department of
Defense, yourself, or from other people that you can readily obtain,
including all emails, memos, letters, electronic files and other
records relating to your involvement in an effort by employees of the
Department of Defense to plan exercises designed to prepare for a
possible accident or incident at the Anniston Army Depot in Alabama,
when it was known that local officials lacked key equipment to
participate in such exercises.
Response. I have attached to this submission all records that I
could obtain responsive to this request.
Attachment 1, All e-mails of which I retained a printed copy.
Attachment 2, Complete set of the e-mails, including those on which
I was neither addressed nor copied. These e-mails were originally and
are now attached to a letter from Senator Shelby sent to my principal,
the Assistant Secretary of the Army (Installations & Environment).
These e-mails have had names on the ``To'' and ``CC'' list redacted,
which is the manner in which I received them from Senator Shelby's
office. This set is also the sole complete set of e-mails now
available.
Attachment 3, Letter from Congressman Bob Riley.
Attachment 4, E-mails and talking points discussing intent of
leaked e-mails.
Attachment 5, Calhoun County Chamber of Commerce Resolution adopted
after e-mail leak (August 19, 2003) commending my principal for work in
bringing Anniston plant on-line.
My detailed response regarding the news reports of my involvement
in the Anniston, Alabama, event appears in my response to Senator
Lautenberg's QFRs 1 and 2 below.
Question 2. Involvement in Department of Energy's Beryllium-
Associated Worker Registry--Please describe your involvement, including
any past involvement, in the Department of Energy's Beryllium-
Associated Worker Registry.
Please include any formal evaluations of the program conducted by
the Department of Energy or independent offices, including Inspector
Generals, of this Registry while you were associated with it.
Please also provide any evaluation of your work performance while
at the Department of Energy, including any evaluation of your
performance related to the Registry.
Response. The President appointed me to serve as the Principal
Deputy Assistant Secretary of Energy for Environment, Safety & Health
in August 2004. I served in that role until March 2006, when I became
the Acting Assistant Secretary of Energy for Environment, Safety &
Health (``EH'').
From August 2004 until March 2006 my portfolio did not include the
Beryllium-Associated Worker Registry because that function resided in
the Office of Worker Health, a sub-office within EH. The Assistant
Secretary managed the affairs of that office, except for adoption of
the Worker Safety Rule (10 C.F.R. Part 851), an action on which we both
worked.
In March 2006 I became the Acting Assistant Secretary for EH and,
at that time, was made aware of the ongoing audit by the Department of
Energy's (DOE'') Inspector General's office. Shortly thereafter my
staff briefed me on the Inspector General's audit findings and on April
5, 2006, less than a month after becoming the Acting Assistant
Secretary, I signed and transmitted EH's response to the Inspector
General's findings.
I have attached as Attachment 6 the audit report of the registry,
U.S. Department of Energy-Office of Inspector General, Audit Report:
Implementation of the Department of Energy's Beryllium-Associated
Worker Registry (DOE/IG-0726) (April 2006). The EH response is included
in the Audit Report at page 10.
I have attached as Attachment 7 my job performance reviews
assessing my performance during the period August 2004 to October 1,
2006, the most recent rating that I have received. Please continue to
accord these documents the confidentiality of the Privacy Act and
manage them as Official Use Only.
[The referenced documents may be found in committee's file.]
Responses from Russell H. Shearer to Additional Questions from
Senator Lautenberg
Question 1. In 2002, you were reportedly part of an effort by the
Pentagon to challenge local officials in Alabama to participate in
emergency response exercises, knowing that they would refuse, so that
the Pentagon could send out press releases shifting blame over lack of
local preparedness for a potential release from a chemical weapons
incinerator.
Response. News reports concerning the incident you describe were
incorrect in suggesting that the Army's effort was geared toward
embarrassing local officials and shifting blame. To the contrary, as I
explain in detail below, our efforts were aimed at encouraging the
Anniston communities to engage in more emergency-preparedness exercises
and to help them obtain the funding for the resources that these
communities needed.
Five years ago, several newspapers in Alabama reported on a string
of e-mails, in which two of mine appeared, that evaluated an idea for
inviting the communities around the Anniston Chemical Agent Disposal
Facility to engage in emergency-preparedness exercises. These e-mails
were written to execute the instructions of my principal,\1\ who had
three broad objectives: (1) Prepare the communities for emergency-
preparedness, which my principal and I held as essential to beginning
operations; (2) Begin operations because the chemical weapons in
storage in the communities presented a safety risk, especially in light
of September 11, 2001; and (3) Break a long-standing deadlock in which
some communities refused to engage in emergency--preparedness exercises
until all emergency-preparedness funding had been provided, even though
the Army had already provided more than $100 million in funding. The e-
mails also articulated an additional legal and business rationale,
which was to document the Army's efforts at building readiness in the
likely event that Congress, the Office of Management and Budget, or a
lawsuit sought evidence of it.
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\1\ Please see Attachment 12, the end of paragraph 3.
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The true object then, contrary to the news reports, was to build
emergency-preparedness and community safety in order to destroy
chemical agent, which would also enhance community safety.
The newspapers also reported that these e-mails reflected a so-
called ``plan.'' The fact is, however, that they merely related our
preliminary thinking on how best to build emergency preparedness and
the staff's internal debate on it. Neither the e-mails nor the news
reports reflect any final decisions or hard-and-fast plans. We were, in
short, trying to figure out what to do.
But the preceding discussion is no slight-of-hand to avoid
responsibility for my involvement in the e-mail discussion of how to
engage the communities. It simply sets out the mitigating circumstances
of that involvement. Our execution was flawed and I regret that.
Intergovernmental communication is an art not a science, and our
communications plan should have focused on meeting with the communities
and engaging them, rather than on worrying about what we would do in
the event they declined to engage with us. A corollary to this
principle is that we should have been more careful about tone. Rather
than inviting the communities, which may be perceived as an ultimatum
even if it is not intended that way, we should have, again, engaged at
the local level. We should have, in short, worked more closely with
local communities and their Congressional delegations, even in devising
this preliminary path forward.
I had come to this conclusion myself as a consequence of the
intense internal debate. Indeed, throughout the process of exchanging
views on this matter I was learning, and coming to the conclusion that
my principal should not ``invite,'' ``drive,'' or ``challenge'' the
local community to emergency preparedness. I had not formulated an
alternative to break the deadlock that the idea then under
consideration was to address, yet my focus was turning in that
direction. But before I could advise my principal that the idea was
unwise, someone leaked the e-mail chain and the learning became moot.
The incident and the lessons it taught were a hard knock at the
time, but they have positively influenced me and my work has concretely
benefited from them. I believe that I possess a full suite of tools to
address even the most vexing circumstances. I therefore believe my
career and my record substantiate that I have been dedicated to
protecting worker and public safety and health and the environment.
This is the true nature of my professional work--not the abstractions
of a few news reports based on two e-mails trying to focus staff work
on developing proposals to solve a problem.
background
In approximately December 2001 my principal, the Assistant
Secretary of the Army (Installations & Environment), was assigned, by
the Secretary of the Army, to take control of the chemical
demilitarization program, which had the mission of destroying the
Nation's stockpile of chemical weapons. By this time, it had come under
increasing scrutiny from Congress and the Office and Management and
Budget for repeated cost overruns, from the communities for emergency
preparedness, and from the international community for compliance with
a multilateral treaty mandating the destruction of all chemical
weapons. The technologies for destroying the agent that was under the
jurisdiction of this program\2\ had been selected and the plants, such
as that in Anniston, were built, or very nearly built, and undergoing
the final steps necessary to bring them on-line. September 11, 2001,
moreover, had created a palpable, almost physical, imperative to
destroy the agent and rid the communities of the potential threat and
terrorist target it presented.
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\2\ The agent located at two other sites (Pueblo, Colorado, and
Blue Grass, Kentucky) had been segregated from the program and made
part of another program utilizing alternative technology; i.e.,
technology and other than incineration or neutralization.
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The Assistant Secretary, who maintained day-to-day management of
the program due to the safety management and operational challenges it
presented,\3\ adopted a phased approach to the plants. That is, he
evaluated the issues at each facility and addressed those at the
operating plants first (Johnson Atoll and Tooele, Utah), the plants
closest to beginning operations next (Aberdeen, Maryland; Umatilla,
Oregon; and Newport, Indiana); and the plants scheduled to begin
operations thereafter third (Pine Bluff, Arkansas; Anniston, Alabama).
All the while, we were also involved in an operation known as ``Roving
Osprey'' to place the chemical agent and weapons in more hardened
storage facilities and to work with the communities to accelerate the
disposal schedules.
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\3\ I served as his Special Assistant from November 2001 to August
2004, and as the Acting Deputy Assistant Secretary of Chemical
Demilitarization from September 2002 to February 2003. While I seek to
deflect no attention from my own involvement in this incident, the fact
is that I received my instruction from the Assistant Secretary. Please
see Attachment 12, the end of paragraph 3.
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circumstances at anniston
June and July 2002 found the Assistant Secretary progressively more
interested in events at Anniston due to its impending startup date and
the need for it to operate in order to eliminate the safety risk
presented by the weapons in storage there. Briefing on briefing painted
a consistently challenging situation: Some of the local governments
worried that the Army's funding had been insufficient for some
emergency-preparedness equipment, and so they were disinclined to
participate in emergency-preparedness activities until the funding for
that equipment was provided.\4\ For its part, the Army compounded the
situation (prior to my principal inheriting the program) by failing to
observe all of its commitments.
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\4\ Not all of the local communities shared this concern and were
therefore disengaged. Several key communities were engaged in
exercising their emergency-response systems.
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The entire issue was further compounded by a technical debate,
which tied into the first concern set out above, among the Army staff
and some of the local communities about which emergency-preparedness
equipment was necessary, how it could be used, and whether it could be
maintained.\5\ It, in turn, was exacerbated by the practice of the
separate agencies responsible for emergency-preparedness exercises to
engage in once yearly exercises that tested the entire emergency-
preparedness program with no ``run-up'' exercises on the parts.
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\5\ The debate, in many regards, illustrated the phenomenon
described by Mr. Timothy R. Gablehouse, President of the National
Association of SARA Title III Program Officials, at the July 10, 2007,
Subcommittee on Transportation for emergency-preparedness exercises to
engage in once yearly exercises that tested the entire emergency-
preparedness program with no ``run-up'' exercises on the parts.
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goal was to ensure the community's safety and engage it better in
emergency-preparedness planning
All of this swirling argument prevented the two most important
things: (1) preparing the community for operations, and (2) operating
the plant to destroy the agent, which, again, had a visceral importance
in the very recent wake of September 11th. The Assistant Secretary and
I viewed the community's emergency preparedness as an absolute
requirement--a condition precedent--for the safe startup of the agent-
destruction plant. But the startup of that plant was also an absolute
requirement, in our minds, for the safety of that community because
without it the community would be left living with the chemical
weapons, which was a potential terrorist target and safety hazard in
light of September 11, 2001.
Neither he nor I were thus satisfied with the Army's emergency-
preparedness activities in the community or with some of the
community's engagement in that planning. More palpable as all of this
bureaucratic bickering was going on was the worry of the people in the
community, which was fueled, in part, by the frequent negative press
that did not always seek out the factual details but instead appeared
to rely on overly simplistic, sometimes misleading ``talking points.''
We perceived that our job was to engage the communities, encourage
them to participate in fruitful and regular training exercises, provide
those training exercises, obtain the resources for the remaining
necessary equipment, and, through media reports on those fruitful
exercises, build public confidence in emergency preparedness. The
Assistant Secretary and I therefore fundamentally wanted to engage the
communities in emergency preparedness drills and to ensure their
safety, which, again, we believed, was our foremost responsibility in
preparing for the destruction of chemical agent.
He then directed me to evaluate with my staff the idea of sending
an invitation to the communities and asking them to participate in a
series of emergency-preparedness exercises. These exercises and the
equipment for emergency preparedness would be funded by the Army, which
would also announce those communities that elected to participate and
those that did not. I was to return to him ``shortly'' with a draft of
a letter or memorandum and with a discussion of staff views. He would
then make the determination whether to execute.\6\
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\6\ Please see Attachment 12, the end of paragraph 3.
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The objective, then, was to encourage more emergency-preparedness
exercises and training, obtain the funding for the resources that the
community's needed, and encourage the participation of all the local
communities. The objective was not to bully, coerce, or embarrass any
of the local communities in order to shift blame from the Army for any
of its own shortcomings.
These points are set out in detail in the e-mail exchange, but the
newspapers elected not to report on them. In the first e-mail of the
exchange, dated August 28, 2002, Mr. Lawrence Skelly, who worked for
me, recited the objective to encourage more emergency-preparedness:
``We wholeheartedly support the exercise [of emergency-preparedness
systems] described below. It is imperative that we begin building trust
and confidence in the Anniston region emergency response system that
the Army, through CSEPP [Chemical Stockpile Emergency Preparedness
Plan], has pumped over $100M into the last twelve years.'' Skelly to
Distribution (Aug. 28, 2007).
Mr. Skelly further elaborated on our commitment to preparing the
community for safe operations, stating that current methods of
encouraging preparedness had not worked well:
In summary, we have a responsibility to the community to help it
get ready [for operations]. Clearly, the current CSEPP approach for
conducting a once-a-year exercise is not working in Anniston. The
public is nervous and we are troubled by the recent refusal of certain
county agencies to participate in exercises. The community is not ready
[emergency preparedness] for toxic operations [introducing chemical
agent into the plant], despite the millions of dollars poured into
emergency management in the region. We must change that status.
Id. He laid out the concept of ``looking at taking an aggressive,
proactive approach to conducting a series of exercises . . . beginning
in the very near future and continuing until the community declares
itself adequately prepared for a CSEPP emergency.'' Id. (emphasis
supplied).
Mr. Skelly also laid out an idea for exercising more frequently
than once a year:\7\ ``What we envision is a monthly exercise paradigm
that focuses on specific response activities. One exercise might drill
the medical component of the response system. The next exercise might
focus on command and control. Each exercise could work more than one
CSEPP functional component.'' Id. The point here, of course, was to be
forward leaning, to show leadership in proposing a series of exercises
to enhance community safety and engage it in emergency preparedness
planning.
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\7\ This concept of exercising more than once a year and exercising
parts in addition to the whole had worked elsewhere and so we believed
it would also work at Anniston: ``This model has worked exceptionally
well at the Umatilla [Oregon] site and we believe it will work in
Anniston too.'' Skelly to Distribution (Aug. 28, 2002).
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My own e-mail of August 28, 2001, the first of two in the exchange,
also emphasized that point, stating that ``I did not read Larry's e-
mail [of August 28, 2001] to imply that anyone in the Army (or FEMA)
[Federal Emergency Management Agency] performed poorly but to reflect
the reality that Anniston is refusing to cooperate in preparedness
activities.'' Shearer to Lantzer (Aug. 28, 2001).\8\ I emphasized that
point again in another e-mail of September 9, 2001, the second of the
two in the exchange, stating that the ``objective of the Army's
invitation, to be issued by Dr. Fiori (ASA(I&E)) [Assistant Secretary
of the Army for Installations & Environment], is to encourage Anniston
to participate in the very drills that it has heretofore declined.''
Shearer to Conklin (Sept. 9, 2001).
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\8\ Lt. Colonel Lantzer, of the Soldier Biological and Chemical
Command (SBCCOM), to whom my e-mail was addressed, was offended that
our office, which had policy, guidance, and oversight responsibilities,
was stepping into her turf to execute. Yet we were seeking to do just
that: Begin the process of developing the policy on engaging
communities and Mr. Skelly's e-mail was the very first step in that
process.
SBCCOM was not part of my office or of my principal's office. It
was a separate Army organization in the military, not civilian
leadership, portion of the Army.
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Some of the newspapers reported that the objective of this concept
was to issue a ``challenge'' or ``invitation'' that we knew would be
rejected. The Army, the newspapers asserted, would then attempt to
shift the blame for delayed operations from itself to the communities
when the ``challenge'' or ``invitation'' was rejected. The newspapers
predicated this contention on the well-known fact that the communities
had been funded for some, but not all, of the necessary emergency-
preparedness equipment.
The facts and the plain statements in the e-mails, however, belie
the newspaper assertions. Mr. Skelly recognized the vital importance of
funding the remaining necessary emergency-preparedness equipment in his
very first e-mail proposing the idea and seeking comment on it. He
noted that the Army had an obligation to ``ensure'' that the community
had sufficient resources and support to carry out the proposal: ``We
will begin developing the proposed program with SBCCOM [Soldier
Biological and Chemical Command], AMC [Army Material Command], and FEMA
to ensure the Anniston community has sufficient resources and support
to carry out this proposal.'' Skelly to Distribution (Aug. 28, 2007)
(emphasis supplied). Obtaining funding for the remaining equipment was
thus an integral part of the idea from the very start.
Mr. Skelly's e-mail proposing the idea, moreover, laid out a phased
approach so that exercises would take place with the resources on hand
and progress as more became available: ``A range of drills falling
between basic tabletop exercises and full up field exercises with
deployment hot lines, field response teams, and so forth, probably
would accomplish the objective of providing the Anniston CSEPP
community with a variety of exercise opportunities.'' Id. (emphasis
supplied). Tabletop exercises, for example, require no field equipment
because they simulate command-and-control responses. They require,
instead, tables, paper, telephones, and people, which were in ready
supply. The inclusion of these type exercises flatly rebuts some
newspaper claims that the Army's intent had to be malevolent because
the community did not have field equipment, such as first responder
suits. One can participate in a tabletop exercise without first
responder suits.
In addition to our very serious concern about community safety, our
second objective was to document the Army's obligations to exercise and
prepare the local communities. We sought also, as part of this, to
document the Army's due diligence in adhering to that preparation
obligation in the likely event that Congress, the Office of Management
and Budget (``OMB''), or a lawsuit sought evidence of it. The program
at that time received a significant amount of guidance from the
Congress, OMB, and occasional lawsuits, and we had an obligation under
the Administrative Procedures Act and good-business practices to
document our efforts and to build an administrative record.
I stated this need to build a record: ``He [Mr. Skelly] is doing so
at my request, which is predicated on our . . . need to build a record
showing that the Army has exercised all due care in preparing for
operations.'' Shearer to Lantzer (Aug. 28, 2001). But I also emphasized
that the primary purpose was to encourage emergency preparedness: ``The
objective of the Army's invitation, to be issued by Dr. Fiori
(ASA(I&E)), is to encourage Anniston to participate in the very drills
that it has heretofore declined. The further purpose of the invitation
is to create a record demonstrating that the Army has exercised due
diligence in preparing for operations, including encouraging Anniston
to participate in exercises intended to prepare it for a potential
emergency.'' Shearer to Conklin (Sept. 9, 2001). I concluded that
``[i]n sum, the Army seeks to document the invitation and to document
the response or lack thereof.'' Id.
The objective underlying each of the preceding two, and perhaps
among the most important, was obtaining the funding necessary to
provide the community with all the resources it needed. Mr. Skelly
pointedly focused on that need in his first articulation of the idea to
engage the local communities: ``We will begin developing the proposed
program with SBCCOM, AMC, and FEMA to ensure the Anniston community has
sufficient resources and support to carry out this proposal.'' Skelly
to Distribution (Aug. 28, 2007). Contrary to the newspaper reports,
then, obtaining the funding for the resources was as much a part of the
initial thinking as planning an exercise schedule and documenting Army
due diligence.
So, in sum, the initial thinking on how to engage the local
communities included three crucial objectives: (1) encourage more
emergency-preparedness exercises and training and the participation of
all the local communities; (2) document the Army's efforts at building
readiness; and (3) obtain the funding for the resources that the
community's needed.
e-mails and news reports reflect preliminary thinking--not final
decisions
While the newspapers reported that these e-mails reflected a so-
called ``plan,'' the fact is that they merely related our preliminary
thinking on how best to build emergency preparedness and the staff's
internal debate on it. Neither the e-mails nor the news reports reflect
any final decisions or hard-and-fast plans. We were, in short, trying
to figure out what to do.
My principal directed me to prepare a draft letter that reflected
his notion on how to proceed and that also reflected the thinking of
his staff, both that favoring and disfavoring the proposal. My mission
was to transmit his objectives to the staff and to manage the
compilation of a draft path forward and comments favoring and
disfavoring it. He then intended to review the draft path forward,
debate it with staff, and make a decision about whether to proceed with
it or some other course.
Indeed, this internal thinking then represents a snapshot in time
of the staff's thinking about the facts, procedures, and external
pressures. It does not represent a final product, my recommendation to
my principal, or my principal's decision.
The e-mails show that there was great, sometimes acrimonious,
debate among the staff working this issue, and that I was seeking to
articulate the preliminary objectives and focus staff energy on
preparing a proposal and recommendations. They also show some poorly
chosen words, which I address below. But more than anything, they show
that we were thinking through an idea:
``We would greatly appreciate your comments. We will
begin developing the proposed program with SBCCOM, AMC, and
FEMA to ensure the Anniston community has sufficient resources
and support to carry out this proposal.'' Skelly to
Distribution (Aug. 28, 2007) (emphasis supplied).
``We are looking at taking an aggressive, proactive
approach to conducting a series of exercises . . . .'' Id.
(emphasis supplied).
``What we envision. . . .'' Id. (emphasis supplied).
``One exercise might drill . . . .'' Id. (emphasis
supplied).
The next exercise might focus . . . .'' Id. (emphasis
supplied).
``He [Mr. Skelly] has sought comment among action
officers at his level in order to obtain the information
necessary to prepare my request for the requisite staffing.
Larry [Skelly] and I will staff the action [i.e., provide it
for concurrence] to come to you because you have the resources
to conduct the activities.'' Shearer to Lantzer (Aug. 28, 2001)
(emphasis supplied).
``The attached draft . . . .'' Skelly to Distribution
(Sept. 3, 2002) (emphasis supplied).
``I recommend a phased review process . . . .'' Id.
(emphasis supplied).
``[P]lease let them [the Acting Deputy Assistant
Secretary of the Army (``DASA'') for Chemical Demilitarization
(Russell Shearer) and the Deputy Assistant Secretary of the
Army for Environment, Safety & Health] know this is just the
first review and that we still need to send it to SBCCOM, AMC,
and FEMA before we bring it back to them for [the two DASA's]
final approval and signature [before a draft and recommendation
could go to the Assistant Secretary].'' Id. (emphasis
supplied).
``I assume that this will be staffed with OGC [Office
of General Counsel], OCLL (Office of the Chief of Legislative
Liaison], SAFM [Office of the Assistant Secretary of the Army
for Financial Management and Comptroller], OCPA [Office of the
Chief of Public Affairs], etc.'' Ray to Skelly (Sept. 4, 2002).
Yes, the proposed memo needs to go through full
staffing, including AMC and SBCCOM.'' Skelly to Ray (Sept. 5,
2002).
``Thanks for the opportunity to comment on your
exercise proposal.'' Conklin to Distribution (Sept. 9, 2002)
emphasis supplied).
``I believe he would appreciate red-line edits to the
original document or detailed comments that he could easily
input. I encourage you and any others who perceive an issue
with the current draft to provide him with any specific
comments you might have.'' Shearer to Conklin (Sept. 9, 2002)
(emphasis supplied).
``I appreciate your thoughts on the proposal . . . .''
Id. (emphasis supplied).
``They have also sought to obtain comments on the
proposed invitation . . . .'' Id. (emphasis supplied).
``I invite all those to whom this e-mail is addressed
to consider the following concern: Many people copied on this
and prior e-mails in this chain were unnecessary, and we should
be more circumspect in addressing our correspondence. I believe
we would all enjoy the courtesy of debating the relative merits
of a point outside an audience of General Officers, SESs
[Senior Executive Service], and Army Secretariat.'' Id.
(emphasis supplied) (The point here is that, in my experience,
the inclusion of General Officers, SESs, and Army Secretariat
in a debate tended to curtail the debate, which some in the e-
mail chain sought. My principal and I wanted a full and
vigorous debate on the idea so he could reach an informed
decision.)
These statements show that we were weighing a proposal and trying
to determine a path forward. They also demonstrate that the
consideration of that idea would follow a robust comment procedure,
including the Army Staff, both at the senior and staff levels; the
Soldier Biological and Chemical Command; the Army Material Command; and
the Federal Emergency Management Agency. It also shows that my
principal and I would be at the end of the process and would have the
benefit of staff views to evaluate whether to undertake the idea. To
the extent that I injected myself into that process--or was brought
into it--it was to keep the staff work moving so that we had a
recommendation on a proposed path forward.
Mr. Skelly states in one e-mail, contrary to all of the above, that
``Dr. Fiori wishes that we move out quickly on this project . . . So
we don't have time for the usual deliberate staffing within the Army or
the usual FEMA snail's pace to accomplish anything.'' Skelly to Ray
(Sept. 5, 2002). This comment, however, must be understood in context.
In this same e-mail, September 5, 2002, Mr. Skelly had already
committed to full staffing, which was the expectation of my principal
and me: ``Yes, the proposed memo needs to go through full staffing,
including AMC and SBCCOM.'' Skelly to Ray (Sept. 5, 2002). I believe
his intent (I was not copied on this particular e-mail) was to impart
the sense that the consideration process, although very important, was
also time-critical because the longer we delayed, the greater the
schedule would slip for operations and the longer the community would
be left living with a potentially attractive terrorist target.
Neither my principal nor I, moreover, was copied on this particular
e-mail or we would have directed that it be fully vetted in accord with
my prior written instructions.\9\ The staffing of whatever document was
produced also had to come through me before being transmitted to my
principal. I would not have permitted a document to reach my principal
unless it had been fully vetted and, especially, vetted by our general
counsel's office and by our public affairs office. This vetting was our
standard operating procedure, and one from which I would not deviate
then or now.
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\9\ ``He [Mr. Skelly] has sought comment among action officers at
his level in order to obtain the information necessary to prepare my
request for the requisite staffing. Larry [Skelly] and I will staff the
action [i.e., provide it for concurrence] to come to you because you
have the resources to conduct the activities.'' Shearer to Lantzer
(Aug. 28, 2001) (emphasis supplied).
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Finally, my e-mail of September 9, 2002, states a due date of
approximately September 20, 2002, for a draft letter inviting the
community to engage in emergency preparedness activities: ``The Army
intends to send the invitation to Anniston by the middle of next week,
and so a draft must be prepared by close-of-business for Thursday of
this week.'' Shearer to Distribution (Sept. 9, 2002). That due date is
a managerial driver to focus energy and produce a straw-man document
that could be debated with my principal. It is also a series of dates
that accorded to the expectations my principal held of me for when such
a discussion would occur. Without such a driver, in my experience,
staff debate would draw on without end. The due date thus was not a
date certain on which some preconceived notion would be executed but,
instead, a date on which I expected to be able to advise my principal.
Perhaps I might have articulated this point better, but, as with
all of the statements, this statement must be considered in the context
of the statements from numerous individuals and individual e-mails,
interspersed throughout the entire chain of e-mails, all of which
demonstrate that we were trying to figure out what to do. They also
demonstrate that we were in the midst of that process and that the
staff understood it to be a deliberative process--not that we were
marching toward some inexorable, preconceived end point. We were
evaluating an idea, trying to produce a straw-man document (variously
referred to as a ``memo'' or ``letter'' or ``invitation'') so that
staff could comment and debate it, and so that we could then present
that information (the straw-man and the views favoring and disfavoring
it) to my principal for his decision. These e-mails thus represent a
snapshot in time of the staff's thinking about the facts, procedures,
and external pressures. It does not represent a final product, my
recommendation to my principal, or my principal's decision.
In addition, the date of my last e-mail was September 9, 2002, and
my principal received a letter from Senator Shelby on September 20,
2002, advising him that the thinking reflected in the e-mail chain was
unwise. The news reports appeared on September 21, 2002. A letter of
the sort contemplated in the e-mail chain was not sent and did not
appear before or after September 20, 2002.
No letter was ever sent because no letter or other document was
ever brought to me to review or to my principal.\10\ This, of course,
reflected the fact that the staff exhibited intense feelings
disfavoring the idea. This disfavor and, more importantly, the
rationale expressed for it had changed my own thinking about
approaching the situation. Indeed, throughout the process of exchanging
views on this matter I was learning, and coming to the conclusion that
my principal should not ``invite,'' ``drive,'' or ``challenge'' the
local community to emergency preparedness. I had not formulated an
alternative to break the deadlock the idea then under consideration was
to address, yet in the eleven days between September 9, 2002, and
September 20, 2002, my focus was turning in that direction. But before
I could advise my principal that the idea was unwise, someone leaked
the e-mail chain and the learning became moot.
---------------------------------------------------------------------------
\10\ E-mails that transmitted a draft were exchanged at the staff
level, and I was not included on them.
---------------------------------------------------------------------------
i gained valuable and uncommon experience through internal debate and
as consequence of news reports
The preceding discussion is no slight-of-hand to avoid
responsibility for my involvement in the e-mail discussion of how to
engage the communities. I accept responsibility for it. The preceding
simply sets out the mitigating circumstances of that involvement.
I gained valuable and uncommon experience through that internal
debate five years ago. I gained additional valuable and uncommon
experience as a consequence of the e-mail leak and the concern its
disclosure prompted in the communities. I admittedly would have
preferred that the learning would have come through the educational
process of the internal debate alone instead of jointly with the hard
knock of the e-mail leak, congressional interest, and news reports. But
that preference is another lesson learned that I do not have to repeat.
Intergovernmental communication is an art not a science and in this
instance we failed to appreciate how the source of an idea and tone can
dramatically impact relations. The e-mails of Mr. Skelly and me
interchangeably use the terms ``challenge''\11\ and ``invitation.''\12\
Later e-mails recognize that an invitation is a better approach than a
challenge, but, in the end, that is immaterial, too. We should have
sought to work from a ``ground-up'' perspective rather than a ``top-
down'' perspective. That is, we should have consulted with the local
communities even in developing an initial proposal.
---------------------------------------------------------------------------
\11\ See e.g., Shearer to Lantzer (Aug. 28, 2002) and Skelly to
Distribution (Sept. 3, 2002).
Mr. Skelly also stated in an e-mail, which he later corrected, that
the ``attached draft is my effort to toss the gauntlet on the ground
without attacking the State or the counties for inaction.'' Skelly to
Distribution (Sept. 3, 2002). He later corrected his statement to note
that the ``[i]ntent is not to `tell' the State but to `invite' them to
participate.'' Skelly to Ray (Sept. 5, 2002).
\12\ See, e.g., Shearer to Conklin (Sept. 9, 2002) and Skelly to
Ray (Sept. 5, 2002) (``Intent is not to `tell' the State but to
`invite' them to participate.'').
---------------------------------------------------------------------------
While we perceived the idea to be a genuine invitation, with
resources attached, such an invitation from on high might be understood
as an ultimatum. Quiet discussions at the local level might have a more
productive impact. This was a fine point, a key distinction, that staff
debate\13\ made to me and that I had accepted as the news reports
broke.
---------------------------------------------------------------------------
\13\ Conklin to Shearer (Sept. 9, 2002).
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Our idea to issue a ``challenge'' or ``invitation'' was a product
of the poor relations that existed when my principal assumed management
of the program. But we should not have assumed that an adversarial
rapport with the community would flow from our efforts. The newspapers
accurately reported that Mr. Skelly commented that the Army would
record and make known those who elected to participate and those who
did not: ``To support this robust exercise program we would launch a
media campaign that informs the public about the purpose if the drills,
who we hope to have participate and what our objectives are. We would
also make it known what agencies refused to participate and their
excuses.'' Skelly to Distribution (Aug. 28, 2007).
Our objective was not to embarrass the community but to encourage--
perhaps strongly encourage--the communities to participate in emergency
preparedness. Indeed, the centerpiece of the thinking was not a public
relations battle against the local and state agencies but to devise a
method that caused them to be engaged in emergency-preparedness and
allowed us to destroy the chemical stockpile and the risk it presented.
But that, as before, is immaterial. Our communications plan should have
focused on meeting with the communities and engaging them, rather than
on worrying about what we would do in the event they declined to engage
with us.
While I present these as lessons learned, the fact is that I was
learning this information as staff debate progressed. I could not act
on this information because the e-mails were leaked before I had an
opportunity to take action. Learning from an event, accepting
responsibility, and using the lessons taught by the event, I believe,
is the mark of maturity and the desire to improve. In my situation, I
learned that inter-governmental communication is complex, and I now
work more closely with local communities and their Congressional
delegations, even in devising preliminary paths forward. I believe that
this experience and sensitivity to the complexity of inter-governmental
communication is far from ubiquitous and so I have gained an important
asset.
My record shows that I have engaged in effective communication with
local communities both before the event and after:
I worked with the local community at the Aberdeen
Proving Ground and the Maryland congressional delegation,
principally Senator Mikulski and her staff, to change radically
the plan for destroying mustard agent there and thereby safely
expedite the agent destruction schedule by several years
(January-August 2002).
I worked with the Confederated Tribes of the Umatilla
Indian reservation to prepare them for the safe operation of
the Umatilla Chemical Agent Disposal Facility (December 2001-
February 2003).
I reversed, along with my principal, a prior DOE
Assistant Secretary's policy to centralize worker-health
screenings and instead kept them at the local level. Working
with workers and their representatives at the local level was
essential to structuring a program that was most useful to them
(August-September 2004).
I worked with local worker groups to devise methods to
provide them with operating-experience data more efficiently
(January 2006-October 2006).
I am currently working with individual workers and
worker groups to address beryllium monitoring and reassignment
to non-beryllium areas (July 2007-current).
My career and my record thus substantiate that I have been
dedicated to protecting worker safety and health and the environment.
This is the true nature of my professional work--not the abstractions
of a few news reports based on two e-mails trying to focus staff work
on developing proposals to solve a problem.
As a final footnote to the Anniston event, the Calhoun County
Chamber of Commerce of Calhoun County, Alabama, the location of the
Anniston Chemical Agent Disposal Facility (ANCDF), adopted a Resolution
commending my principal for his work in bringing the ANCDF on-line.
(Attachment 5).
Question 2. Could you explain to the Committee what your role was
in this controversy?
Response. See Response to Question 1.
Question 3. Please provide the Committee with all of the emails or
other documents relating to this matter in your possession, or the
possession of the Department of Defense.
Response. I have included these documents in my response to Senator
Boxer's QFR 1.
Question 4. Why did you leave the Department of Defense? Please
provide any evaluation of your work performance while at the Department
of Defense, including any evaluation of your performance in relation to
the issues at Anniston described above.
Response. I resigned my appointment at the Department of Defense
because the President promoted and appointed me to serve as the
Principal Deputy Assistant Secretary of Energy (Environment, Safety &
Health).
I have attached as Attachment 8 my job performance reviews
assessing my performance during the period November 2001 to August
2004. Please continue to accord these documents the confidentiality of
the Privacy Act and manage them as Official Use Only.
[The referenced documents may be found in committee's file.]
Response by Russell H. Shearer to an Additional Question from
Senator Lieberman
Question. As was discussed at the hearing, it has been reported
that you were involved in an incident in September 2002 in which the
Army was having a dispute with officials in Anniston, Alabama
concerning participation in a training exercise related to a chemical
weapons incinerator. According to news reports, local officials were
unwilling to join in the exercise until they had received certain
relevant equipment. Unable to resole the dispute, certain Army
officials apparently came up with a plan to issue a challenge to local
officials that was certain to be rebuffed and then use that refusal as
the basis for a series of press releases blaming the local officials
for any lack of preparedness. According to the Birmingham News, there
was an email from you indicating you had been the one who had directed
that the challenge be issued. At the hearing you acknowledged the email
and your involvement in this incident.
The Chemical Safety and Hazard Investigation Board frequently needs
to work with state and local officials who also may be responding to or
investigating the scene of a chemical incident. If confirmed, will you
commit to working to resolve disputes with state and local officials in
a cooperative manner and to refrain from using your position to conduct
public relations battles against state and local officials.
Response. I am absolutely committed to working with state and local
officials in a cooperative manner to resolve disputes and to refrain
from using my position to conduct public relations battles against
state and local officials.
I have set out my involvement in the Anniston, Alabama, event in my
response to Senator Lautenberg's QFRs 1 and 2.
Response by Russell H. Shearer to an Additional Question from
Senator Cardin
Question. You do not appear to have relevant private sector
experience in chemical safety processes. What specific knowledge do you
bring to this position that is directly relevant to the subject matters
that the Chemical Safety Board considers?
Response. My professional career has focused on high hazard
operations including chemical and nuclear operations. I have had the
opportunity to work for programs and companies involved in chemical
refining, distillation, blending, blend-down, catalytic regeneration,
rework, and destruction operations. I have also had the opportunity to
work for programs involved nuclear reactor testing, nuclear weapons
production, cleanup of nuclear weapons facilities, sophisticated
national laboratories, and chemical weapons destruction facilities, all
of which employ numerous chemical processes in their operations.
True, some of the experience is not from the ``private sector,''
but that is because I have dedicated more than three-fourths of my
professional career to public service. Looking exclusively at private-
sector experience in my case would be misleading for three reasons.
First, all of the government agencies for whom I have worked employed
chemical processes that are either the same, similar, or directly
analogous to processes employed by the private sector. Second, all of
the government agencies for whom I have worked contract with the very
best and brightest private-sector companies to operate their
facilities. I have been responsible for setting the standards of
process-safety management (``PSM'') with which these private sector
companies must comply, for providing technical expertise to help them
comply, and for enforcing against them when they fail to comply. Third,
the private sector employs a less rigorous PSM methodology than that in
which the Government has trained me for many years.
I can therefore bring technical competency in a more rigorous
approach to PSM.\14\ I explain some aspects of that more rigorous
approach below in my comments on how the standard should be improved.
But for the purpose of explaining my skill set, I will lay out the
standard briefly and show examples for each of its steps.\15\
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\14\ In fact, Admiral Hyman G. Rickover, often cited as the
``Father of the Nuclear Navy,'' is credited with implementing and
employing the most careful and exacting process-safety management
standard known. THEODORE ROCKWELL, THE RICKOVER EFFECT: HOW ONE MAN
MADE A DIFFERENCE (2002). The Navy, as a consequence, has safely
steamed more than 133 million miles on nuclear power. It is in this
strict standard of process-safety management in which I have been
trained.
The Atomic Energy Commission developed similar criteria for safety
analysis in the 1960s, a more refined and codified version of which is
still used by the Nuclear Regulatory Commission to license commercial
nuclear facilities.
\15\ In addition to the following technical PSM expertise, my
credentials also demonstrate experience in accident analysis and
reconstruction, human factors, and professional standing, which the
Chemical Safety and Hazard Investigation Board's organic statute lays
out as alternate means of qualification.
---------------------------------------------------------------------------
The Occupational Safety and Health Administration's Process Safety
Management Rule\16\ generally requires that once a plant has been built
or significantly modified the employer must (1) gather process safety
information; (2) prepare a process hazard analysis for each process at
the plant; and (3) prepare operating procedures. The rule mandates (4)
employee participation as part of gathering process safety information
and preparing the process hazard analysis. It further requires before
startup (5) preparation of a pre-startup review; (6) training of the
operators; (7) preparation of a mechanical integrity plan, including a
quality assurance process; and (8) preparation of a management of
change process. The rule finally requires (9) investigations when a
safety incident occurs, and (10) periodic auditing of whether the plant
is in compliance with the rule.
---------------------------------------------------------------------------
\16\ 29C.F.R. Sec. 1910.119 (1997); 29 C.F.R. Sec. 1926.64 (1997).
---------------------------------------------------------------------------
process safety management experience
(1) Process Safety Information\17\
---------------------------------------------------------------------------
\17\ Some of the following pigeonholing is not how I would
typically characterize my work because the process-safety management
methodology in which I am trained is more robust, integrated with much
better feedback loops, and casts as overarching functions some of the
individual steps in the OSHA process. I have therefore listed some
skill sets twice in order to reflect the fact they fit more than one
place.
Led effort and developed design guidance (Department
of Energy (``DOE'') Standard 1189) for integrating safety into
design throughout the lifecycle of the facility; includes as a
keystone element PSM at each stage and especially PSM for
selection of safety class and safety significant systems,
---------------------------------------------------------------------------
structures, and components;
Also applicable to Process Hazard Analysis,
Operating Procedures, Employee Participation, Pre-
Startup Review, Training, Mechanical Integrity, and
Change Management;
Developed Dissenting Professional Opinion (``DPO'')
process whereby professional opinions on technical matters are
entered into a formal system and evaluated through an appeal
process by progressively more senior levels of management
(retaliation for DPOs prohibited);
Also applicable to Process Hazard Analysis,
Operating Procedures, Employee Participation, Pre-
Startup Review, Training, Mechanical Integrity, Change
Management, Investigations, and Audits;
Principal author of practical guide to facility and
activity walk downs, which teaches management and employees to walk the
spaces and ask knowledgeable questions designed to ``pull-the-thread''
on key issues indicative of safety performance.
Also applicable to Process Hazard Analysis,
Operating Procedures, Employee Participation, Pre-
Startup Review, Training, Mechanical Integrity, Change
Management, Investigations, and Audits;
Established safety-research office to examine
important safety issues that cross-cut program offices; created
system to coordinate research among offices so that results
could be centralized and available to all; digested past
research work and maintained it in database so that research
could be easily searched and obtained, even though span of
operations was nation- and, in some instances, world-wide.
Also applicable to Process Hazard Analysis,
Operating Procedures, Employee Participation, Pre-
Startup Review, Mechanical Integrity, Change
Management, and Investigations;
Developed guidance on reviewing process-safety
information documents;
(2) Process Hazard Analysis
Conducted hazard analysis and advised senior
management on numerous facilities, including:
Wet chemical and metallurgical facility;
Manufacturing facility for pyrophoric metals;
Manufacturing facility for mixed-oxide fuels
from pyrophoric metals;
National laboratory complex including wet and
dry chemistry laboratories;
High-intensity lasers and neutron sources;
Dangerous metals;
Chemical- and radioactive-waste processing
facility;
Two chemical refineries producing specialized
metals; and
Five chemical incinerators and two
neutralization facilities.
Developed guidance on reviewing process-hazard
analysis documents;
Drafted risk-assessment guide for undertaking
probabilistic and deterministic risk-assessment methodologies
used in assessing process hazards;
Developed program to identify, collect, and analyze
un-reviewed safety questions; i.e., safety questions not
already analyzed in existing process hazard analyses or that
arise due to changes in operations.
Assessed hazards of DOE chemical and nuclear facility
operations to determine whether they exhibit characteristics of
high-consequence--low-probability events, such as Columbia
Space Shuttle accident;
One of key senior officials responsible for
establishing Central Technical Authorities (``CTAs''); CTAs
grew out of analysis of Columbia Accident Investigation Board
findings, coupled with recommendation from Defense Nuclear
Facilities Safety Board, that large, complex organizations
often require centralized authority responsible for tracking
day-to-day compliance with operating limits and any variance
from those limits; CTAs help ensure compliance with process-
safety documents and operating limits;
Familiarized with design basis threat (``DBT'')
analysis, uncommon skill that analyses facility's ability to
withstand attacks of various sorts, such as well-armed
terrorist squad or detonation of explosive device; DBT analysis
cross-cuts safety because safety systems must be sufficiently
robust to withstand DBT but cannot create threat to the
workers; with the Department of Homeland Defense focusing on
ensuring that commercial chemical and other high-hazard
facilities can withstand DBT, increasingly important to ensure
protection methods do not create un-mitigated or unreasonable
risks to workers or public;
Implemented integrated safety management system
(ISMS) that utilizes a quality assurance methodology and
feedback loop to perform work safety: (1) define scope of work;
(2) analyze hazards; (3) define hazard controls; (4) conduct
work in accord with hazard controls; and (5) provide feedback
on performance of the work and the ISMS system and analysis;
system applies not only at macro level of process information,
process hazard analysis, writing procedures, pre-startup
reviews, training, mechanical integrity and quality assurance,
change management, and incident investigations but also at
individual worker level, whether that work is turning a spade
or dirt or loosening the bolts to change-out a valve;
Determined proper national consensus standards to be
incorporated in standards and, therefore, analyses.
(3) Operating Procedures
Revised existing operating procedures to reflect best
practices and changes for improvement, such as new operating-
experiences program;
Developed new safety procedures, such as
nanotechnology safety policy and best practices;
Created system of reports to alert facilities of
operating experiences that may mandate change in procedures or
incorporation of best practices;
Developed special-emphasis safety programs to enhance
safe operations, including electrical safety, laser safety,
rigging and hoisting, and Lock out/Tag (LOTO) out;
Implemented, educated, and championed conduct-of-
operations (also called rigor-in-operations), in order to bring
disciplined operations to chemical and nuclear facilities;
successfully changed the safety culture of these facilities and
thereby reduced events that could affect safe and reliable
operations.
(4) Employee Participation
Engaged employees and labor unions to find means of
communicating operating experience, such as incident
investigation findings, directly to workers in timely manner.
Established training and special-emphasis safety
programs to educate workers on procedures with which they were
having difficulty (as reflected in safety-performance metrics).
(5) Pre-Startup Review
Developed guidance under which pre-startup review
plans were undertaken and analyzed;
Reviewed pre-start-up review plans and results.
(6) Training
Devised and managed safety-training programs for
workers and management, such as Federal Technical Competency
Panel, which prepared and evaluated (by examination)
individuals from shop floor through senior management possessed
adequate skills, and Nuclear Executive Leadership Training,
which trained and evaluated (by written examination) management
to ensure they understood and could perform process-safety
management and other key safety functions.
I was also trained by the course and
certified by written examination;
Managed training program for conduct-of-operations
(also called rigor-in-operations) in order to educate plant
managers and bring better discipline of operations to their
facilities;
I was also trained by the course and
certified by written examination.
(7) Mechanical Integrity Plan & Quality Assurance
Developed program to identify, collect, and analyze
un-reviewed safety questions;
Managed sophisticated Quality Assurance and Quality
Control program for chemical and nuclear facilities, which
included:
Designing facilities and safety systems,
structures, and components (``SSCs'');
Procuring materials;
Construction, including welding, pouring
concrete, and other key tasks;
Component changes, including in-kind changes
or for new or different equipment;
Plant software to operate key systems,
including key safety systems; managed development of
the standard (procedure) governing preparation of
quality assurance programs for software;
Suspect/Counterfeit Items and Defective Items
(SCI/DI) program, which communicates information to
facilities about under-rated or defective parts so that
parts will be removed from service and, thereby,
prevent accident or event;
Safety quality Assurance (Integrated Safety
Management System);
Environmental quality assurance (ISO 14001);
Nuclear quality assurance (ASME NQA-1);
Product quality assurance (ISO 9000);
Integrating all of the quality assurance
systems (safety, environment, nuclear, and product);
Managed enforcement program with civil penalty authority
for violations of quality assurance and quality control programs;
Built team to assist field with maintenance issues in
order to better understand how structures, systems and component
reliability can be improved to avoid safety issues, functional
failures, minimize equipment and facility downtime, maximize component
life, identify critical failure modes, and maximize asset performance.
(8) Change Management
Managed effort to regain configuration control of
chemical facilities so that they existed in a known and
analyzed condition and so that the Piping and Instrumentation
Diagrams (``P&IDs'') reflected the true physical state of the
plant (ball valves had been swapped out for gate valves, for
example, and change was undocumented on P&IDs and unanalyzed
for safety and function impact);
See also Mechanical Integrity Plan & Quality Assurance.
(9) Incident Investigations
Managed and conducted more than thirty accident and
event investigations and analyses that employ root-cause and
other methodologies only recently adopted by Chemical Safety
and Hazard Investigation Board:
4 Investigations and analyses include typical chemical events,
such as failure to follow elements of process-safety management
(failure to follow procedure and equipment failure, for
example), chemical fires, contamination, chemical exposure, and
vapor inhalation, as well as common industrial accidents, such
as arc flashes and failure to use fall protection;
Directed use of new root-cause analytical technique,
``Human Performance Improvement,'' which ferrets out latent
organizational defects that lead to most human error, rather
than focusing on ``blaming the worker;''
Chemical Safety and Hazard Investigation Board
recently applied methodology in its BP Texas City report;
Conducted detailed analysis of data, including events
inside and outside my company or agency to ascertain whether they
contained insights for our safety performance; this analysis included,
among others, the National Aeronautics and Space Administration's
Columbia Space Shuttle accident, the Davis-Besse nuclear power plant
event (involving reactor-vessel head corrosion), and Chemical Safety
and Hazard Investigation Board findings on chemical sector events;
Developed set of leading corporate safety performance
metrics;
Aggregated data to seek out broad (generic) implications
and operational improvements; devised a sophisticated analytical tool
to promote operational awareness of real-time, facility-level safety
and production performance;
Created system of reports to alert facilities of
operating experiences that may mandate change in procedures or
incorporation of best practices, including:
Daily Operating Experience Reports--daily reports of
events in near real-time;
Operating Experience Summaries--monthly reports
digesting issues across complex to assess trends and other
important insights;
Special Operations Reports--analyses that drive
action to prevent event recurrence;
Alerts--analyses that initiate immediate action on
significant safety issues;
Bulletins-analyses share information and recommend
actions on safety issues [See Attachment 9 for Bulletin on
Chemical Safety and Hazard Investigation Board report on
Delaware City event; See Attachment 10 for Bulletin on Texas
City];\18\ and
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\18\ These reports were prepared at my direction and using the
focus that I provided.
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Safety Advisories--analyses provide information on
potentially significant safety or health issues [See Attachment
11 for Advisories on Texas City and on Chemical Safety and
Hazard Investigation Board report];\19\
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\19\ These reports were prepared at my direction and using the
focus that I provided.
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Communicate best practices in all of the preceding
documents;
Implemented technique known as ``Prevent Events,'' which
supplies talking points synopsizing an analysis in a manner immediately
useful to workers on shop floor;
Managed report and recommendations prepared by my office
designed to address recurring chemical incidents.
(10) Auditing
Trained in concept of oversight and self-assessment,
which is more robust process than simple compliance auditing; oversight
and self-assessment are constant, ongoing processes that continuously
evaluate the state of safety performance--not just compliance with the
rules--to ensure that performance exceeds mere compliance; oversight
and self-assessment also seek out and correct potential safety issues
before they become a near miss or event; it also includes setting
standards of excellence against which performance is measured;
Managed program reviews to evaluate whether they met
basic safety-system standards and thus complied with requirements; also
evaluated extent to which programs excelled beyond mere compliance;
Implemented new integrated oversight procedure, that
includes safety, environment, and health oversight;
Oversaw development of safety performance assessment
guide;
Oversaw development of extent of condition review guide,
which explains how to assess the prevalence and persistence of an issue
across a facility, operation, or entity.
broader process safety management experience
I also possess additional experience that overarches the entire
process-safety management regime:
Served as the Acting Assistant Secretary and as the
Principal Deputy Assistant Secretary for Environment, Safety & Health,
which function as Chief and Principal Deputy Chief Safety Officers,
respectively, of the Department of Energy (DOE, if it were a private
entity, would be among the largest manufacturing corporations in the
world);
Directed a $100M annual, 200-person safety,
environment, and health program;
Ran DOE's chemical safety program, including oversight of
DOE's chemical hazard characterization and analysis process, annual
chemical management conference, and development of chemical management
best practices;
Educated and certified (by written examination) by
DOE as senior manager qualified to oversee and manage process-
safety management functions.
Managed, oversaw, and advocated for DOE's promulgation of
the Worker Safety and Health Program rule (10 C.F.R. Part 851), which
is DOE's equivalent of the OSHA regulations; I also resolved key issues
associated with its implementation, such as incorporation of national
consensus standards;
Brought new corporate focus to building an assessment-
driven, rather than event-driven, complex through emphasizing
translation of lessons learned into operating experiences used at the
facilities, through enhanced oversight, through enhanced self-
assessment, through promulgation of new evaluative techniques, such as
Human performance Improvement, and through assessing extent of problems
rather than merely studying the problem at-hand;
Former manager of a program operating five thermal
destruction and two neutralization facilities to destroy chemical
weapons;
Embedded elements of process-safety management in
program; brought concept of conduct-of-operations to program;
improved safety performance record;
Trained in Emergency Planning and Community Right-to-Know
Act (``EPCRA'') and served as Savannah River Site's EPCRA attorney.
Advised at length on pollution prevention in order to
minimize the emissions, discharges, and hazardous waste reportable on
Form R; applied process-safety management as part of this advice to
encourage clients to incorporate less hazardous constituents in
process, engage in closed-loop recycling, and adopt operating
procedures that result in less off-specification material.
I have also attached the independent evaluations of my skills by
Dr. Mario P. Fiori, a consulting engineer (Attachment 12); Mr. Frank B.
Russo, Senior Advisor for Environment, Safety & Health to the
Administrator of the National Nuclear Security Administration; and Mr.
David B. Amerine, Senior Vice President of Parsons.
My long-term involvement has allowed me to become competent in both
standards of process-safety management--that employed in the hazard
operations in which I have been engaged and that adopted by OSHA. I
have viewed the OSHA rule as a vital component in safe commercial
operations but it is only a floor, and a floor that contains elements
that I believe should be strengthened. I will therefore seek, if
confirmed, to work with the Chairman and Board Members to issue
recommendations and provide practical recommendations on improving the
PSM rule in a sensible manner that does not create safe, but ultimately
un-operable, inefficient, and un-economic facilities. Safety is
foremost but it must be--and can be--executed in a manner that does not
break the backs of small and large operations alike.
I will accordingly lay out seven safety management principles that
influence my preliminary views on improving the PSM rule, which follow
those principles.
safety management principles
1. Safety is a foremost consideration.
Companies have a moral and legal duty to ensure
worker safety.
Governmental inspections and internal auditing alone
will not drive safe behavior.
Employers must set and abide by high standards in
order to encourage and create a good safety culture.
2. Safety is Free.
Safety is a good business practice.
Safety investments must be integrated with production
throughout a facility's life.
Safety will become part of routine operations if it
is integrated.
Integrated safety will drive reliability, efficiency,
and productivity.
Safety is not an add-on cost when integrated:
``Safety is Free.''
3. Involve the worker.
No safety management program--process management or
otherwise--works unless the worker on the shop floor
understands safety and is engaged in its promotion.
Good safety records can be aided--but not created--by
management.
Workers on the shop floor create good safety
records.
Managers create the environment for such a record to
flourish by providing attention to and support for safety.
The purpose of a procedure, in fact, is to allow a
worker to perform his duties in a safe and productive manner
that will result in overall safe and reliable operations.
4. You can't tell what's wrong unless you know what's right.
Subjective judgments and ``pencil-whipping'' a
problem do not create a safe working environment.
Adherence to proven, accepted, and applied national
consensus standards\20\ can create a safe working environment.
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\20\ The American Society of Mechanical Engineers, National Fire
Protection Association, Institute of Electrical and Electronics
Engineers, International Standards Organization (commonly known as
``ISO''), among others, are good sources for proven, applied national
consensus standards.
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Plant personnel must be technically competent and
inquisitive.
5.What management does speaks louder than what management says.
Managers need to talk about the importance of safety.
But it will only be ``talk'' unless managers also
demonstrate a commitment to safety by, for example, walking
engineering spaces, participating in hazards and safety
analyses, and attending tool-box briefings or plan-of-the-day
meetings where forthcoming work is discussed.
6. Experience is the best teacher.
People make mistakes and equipment fails.
Operating experience takes the information from those
events and applies it to ongoing operations in order to avoid
repeating the same mistake.
A critique program is essential, especially at new
facilities with new equipment that lack operating experience,
in order to review the events as a whole rather than
individually so that insights and trends can be deduced.
7. Conduct-of-Operations is critical to safe operations.
Conduct-of-Operations is a defined process by which
rigor in operational safety is imbued in all aspects of a
process, and it includes, as a minimum, the following elements:
Configuration control;
Maintaining the facility in a known and
analyzed state is a key linkage between the hazards
analysis, which sets out safe operating limits, and
operation of the facility;
Verbatim compliance with procedures and no ad-hoc
procedures developed for ``special occasions'' or ``on-the-
fly;''
Procedures are another key linkage between
the hazards analysis, which sets out safe operating
limits, and operation of the facility;
A change or deviation in procedure must be
evaluated in advance in order to determine its affect
on safety systems and operations;
Command and control;
No bifurcation of control;
Hold the senior control-room manager
accountable for activities at the entire facility or
process during the shift.
opportunities for improvement in the process-safety management rule
The preceding principles constitute my ``acceptance criteria'' for
evaluating the PSM rule, and based on them I find several opportunities
for improvement. I have also sought to lay out these opportunities for
improvement with an eye to the results that I believe should be sought.
The PSM rule should use its elements as analytical
tools that can assist the design and construction process.
The PSM rule is, generally, retrospective (i.e., it applies
once the facility is built and operating) and thus misses the
best opportunity to influence the formulation of the safety
envelope. Gathering process safety information, preparing
process hazard analyses, writing procedures, setting up a
change management process, implementing a mechanical integrity
program, building a quality assurance and quality control
system, designing an accident investigation program,
formulating an audit program, and beginning training only
begins when a full up plant is waiting to be operated. The PSM
rule misses an opportunity for process safety information and
process hazard analyses, for example, to influence design and
construction.
I recognize that the appendix to the rule offers up
using some process-hazard analysis as a ``good practice,'' but
this information is far too critical to be considered merely a
``good practice.'' I believe therefore the PSM rule should
integrate these elements into the entire lifecycle of the
plant, including conceptual and final design, systematization
(turn-over from engineering to operations), operations, and
decommissioning.\21\
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\21\ I further recognize that the PSM rule also applies to existing
facilities where thes elements can be applied only to the as-built
facility.
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The PSM rule should adopt more rigorous analytical
techniques.
The PSM rule currently provides no direction on the
application of the process-hazard analytical techniques it
provides as ``safe harbors.'' It does not, for example, mandate
more robust techniques for more complex facilities; even the
guidance in the appendix and the enforcement guide focus the
rigor of analysis on the size--not complexity--of the plant.
The rule therefore provides no substantial check on applying a
less-rigorous method, such as a check-list approach, to a
complex facility. The PSM rule should specifically mandate a
``graded approach'' that directs more complex or hazardous
facilities to employ more rigorous means of process safety
analysis.
The PSM rule should adopt a more robust approach to
procedures.
The PSM rule currently requires only that operating procedures
be readily accessible. It does not require that operating
procedures be used and followed verbatim. The Chemical Safety
and Hazard Investigation Board's report on the BP Texas City,
Texas, explosion found that failure to follow procedures after
a turnaround was an important cause of the event. The PSM rule
should require use of and verbatim compliance with procedures.
It should also endorse a conduct-of-operations approach to
operations.
The PSM rule should adopt an overarching approach to
quality assurance and quality control.
The PSM rule and appendix refer to quality assurance in the
mechanical integrity context, and even then only in the context
of construction materials, fabrication, inspection, and
installation. It refers to quality control only in the
operating procedures context, and it is limited to quality
control of raw materials and hazardous chemical inventory
levels.
The PSM rule should, instead, establish quality assurance and
quality control as the overarching management system and gate
keeper, respectively, that they should be when undertaking
high-hazard operations. It should express some fundamental
expectations about a quality assurance and quality control
processes. It should also endorse integrating quality assurance
into all the other necessary processes, such as the conduct of
work itself, configuration control, procedure development, and
change management, among others. It should endorse integrating
quality assurance systems with one another, such as Integrated
Safety Management (``ISMS'') for safety, ISO 14000 for
environment, and ISO 9000 for products. The PSM rule should,
lastly, endorse more than a mere compliance audit. Utilizing a
graded approach, the rule might endorse a self-assessment and
oversight program that seeks more than just mere safety
compliance.
The PSM rule should show a strong linkage between its
safety-management focus and technical standards that lay out
the methodology for conducting analyses, determining adequacy
of design or operation, or managing risks.
The PSM rule shows no linkage between process-safety
management and technical standards. It lists some potential
sources of those standards in the appendix but it does not cull
out or mandate particularly important standards even for
conducting a process-hazard analysis. This lack of interface
between the rule and the standards makes it very difficult to
assess the objective ``reasonableness'' of an analysis, design,
and operating procedures, among others.
The PSM rule should point to, incorporate by reference, adopt,
or even refer to specific national consensus standards that are
typically the benchmark by which ``reasonableness'' is
assessed. I believe that anything would be better than simply
leaving the question wide open because certain disciplines have
hard-and-fast tests for reasonableness. The American Society of
Mechanical Engineers standards for pressure vessels are, for
example, the benchmark for assessing that equipment. Even some
local codes reference these national consensus standards; the
PSM rule, which is, in a sense, a national safety code, should
do likewise.
Question 2. What evidence can you point to in the last two years
that demonstrates your independence and willingness to press a
reluctant Administration into action?
Response. My record demonstrates numerous instances where I have
taken unpopular actions to ensure that environment, safety, and worker
health are properly protected. The examples provided below demonstrate
my willingness to take the necessary steps to protect worker safety and
health and the environment.
The Department of Energy (``DOE'') regulates itself for
occupational safety. Until 2006, DOE had no regulation governing
occupational safety and no means of enforcing against its contractors
for violations of the Department's expectations regarding occupational
safety. It relied, instead, on a Department of Energy Order.
I managed, oversaw, and advocated for DOE's promulgation of the
Worker Safety and Health Program rule (10 C.F.R. Part 851), which is
DOE's equivalent of the OSHA regulations. I also resolved key issues
associated with its implementation, such as incorporation of national
consensus standards. The rule had previously failed to be adopted under
a prior Assistant Secretary because of internal disagreements about the
incorporation of national consensus standards and even the need for
such a rule, despite Congressional direction to adopt one. My principal
and I provided the leadership in the Department to accomplish the task,
and I provided technical guidance to my staff to resolve key issues.
I have spent much of the last three years at DOE
expressing the need for Federal employees to spend time out of their
offices and in the field where work, such as high-level waste transfer
operations, is conducted. Because the office of environment, safety,
and health has no authority to direct program activities outside its
own office, I was unable to direct Federal employees in other programs
to spend more time in the field. My observations and recommendations,
thus, met with notable resistance, principally from senior career staff
who felt they spent enough time in the field. I continued in making
this recommendation, including at senior staff calls, and achieved some
success in encouraging a greater field presence.
I conceived of the need for and established the general
parameters of a departmental ``design and build'' standard, DOE
Standard 1189, currently under review, which provides binding guidance
for integrating safety into design throughout the lifecycle of a
facility. The standard includes as a keystone element PSM at each stage
and especially PSM for selection of safety class and safety significant
systems, structures, and components. The need for such a standard was
not widely agreed upon, even among my own staff, and I had to exercise
considerable leadership within the Department in order to win its
development.
Question 3. Do you believe that Community Right-to-Know laws are a
help or a hindrance or simply irrelevant to the safe functioning of
chemical plants in America?
Response. The answer to this question, from any safety
professional's perspective, is emphatic: Community Right-to-Know laws
are critical.\22\ These laws, and specifically EPCRA, require emergency
planning, emergency notification in the event of a release of a
reportable quantity, hazardous chemical storage reporting requirements,
and toxic chemical release inventory (Form R).
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\22\ I understand this question to inquire about my views of the
Emergency Planning and Community Right-to-Know Act, which is also known
as SARA Title III and became law through the Superfund Amendments and
Reauthorization Act of 1986 (``SARA'').
---------------------------------------------------------------------------
The emergency planning requirements of EPCRA are the lynchpin by
which local responders know what sorts of events and chemical to which
they may potentially have to respond. It is also the mechanism by which
evacuation plans are developed and by which emergency responder
training takes place.
The emergency notification requirement is the mechanism that causes
the facility that is the source of the release to notify the local and
state emergency responders and planning commissions. It also requires
the facility to report key information about the release that is
helpful to responders and commissions in addressing that release.
The hazardous chemical storage reporting requirements inform the
community about the sorts of hazardous materials stored by a facility
in that community. The requirements, equally importantly, mandate that
the facility provide the state and local emergency planning commissions
with information about the chemicals stored at the facility (either on
a Materials Safety Data Sheet (MSDS) or on a detailed list of MSDSs).
Finally, it requires that facilities submit an inventory of hazardous
chemicals stating the maximum amount held at the facility, the daily
average amount, and the location of the chemicals.
Finally, EPCRA requires annual submission of the Form R, or Toxics
Release Inventory (``TRI''). This Form R informs the public and local
governments about releases from the facility, both those permitted
under the pollution-control statutes, such as the Clean Air Act, or
those that occur accidentally. It provides, in my experience, an
important forcing function to require facilities to aggressively seek
out the pollution prevention required by other statutes, such as the
Resource Conservation and Recovery Act.
Collectively these provisions provide the tools that state and
local communities and facilities require to respond in the event of a
chemical event. I therefore view them as critical to safe operations in
the chemical sector.
Question 4. Finally, can you cite an instance in which you have
promoted additional legislation or regulations to increase public and/
or worker safety in any of your previous positions?
Response. I am able to cite several instances in which I have
promoted additional legislation in order to promote both worker and
public safety:
I managed, oversaw, and advocated for the Department of
Energy's (``DOE'') promulgation of the Worker Safety and Health Program
rule (10 C.F.R. Part 851), which is DOE's equivalent of the OSHA
regulations;
I issued binding recommendations for the improvement of
safety-management functions at DOE. These recommendations resulted from
a review I managed and participated in that evaluated the safety
insights presented by the reports on the Columbia Space Shuttle
Accident Investigation and the corrosion of the Davis--Bessie Reactor
Pressure Vessel Head;
I have managed and conducted more than 30 accident and
event investigations, which have resulted in numerous recommendations
to change DOE and other agency procedures, standards, or rules in order
to improve safety performance;
I wrote an article advocating adoption of the Basel
Convention governing international hazardous waste transfers and the
Bamako regional convention (Africa) on the same subject; I observed
while a volunteer law clerk for the United Nations Environment
Programme in Nairobi, Kenya, that the international waste trade
resulted in some notable injury to public health when the receiving
nation was not well prepared to store or manage those wastes; and
I volunteered as a law clerk in the Natural Resources
Defense Council air program analyzing clear-air law for legislative and
regulatory opportunities for improvement (1994).
Finally, I was a plaintiff in a lawsuit challenging a
state supreme-court rules change. The rules change adversely affected
the ability of law clinics to represent indigent and moderate-income
clients in environmental matters, and thus to protect the safety and
health of the public.
Senator Boxer. Thank you.
Mr. Gilliland, welcome.
STATEMENT OF THOMAS C. GILLILAND, NOMINEE FOR BOARD MEMBER,
BOARD OF DIRECTORS OF THE TENNESSEE VALLEY AUTHORITY
Mr. Gilliland. Madam Chairman, thank you for your
leadership in today's hearing, and to the members of the
Committee, I want to thank you for giving me the opportunity to
appear before you in this confirmation process.
I also want to thank Senator Isakson, Senator Chambliss and
Congressman Deal for their recommendation, and to the
President, my thanks for this nomination. I am grateful to all
of them and humble for their confidence in me that this
nomination represents.
I also want to thank my wife, Candy, who is here with me
today. I am grateful for her encouragement and support in
undertaking the responsibilities and time that will be
necessary to serve as a director of the Tennessee Valley
Authority if I am confirmed.
Our home is in a small community in the mountains of north
Georgia, where generations of my family have lived. Until the
late 1930s, this area, as well as much of the Tennessee Valley,
was without electricity. The Tennessee Valley Authority not
only brought light, it brought economic growth, flood control
and environmental stewardship to our region. In the late 1930s,
my father graduated from law school at the University of
Kentucky. His first job was at the TVA, handling land
acquisitions for reservoirs and power generating facilities in
the mountains of north Georgia. There he met my mother, so in
many ways I appear before this Committee today because of the
Tennessee Valley Authority.
Although I have never held public office, over the years I
have had the privilege of serving on numerous boards and
committees, having been appointed from both sides of the aisle.
I have always taken these tasks and responsibilities with the
utmost seriousness and commitment to the challenge at hand. For
the past 8 years, I have served on the board and chair of the
authority which oversees one of the largest metropolitan parks
in America. My service includes overseeing both the financial
management of Georgia's largest tourist attraction and the
maintenance of the environmental integrity of over 3,000 acres
of this largely undeveloped scenic park.
I have also had the opportunity to guide a public regional
banking company through the implementation of the Sarbanes-
Oxley legislation, a rule, statutes and regulations which I
support and applaud.
With the structural changes to TVA created by Congress in
2005, the agency has progressed quickly to embrace a more
efficient and open business structure, all the while remaining
true to its original mission of energy, environment and
economic development. I am proud to offer my experience, both
from the public and private sector, as a lawyer and a banker. I
am confident that my experience will be helpful to the Nation's
largest power producer as I seek to become Georgia's first
representative on the TVA board.
If confirmed, I look forward to offering my time and energy
to this very important and vital component of our economy and
our Nation's responsibility to its citizens. Once again, thank
you for your time and the opportunity to address the Committee.
It is an honor to be with you, and I look forward to any
questions you may have.
[The prepared statement of Mr. Gilliland follows:]
Statement of Thomas C. Gilliland, Nominee for Board Member, Board of
Directors of the Tennessee Valley Authority
Madame Chairman, thank you for your leadership in holding today's
hearing. To you, Senator Inhofe, and to all the Members of the
Committee, I want to thank you for giving me the opportunity to appear
before you in this confirmation process.
I also want to thank Senator Isakson, Senator Chambliss and
Congressman Nathan Deal for their recommendation, and to the President.
my thanks for this nomination. I'm grateful to all of them, and
humbled. for their confidence in me that this nomination memento.
I also want to thank my wife. Candy, who is with me today. I'm
grateful for her encouragement and support in undertaking the
responsibilities and time that will be necessary to serve as a Director
of the Tennessee Valley Authority if I am confirmed.
Our home is in a small community in the mountains of north Georgia
where generations of my family have lived. Until the late 1930's, this
area, as well as much of the Tennessee Valley, was without electricity.
The Tennessee Valley Authority not only brought light, it brought
economic growth, flood control and environmental stewardship to Our
region.
In the late 1930's my father graduated from law school at the
University of Kentucky. His first job was with TVA, handling arid
acquisition for reservoirs and power generating facilities in the
mountains of north Georgia. There he met my mother, so in many ways I
appear before this Committee today because of the Tennessee Valley
Authority.
Although I have never held public office, over the years I have had
the privilege of serving on numerous boards and committees. having been
appointed from both sides of the aisle. 1 have always taken these tasks
and responsibilities with the utmost seriousness and commitment to the
challenge at hand.
For the past eight years, I have served on the board and as Chair
of the authority which oversees one of the largest metropolitan parks
in America. My service includes overseeing both the financial
management of Georgia's largest tourist attraction, and the maintenance
of the environmental integrity of over 3,000 acres of this largely
undeveloped scenic park.
I've also had the opportunity to guide a public regional banking
company through implementation of the Sarbanes-Oxley legislation; a
statute. rules and regulations which I support and applaud.
With the structural changes to TVA created by Congress in 2005, the
agency has progressed quickly to embrace a more efficient and open
business structure, all the while remaining true to its original
mission of energy, the environment and economic development.
I am proud to offer my experience, in both the public and private
sector, as a lawyer and a banker. I am confident that my experience
will be helpful to the nation's largest public power producer as I seek
to become Georgia's first representative on the TVA Board.
If confirmed, I look forward to offering my time and energy to this
very important and vital component of our economy and our nation's
responsibility to it's citizens. Once again, thank you for your time
and the opportunity to address the Committee. It's an honor to be with
you and I look forward to your questions.
______
Responses by Thomas Gilliland to Additional Questions from Senator
Boxer
Question 1. TVA is one of our nation's largest emitters of carbon
dioxide, emitting over 100 million tons annually. As the U.S. Senate
Environment and Public Works Committee (EPW) looks at addressing global
warming, please explain what strategies TVA is implementing to reduce
carbon emissions and what additional policies you would support to
reduce TVA's greenhouse gas emissions.
Response. I am committed to working with my fellow board members,
TVA management and staff to explore ways to reduce CO2
emissions through increased efficiency. As I suggested in the hearing
on October 2, I am eager to learn more about advanced technologies like
Integrated Gasification/Combined Cycle (IGCC), carbon sequestration and
advanced nuclear that may help TVA reduce and avoid future carbon
dioxide emissions. As a longtime resident of the TVA service region I
have a keen interest in enacting policies that result in cleaner air
for the Tennessee Valley.
Question 2. Does TVA have any plans to retire any older inefficient
coal units in the Agency's current business plan? If so, what units
and/or locations are being considered?
Response. I am unaware of any specific plans to retire coal units
at this time. I know that TVA is investing in pollution-control
equipment at their coal plants. I anticipate a full briefing on the
matter if I am confirmed by the United States Senate to the TVA Board.
Question 3. Has TVA looked at fossil fuel electricity with carbon
sequestration technology for the TVA system? If so, what units and/or
locations are being considered?
Response. It is my understanding that TVA is investigating
technologies of the future including Integrated Gasification/Combined
Cycle (IGCC), participating in the Coal Fleet of the Future project,
and supporting additional research on the issue of Global Climate
Change through participation in the Electric Power Research Institute
(EPRI). I am not aware of an evaluation of specific units and locations
at this time.
Question 4. Besides nuclear power what other technologies is TVA
actively pursuing to control carbon emissions?
Response. I am familiar with the TVA Green Power Switch program,
which enables customers to purchase some of their energy from non-
emitting sources such as solar, wind and methane gas generation in the
Valley. Beyond the Green Power Switch program, I am not yet familiar
with all of the efforts TVA is making to control carbon emissions. It
is something I look forward to learning should I become a TVA board
member.
Question 5. Does TVA support a renewable energy standard? If yes:
Please explain how this fits into TVA's plan to reduce carbon
emissions. If no: Why not?
Response. I am not aware of TVA's position on a renewable energy
standard. I do know that in its new 2007 Strategic Plan, TVA recognizes
that renewable energy will play an increasingly important role in TVA's
future generation.
Question 6. A recent TVA funded study by the University of
Tennessee (``Resources and Employment Impact of a Renewable Portfolio
Standard in the Tennessee Valley Authority Region'') indicated
significant job creation in the TVA service area if a renewable energy
standard was enacted. Specially, the study found that under a Federal
RPS requiring 10% by 2020 would produce nearly 45,000 jobs in the TVA
service area. The majority of the requirement could be met by co-firing
biomass at existing TVA coal-fired power plants. Are the members of the
TVA Board aware of this study? Does this study affect TVA's view of a
renewable energy standard? If so how?
Response. I have not yet read the report but will ask for a copy
and briefing from TVA staff, should I be confirmed.
Question 7. TVA has a strong history in doing research on bio-
energy opportunities. What is the current state of your programs
looking at using biomass for power generation, including co-firing at
your existing facilities as the above study identified as an
opportunity.
Response. I am not yet familiar with TVA's bio-energy activities,
but if confirmed will commit to you that I will research the matter and
learn what TVA is doing in this area.
Question 8. TVA has a voluntary program for customers to support
renewable energy called the Green Power Switch. What plans does TVA
have to develop renewable energy other than the voluntary Green Power
Switch program in the near future? Please explain any plans in detail.
Response. It is my understanding that TVA has been successful
signing up residents of the Tennessee Valley with the Green Power
Switch Program and continues its marketing efforts. If confirmed, I
look forward to working with my fellow board members, TVA management
and staff to help develop strategies for utilizing available renewable
energy sources in the Valley.
Question 9. TVA announced a new commitment to energy efficiency in
its most recent strategic plan. Will you share with us the details of
the specific energy efficiency goals in this plan and how they will be
met?
Response. As part of the Strategic Plan developed over the last
year, TVA stated that it ``will strive to be a leader in energy
efficiency improvements and peak demand reduction over the next five
years.'' It also stated in the Strategic Plan that becoming a leader in
energy efficiency will require a cooperative effort between TVA, its
distributors and the end use consumer along with its direct served
customers.
If I am confirmed I will commit to working with TVA staff and our
stakeholders in the Valley on energy efficiency measures to reduce
energy consumption.
Question 10. Many utilities are now viewing energy efficiency as an
important recourse to meet new demand. What are your views on advancing
energy efficiency investments at TVA? Do you view TVA as a leader in
this effort?
Response. As I mentioned in my opening statement on October 2, TVA
has served residents of the Tennessee Valley well for nearly 75 years
by promoting economic development, serving as a steward of the
environment and providing affordable, reliable electricity. If
confirmed, I look forward to working with this committee, TVA
leadership and my colleagues on the Board to ensure that TVA as an
agency of the federal government carries its share of responsibility in
areas such as energy-efficiency and conservation.
Question 11. A recent utility industry collaborative produced a
National Action Plan on Energy Efficiency. It concludes that utilities
with ``best practices'' spend about 1% of their annual revenues on
energy efficiency investments. TVA recently announced a $20 million
dollar annual investment toward energy efficiency, yet TVA's annual
revenues for 2008 are expected to be $9.7 billion dollars. One percent
would exceed $97 million dollars annually. Can you explain this
shortfall? What are your thoughts on increasing TVA's investment?
Response. As a nominee, I have not been privy to TVA's spending
priorities, nor have I had the opportunity to review the National
Action Plan on Energy Efficiency. However, if confirmed by the Senate,
I will commit to participate fully in Board-level discussions and
decisions about energy efficiency investments at TVA.
Senator Boxer. Thank you very much, sir.
I don't have any questions for you, which I am sure you are
greatly relieved to know.
[Laughter.]
Senator Boxer. Mr. Bresland, I know that my staff spoke to
you about the Contra Costa regulations that we have, our
chemical plant safety program there. Have you gone over them?
Are you familiar with them?
Mr. Bresland. Yes, I am, I am very familiar with what
happens in Contra Costa County.
Senator Boxer. What is your feeling about what they do?
They have a very strong community protection plan. I just
wondered how you felt about it.
Mr. Bresland. Contra Costa County is just east of San
Francisco, as you know.
Senator Boxer. Yes.
Mr. Bresland. It probably has the strongest environmental
and chemical process safety program in the United States. In
Contra Costa County, there are 50 chemical plants and oil
refineries, I think 6 or 7 oil refineries, the rest are
chemical plants. They have a very strong program there that is
headed up by Mr. Sawyer, Randy Sawyer. He has five engineers
who work in the program. They do audits of their facilities
every 3 years. It is an excellent program.
Senator Boxer. All right. I think that is important. I have
a number of questions that I would love for you to answer, none
of which are trick questions, they are just pretty
straightforward. But this is such an important position and it
means so much to all of us. We are very hopeful with you taking
the lead on these that we will make some progress.
Mr. Gilliland, I am going to send you, for you to answer in
writing, because it is too complicated, really, asking you what
strategies you believe TVA should be using to reduce its carbon
emissions. But I am very interested, as you know, in that
issue, and look forward to your written response on that.
Because it is a longer issue.
And then I have a question to ask Mr. Shearer from Senator
Lautenberg. In 2002, you were reportedly part of an effort by
the Pentagon to challenge local officials in Alabama to
participate in emergency response exercises, knowing that they
would refuse, so that the Pentagon could send out press
releases shifting blame over the lack of local preparedness for
a potential release from a chemical weapons incinerator.
I am going to place in the record, unless there is any
dissent here, a list of the articles that ran at that time in
the Birmingham News, the first paragraph: ``The Army intends to
embarrass Aniston officials and shift public scorn over the
chemical weapons incinerator away from itself with a strategy
revealed in recent e-mails exchanged at the Pentagon.'' This is
kind of a sorry situation that our military got themselves into
and I wondered if you were part of that plan, what role you
played in it.
[The referenced material follows:]
Mr. Shearer. Madam Chairman, it was indeed a sorry state of
events, and given the opportunity to do that over, that is one
that I would do differently.
Senator Boxer. So you were involved in it?
Mr. Shearer. Yes, ma'am, I was part of the e-mail chain
that was disclosed, that was leaked from the Army to the
Aniston News, which first broke the story. Our intentions in
that instance were quite good, and that was to get Aniston
prepared for the operation of that facility, emergency
management being part of that. Our execution, however, could
have been better.
The situation also involved two Army staffers, one of whom
directly worked for me, the other who was, through a variety of
memoranda of understanding, also worked for us, and they were
adversarial. Unfortunately, our intent didn't get properly
translated to either of them and as a consequence, they engaged
in a rather adversarial e-mail exchange that founded the basis
of what was disclosed to the Aniston newspapers.
But from that experience I have learned, and would in a
similar circumstance endeavor to work far more closely with the
Congressional delegation of the State and also work to ensure
that my staff had a better understanding of what it is that my
boss and I sought to do.
Senator Boxer. Well, let me just simply say that, a lot of
us would like to have do-overs in our life, OK? All of us,
every one of us, there is no one that I know lived a perfect
life or made every decision. But I think the troubling thing
about this, and Senator Lautenberg is the one who brought this
to my attention, is, it goes to the heart of who you are. There
is an e-mail here from you that essentially, it is right here
in the Birmingham News, where you directed this whole thing,
you directed Skelley to issue the challenge.
I just think this is a problem for me. I don't know if
anyone else feels this way. But again, when Senator Shelby says
that this plan was perverse and irresponsible, this isn't a
partisan hit from me at all. I am glad you said you wouldn't do
it again, but the fact that you did it is very concerning to
me. So I just want you to know that is where I am coming from.
Senator Isakson, did you have any questions?
Senator Isakson. Yes, I do, Madam Chair.
Senator Boxer. Please go forward.
Senator Isakson. I wanted to discuss with Tom Gilliland
just for a second two or three points for the record. One of
the concerns of the TVA, back under the old operational model,
which has now changed, and during the 1990s was the tremendous
amount of debt, would you share with the Committee what the
cost of debt is to TVA today versus what it was in that decade?
Mr. Gilliland. Yes, Senator Isakson, I had an opportunity
to look into that. In 1997, 34 percent of the revenue, that is
revenue, generated by TVA went to pay interests costs. This
year, 13 percent of revenue is applied to interest cost. I
think that is a significant improvement.
Senator Isakson. On the question that Senator Boxer is
going to send to you, I would like to just talk to you about it
in this five minutes about renewable energy. When we had the
energy debate, we had a provision on requiring at least 15
percent of energy to be replaced with renewable energy sources
being either wind or solar. We have difficulty in the southeast
with both, we don't have enough wind in particular.
What are our other sources of renewable energy in the
south, other than carbon-based improvements?
Mr. Gilliland. Hydro, improvements to hydro, of course
nuclear. We have 60 percent of our power production at TVA is
fossil fuel, 30 percent is nuclear, 10 percent are alternate
sources. Nuclear is, well, for instance, in August, we reached
record load demands multiple times during the month of August.
Of course, you have to have the nuclear in order to have the
reliability as well, at least in this system, as well as to
meet those peak loads.
The issues relative to carbon, I was pleased to see that
the May 2007 strategic plan for TVA incorporated addressing
global climate issues. I know they are spending a million
dollars a day on carbon emission issues. They have already
spent $5 billion, and those initiatives continue.
Senator Isakson. On the hydro, too, amount to which we can
go from coal to hydro is limited by any number of factors in
impoundment, not the least of which is wetland destruction.
Mr. Gilliland. We are experiencing a 100-year drought right
now. Hydro only represents 5 percent or so of the total
production. An when you don't have the water in the reservoirs,
obviously you don't have the capacity.
Senator Isakson. This next question is going to seem silly
to you, because you and I have already talked about it. But it
is important to the people of Georgia. One of the issues that
caused this whole concern about a lack of representation of the
State of Georgia on the TVA board was the concern that their
voices of those people in those 10 counties in Georgia would
not be heard. I know your answer to this already, but for the
record, will you pledge yourself to be sure that those 10
counties in north Georgia get the representation on the TVA
they deserve, both from the standpoint of their lake levels as
well as the costs and reliability of their energy?
Mr. Gilliland. Yes, I will, for the people of the State of
Georgia as well as the other seven States.
Senator Isakson. Thank you for your willingness to serve,
and thank you both, I am going to give you all a pass, just
like Senator Boxer gave Tom as pass.
Thank you, Madam Chairman.
Senator Boxer. Thank you so much.
So we are at the end of this, so I am going to ask the same
questions, but I will do it one and then two together. Well,
let's see, we will do the TVA first.
Do you agree, if confirmed as a member of the Board of
Directors of the TVA to appear before this Committee or
designated members and other appropriate committees and provide
information subject to appropriate and necessary security
protection with respect to your responsibilities as a member of
the Board of Directors of the Tennessee Valley Authority?
Mr. Gilliland. Yes.
Senator Boxer. Sir, do you agree when asked to give your
personal views, even if those views differ from the
Administration in office at the time?
Mr. Gilliland. Yes.
Senator Boxer. Do you agree to ensure that testimony,
briefings, documents, electronic and other forms of
communication or information are provided to this Committee and
its staff and other appropriate committees in a timely fashion?
Mr. Gilliland. Yes, I do.
Senator Boxer. Do you know of any matters which you may or
may not have disclosed that might place you in any conflict of
interest if you are confirmed as a member of the Board of the
TVA?
Mr. Gilliland. No, I do not.
Senator Boxer. Thank you, sir.
And so the next two, if you could just answer together, do
you agree, if confirmed as chairperson and a member of the
Chemical Safety and Hazard Board to appear before this
Committee or designated members of this Committee and other
appropriate committees, provide information subject to
appropriate and necessary security protection with respect to
your responsibilities as chair and a member of the Chemical
Safety and Hazard Investigation Board?
Mr. Bresland. I do.
Mr. Shearer. I do.
Senator Boxer. OK. Do you agree, when asked, to give your
personal views, even when those views differ from the
Administration in office at the time?
Mr. Shearer. Yes.
Mr. Bresland. Yes.
Senator Boxer. Do you agree to ensure that testimony,
briefings, documents, electronic and other forms of
communication or information are provided to this Committee and
its staff and other appropriate committees in a timely fashion?
Mr. Bresland. Yes.
Mr. Shearer. Yes.
Senator Boxer. Do you know of any matters which you may or
may have not disclosed that might place you in any conflict of
interest if you are confirmed as chair and a member of the
Chemical Safety and Hazard Investigations Board?
Mr. Bresland. No.
Mr. Shearer. No.
Senator Boxer. Thank you very, very much, all of you, for
being here today. The hearing stands adjourned.
[Whereupon, at 12 o'clock p.m., the committee was
adjourned.]
[Additional statements submitted for the record follow.]
Statement of Hon. Joseph Lieberman, U.S. Senator from the
State of Connecticut
Thank you, Madame Chairman. We have a number of nominations before
the Committee today. I would like to speak briefly about one of those--
the nomination of Mr. Bresland as Chairman of the Chemical Safety
Board.
As you know the Chemical Safety Board is an independent Federal
agency that is tasked with the important role of investigating
industrial chemical accidents. Through their in-depth analysis they can
locate deficiencies in the management system, engineering, equipment
failure or human error that was the cause of an accident. These root
cause investigations allow the Chemical Safety Board to make corrective
recommendations to the plants involved in the accidents, to the
industry at-large, and to regulatory agencies such as the Occupational
Safety and Health Administration and the Environmental Protection
Agency.
The Chemical Safety Board's staff is composed of specialists in
chemical and mechanical engineering, as well as other industry
specialists. Mr. Bresland's extensive experience in the chemical
industry, specifically with Honeywell International, makes him a highly
qualified and appropriate selection for membership on the Chemical
Safety Board. I have no doubt of his commitment or ability to fulfill
the missions of the Chemical Safety Board, ultimately improving
chemical plant process safety, and in turn saving lives and protecting
the environment.
Nonetheless I have some serious concerns about how well the
Chemical Safety Board is working with state and local officials during
its investigations. In a well-publicized incident in Danvers,
Massachusetts last year, the CSB wound up in a full-blown clash with
state and local responders. If Mr. Bresland is confirmed as Chairman of
the Board he will be establishing the tone of its interactions with
other agencies and with state and local officials. I hope to hear from
Mr. Bresland about how he intends to improve the cooperation and
coordination of the Chemical Safety Board with the state and local
officials and first responders. We all have an interest in seeing that
investigations of incidents at chemical facilities are thorough and
professional and that any findings made are complete and accurate to
help us prevent similar incidents in the future. Regardless of the
cause of a chemical incident--whether from terrorism, natural disaster,
or accident--it is essential that all levels of government work hand in
hand in the response and any investigation.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Responses by Susan Richardson Williams to Additional Questions
from Senator Boxer
Question 1. TVA is one of our nation's largest emitters of carbon
dioxide, emitting over 100 million tons annually. As the U.S. Senate
Environment and Public Works Committee (EPW) looks at addressing global
warming, please explain what strategies TVA is implementing to reduce
carbon emissions and what additional policies you would support to
reduce TVA's greenhouse gas emissions.
Response. As a long-time resident of Tennessee, a current TVA board
member and a grandmother of two, I have a tremendous interest in seeing
that the air is cleaner for the next generation of citizens in the
Tennessee Valley. The new nine-member, part-time board of TVA serves to
function as a high-level policy setting entity, and in that capacity
the board strives to articulate strategies that guide TVA management
and staff in their day to day business operations. I can assure you
that the current board is committed to implementing strategies to
reduce greenhouse gas emissions.
In 1995, TVA was the first utility to partner with the Department
of Energy to participate in its newly created program, Climate
Challenge. As a result of this program, TVA has reduced, sequestered or
avoided more than 305 million tons of CO2.
TVA has also been a participant in the President's Climate VISION
program, which calls on the electric utility sector to help meet a
national goal of reducing the greenhouse gas intensity of the U.S.
economy by 18% from 2002-2012.
Going forward, the TVA board has expressed interest in pursuing
voluntary actions in two pivotal areas to reduce carbon emissions:
notably expanding the diversity in our electric generation mix with
safe, clean, zero-emission power; and reducing emissions through
increased energy efficiency.
In June, TVA restarted Unit 1 at Browns Ferry Nuclear Plant in
northern Alabama, the first U.S. nuclear unit to be brought on-line in
the 21st century. Browns Ferry Unit 1 is expected to initially provide
additional generating capacity of approximately 1,150 megawatts and
eventually will produce 1,280 megawatts.
In addition, the board recently approved the completion of Unit 2
at the Watts Bar Nuclear Plant in Spring City, Tennessee. The operation
of Watts Bar Unit 2 would add another 1,170 megawatts of non-
CO2 emitting generation to the TVA system.
As we increase capacity, the board is mindful of the need to
increase energy efficiency and conservation. TVA has begun this effort
at home, so to speak, in TVA buildings with the use of energy efficient
lighting, temperature set-backs, high efficiency motors, occupancy
sensors, heat pumps, passive solar heating and automatically turning
off lights in office spaces.
I assure you that I will remain a strong voice for these issues
should I be confirmed.
Question 2. Does TVA have any plans to retire any older inefficient
coal units in the Agency's current business plan? If so, what units
and/or locations are being considered?
Response. Existing coal assets play a large and important role in
meeting the energy needs of the Tennessee Valley, and in supporting
energy needs and energy independence for the entire United States.
TVA's long-term capacity plan includes a ``placeholder'' for retirement
of one of the older, less efficient fossil plants in the post 2020
timeframe.
The board has said before that it is committed to retiring higher
emitting fossil plants if energy efficiency efforts result in lower
demand than currently forecasted. If demand continues to grow,
retirements of existing generating assets would have to be replaced by
investments in new generating assets to meet the growing needs of the
Valley.
Next year, TVA will celebrate its 75th anniversary, a significant
milestone. As a board member, I will continue to encourage adding clean
energy sources to the generation portfolio and encourage energy
efficiency, all the while preparing for the continued demands on our
system with projected growth of two percent each year for the
foreseeable future.
Question 3. Has TVA looked at fossil fuel electricity with carbon
sequestration technology for the TVA system? If so, what units and/or
locations are being considered?
Response. TVA is a member of the Southeast Regional Carbon
Sequestration Partnership, one of seven teams participating in this
Department of Energy-sponsored program. TVA also supports the
sequestering of greenhouse gases through the UtiliTree and PowerTree
Carbon Companies, which are developing reforestation projects in the
Lower Mississippi River Valley and elsewhere.
Additionally, TVA participates in the Coal Combustion Products
Partnership program. This program is a cooperative effort that promotes
the beneficial use of coal combustion products to reduce greenhouse
gases and the amount of material sent to disposal.
I will continue to encourage TVA management and staff to make
decisions that give strong consideration to fuel mix and generation
assets that are low or zero carbon emitting resources, continue to
invest in research and development on low carbon generation options,
carbon reduction, carbon capture and sequestration technologies.
Question 4. Besides nuclear power what other technologies is TVA
actively pursuing to control carbon emissions?
Response. TVA is exploring the possibilities of reducing carbon
intensity by increasing renewable generating capacity. Solar, wind,
incremental hydro, biomass, and landfill gas are among the renewable
sources that would be considered. Additionally, advanced clean and
renewable technologies, such as low-head hydro, heat recovery systems,
and end-user generation offsets will also be considered. TVA also
continues to monitor the status of emerging technologies such as
hydrogen, fuel cells, micro-turbines, and energy storage technologies.
TVA participates in organizations such as the Coal Utilization
Research Council (CURC), EPRI's Coal Fleet for Tomorrow program, and
the Gasification Technologies Council (GTC). These organizations
promote the research and development of clean coal technology.
Question 5. Does TVA support a renewable energy standard? If yes:
Please explain how this fits into TVA's plan to reduce carbon
emissions. If no: Why not?
Response. In the 2007 Strategic Plan, the TVA board recognizes that
renewable energy will play an increasingly important role in TVA's
future generation. TVA staff is currently developing a long term
strategy to reduce the carbon intensity of the TVA generation fleet.
This includes evaluating potential Valley resources, technologies and
opportunities that will help us and our power distributors meet
potential RES requirements.
Question 6. A recent TVA funded study by the University of
Tennessee (``Resources and Employment Impact of a Renewable Portfolio
Standard in the Tennessee Valley Authority Region'') indicated
significant job creation in the TVA service area if a renewable energy
standard was enacted. Specially, the study found that under a Federal
RPS requiring 10% by 2020 would produce nearly 45,000 jobs in the TVA
service area. The majority of the requirement could be met by co-firing
biomass at existing TVA coal-fired power plants. Are the members of the
TVA Board aware of this study? Does this study affect TVA's view of a
renewable energy standard? If so how?
Response. I have not been briefed on the report. However, I look
forward to hearing the results of the study and how it may impact TVA's
long term strategy addressing renewable assets in the Valley.
Question 7. TVA has a strong history in doing research on bio-
energy opportunities. What is the current state of your programs
looking at using biomass for power generation, including co-firing at
your existing facilities as the above study identified as an
opportunity.
Response. TVA is currently conducting commercial-scale, low-level
biomass co-firing at Colbert Fossil Plant in North Alabama. Co-firing
at Colbert has provided TVA with benefits in the area of fuel diversity
and fuel cost management. We are evaluating the feasibility of
expanding wood waste co-firing at other TVA fossil plants.
In addition to the wood waste co-firing, TVA is co-firing biogas
methane at the Allen Fossil Plant located in Memphis, Tennessee. The
biogas is a product of wastewater treatment anaerobic digestion at the
municipal treatment facility for the City of Memphis. The generation
from this installation is part of TVA's Green Power Switch generation
mix.
We are also involved in advanced bio-energy research including a
joint biomass demonstration project with EPRI and Southern Company and
an animal waste project where the resulting biogas will be utilized to
fuel a Stirling engine for power generation.
Question 8. TVA has a voluntary program for customers to support
renewable energy called the Green Power Switch. What plans does TVA
have to develop renewable energy other than the voluntary Green Power
Switch program in the near future? Please explain any plans in detail.
Response. The Green Power Switch program has helped us learn more
about the potential for solar, wind and methane gas generation in the
Valley. TVA's ongoing hydro modernization efforts and biomass co-firing
projects have helped position TVA to optimize the use of the Valley's
available renewable sources.
The TVA Strategic Plan promotes the increase in renewable
generation beyond the Green Power Switch. TVA staff is currently
developing a long term strategy to reduce the carbon intensity of the
TVA generation fleet.
Question 9. TVA announced a new commitment to energy efficiency in
its most recent strategic plan. Will you share with us the details of
the specific energy efficiency goals in this plan and how they will be
met?
Response. As part of the Strategic Plan which we developed over the
last year, we stated that ``TVA will strive to be a leader in energy
efficiency improvements and peak demand reduction over the next five
years.'' We also stated in the Strategic Plan that becoming a leader in
energy efficiency will require a cooperative effort between TVA, its
distributors and end-use consumers, along with direct-serve customers.
If I am re-appointed I will work with the TVA staff and our
stakeholders in the Valley to develop a detailed five year plan that
has a goal to reduce energy consumption by approximately 1,200 MW by
the year 2013. This plan will also explore additional reductions in the
years beyond 2013. In addition, we expect to reduce energy consumption
by 64 MW in FY08 by enhancing existing energy efficiency programs and
developing new pilot programs.
Question 10. Many utilities are now viewing energy efficiency as an
important recourse to meet new demand. What are your views on advancing
energy efficiency investments at TVA? Do you view TVA as a leader in
this effort?
Response. TVA's load is expected to grow approximately two percent
each year over the next 10 years. That equates to about 750 MW per
year. In order to meet that type of demand growth TVA will not only
need to add additional generation but will have to aggressively
develop, promote, and implement programs to slow that growth. Those
programs will require a significant investment in resources to achieve.
The plan that TVA is currently developing for energy efficiency and
demand response will outline the resources required to meet our goals.
Over the years TVA has had a number of programs designed to improve
energy efficiency and reduce load growth. With energy demand in the
Valley at an all-time high, the board has made a renewed commitment to
position TVA as a leader in energy efficiency and demand reduction.
Addressing energy efficiency is also a personal priority of mine.
Question 11. A recent utility industry collaborative produced a
National Action Plan on Energy Efficiency. It concludes that utilities
with ``best practices'' spend about 1% of their annual revenues on
energy efficiency investments. TVA recently announced a $20 million
dollar annual investment toward energy efficiency, yet TVA's annual
revenues for 2008 are expected to be $9.7 billion dollars. One percent
would exceed $97 million dollars annually. Can you explain this
shortfall? What are your thoughts on increasing TVA's investment?
Response. The $22 million is not intended to reflect TVA's long
term commitment to reduce load growth. For FY2008 the energy efficiency
budget has two objectives. The first is to work with our stakeholders
to develop a 5-year plan with a reduction goal of about 1,200 MW over
that time period. The second objective is to meet our current business
plan goal of reducing demand by 64 MW through enhancement of TVA's
existing efficiency programs and developing new pilot programs.
TVA is a member of the National Action Plan for Energy Efficiency
with the participation of our Vice President for Energy Efficiency and
Demand Response on its Leadership Group.
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Responses by William H. Graves to Additional Questions from
Senator Boxer
Question 1. TVA is one of our nation's largest emitters of carbon
dioxide, emitting over 100 million tons annually. As the U.S. Senate
Environment and Public Works Committee (EPW) looks at addressing global
warming, please explain what strategies TVA is implementing to reduce
carbon emissions and what additional policies you would support to
reduce TVA's greenhouse gas emissions.
Response. As a resident of Memphis, Tennessee and a current TVA
board member, I have a tremendous interest in seeing that the air is
cleaner for the next generation of citizens in the Tennessee Valley.
The new nine-member, part-time board of TVA serves to function as a
high-level policy setting entity, and in that capacity the board
strives to articulate strategies that guide TVA management and staff in
their day to day business operations. I can assure you that the current
board is committed to implementing strategies to reduce greenhouse gas
emissions.
In 1995, TVA was the first utility to partner with the Department
of Energy to participate in its newly created program, Climate
Challenge. As a result of this program, TVA has reduced, sequestered or
avoided more than 305 million tons of CO2.
TVA has also been a participant in the President's Climate VISION
program, which calls on the electric utility sector to help meet a
national goal of reducing the greenhouse gas intensity of the U.S.
economy by 18% from 2002-2012.
Going forward, the TVA board has expressed interest in pursuing
voluntary actions in two pivotal areas to reduce carbon emissions:
notably expanding the diversity in our electric generation mix with
safe, clean, zero-emission power; and reducing emissions through
increased energy efficiency.
In June, TVA restarted Unit 1 at Browns Ferry Nuclear Plant in
northern Alabama, the first U.S. nuclear unit to be brought on-line in
the 21st century. Browns Ferry Unit 1 is expected to initially provide
additional generating capacity of approximately 1,150 megawatts and
eventually will produce 1,280 megawatts.
In addition, the board recently approved the completion of Unit 2
at the Watts Bar Nuclear Plant in Spring City, Tennessee. The operation
of Watts Bar Unit 2 would add another 1,170 megawatts of non-
CO2 emitting generation to the TVA system.
As we increase capacity, the board is mindful of the need to
increase energy efficiency and conservation. TVA has begun this effort
at home, so to speak, in TVA buildings with the use of energy efficient
lighting, temperature set-backs, high efficiency motors, occupancy
sensors, heat pumps, passive solar heating and automatically turning
off lights in office spaces.
I assure you that I will remain a strong voice for these issues
should I be confirmed.
Question 2. Does TVA have any plans to retire any older inefficient
coal units in the Agency's current business plan? If so, what units
and/or locations are being considered?
Response. Existing coal assets play a large and important role in
meeting the energy needs of the Tennessee Valley, and in supporting
energy needs and energy independence for the entire United States.
TVA's long-term capacity plan includes a ``placeholder'' for retirement
of one of the older, less efficient fossil plants in the post 2020
timeframe.
The board has said before that it is committed to retiring higher
emitting fossil plants if energy efficiency efforts result in lower
demand than currently forecasted. If demand continues to grow,
retirements of existing generating assets would have to be replaced by
investments in new generating assets to meet the growing needs of the
Valley.
Next year, TVA will celebrate its 75th anniversary, a significant
milestone. As a board member, I will continue to encourage adding clean
energy sources to the generation portfolio and encourage energy
efficiency, all the while preparing for the continued demands on our
system with projected growth of two percent each year for the
foreseeable future.
Question 3. Has TVA looked at fossil fuel electricity with carbon
sequestration technology for the TVA system? If so, what units and/or
locations are being considered?
Response. TVA is a member of the Southeast Regional Carbon
Sequestration Partnership, one of seven teams participating in this
Department of Energy-sponsored program. TVA also supports the
sequestering of greenhouse gases through the UtiliTree and PowerTree
Carbon Companies, which are developing reforestation projects in the
Lower Mississippi River Valley and elsewhere.
Additionally, TVA participates in the Coal Combustion Products
Partnership program. This program is a cooperative effort that promotes
the beneficial use of coal combustion products to reduce greenhouse
gases and the amount of material sent to disposal.
I will continue to encourage TVA management and staff to make
decisions that give strong consideration to fuel mix and generation
assets that are low or zero carbon emitting resources, continue to
invest in research and development on low carbon generation options,
carbon reduction, carbon capture and sequestration technologies.
Question 4. Besides nuclear power what other technologies is TVA
actively pursuing to control carbon emissions?
Response. TVA is exploring the possibilities of reducing carbon
intensity by increasing renewable generating capacity. Solar, wind,
incremental hydro, biomass, and landfill gas are among the renewable
sources that would be considered. Additionally, advanced clean and
renewable technologies, such as low-head hydro, heat recovery systems,
and end-user generation offsets will also be considered. TVA also
continues to monitor the status of emerging technologies such as
hydrogen, fuel cells, micro-turbines, and energy storage technologies.
TVA participates in organizations such as the Coal Utilization
Research Council (CURC), EPRI's Coal Fleet for Tomorrow program, and
the Gasification Technologies Council (GTC). These organizations
promote the research and development of clean coal technology.
Question 5. Does TVA support a renewable energy standard? If yes:
Please explain how this fits into TVA's plan to reduce carbon
emissions. If no: Why not?
Response. In the 2007 Strategic Plan, the TVA board recognizes that
renewable energy will play an increasingly important role in TVA's
future generation. TVA staff is currently developing a long term
strategy to reduce the carbon intensity of the TVA generation fleet.
This includes evaluating potential Valley resources, technologies and
opportunities that will help us and our power distributors meet
potential RES requirements.
Question 6. A recent TVA funded study by the University of
Tennessee (``Resources and Employment Impact of a Renewable Portfolio
Standard in the Tennessee Valley Authority Region'') indicated
significant job creation in the TVA service area if a renewable energy
standard was enacted. Specially, the study found that under a Federal
RPS requiring 10% by 2020 would produce nearly 45,000 jobs in the TVA
service area. The majority of the requirement could be met by co-firing
biomass at existing TVA coal-fired power plants. Are the members of the
TVA Board aware of this study? Does this study affect TVA's view of a
renewable energy standard? If so how?
Response. I have not been briefed on the report. However, I look
forward to hearing the results of the study and how it may impact TVA's
long term strategy addressing renewable assets in the Valley.
Question 7. TVA has a strong history in doing research on bio-
energy opportunities. What is the current state of your programs
looking at using biomass for power generation, including co-firing at
your existing facilities as the above study identified as an
opportunity.
Response. TVA is currently conducting commercial-scale, low-level
biomass co-firing at Colbert Fossil Plant in North Alabama. Co-firing
at Colbert has provided TVA with benefits in the area of fuel diversity
and fuel cost management. We are evaluating the feasibility of
expanding wood waste co-firing at other TVA fossil plants.
In addition to the wood waste co-firing, TVA is co-firing biogas
methane at the Allen Fossil Plant located in Memphis, Tennessee. The
biogas is a product of wastewater treatment anaerobic digestion at the
municipal treatment facility for the City of Memphis. The generation
from this installation is part of TVA's Green Power Switch generation
mix.
We are also involved in advanced bio-energy research including a
joint biomass demonstration project with EPRI and Southern Company and
an animal waste project where the resulting biogas will be utilized to
fuel a Stirling engine for power generation.
Question 8. TVA has a voluntary program for customers to support
renewable energy called the Green Power Switch. What plans does TVA
have to develop renewable energy other than the voluntary Green Power
Switch program in the near future? Please explain any plans in detail.
Response. The Green Power Switch program has helped us learn more
about the potential for solar, wind and methane gas generation in the
Valley. TVA's ongoing hydro modernization efforts and biomass co-firing
projects have helped position TVA to optimize the use of the Valley's
available renewable sources. The TVA Strategic Plan promotes the
increase in renewable generation beyond the Green Power Switch. TVA
staff is currently developing a long term strategy to reduce the carbon
intensity of the TVA generation fleet.
Question 9. TVA announced a new commitment to energy efficiency in
its most recent strategic plan. Will you share with us the details of
the specific energy efficiency goals in this plan and how they will be
met?
Response. As part of the Strategic Plan which we developed over the
last year, we stated that ``TVA will strive to be a leader in energy
efficiency improvements and peak demand reduction over the next five
years.'' We also stated in the Strategic Plan that becoming a leader in
energy efficiency will require a cooperative effort between TVA, its
distributors and end-use consumers, along with direct-serve customers.
If I am re-appointed I will work with the TVA staff and our
stakeholders in the Valley to develop a detailed five year plan that
has a goal to reduce energy consumption by approximately 1,200 MW by
the year 2013. This plan will also explore additional reductions in the
years beyond 2013. In addition, we expect to reduce energy consumption
by 64 MW in FY08 by enhancing existing energy efficiency programs and
developing new pilot programs.
Question 10. Many utilities are now viewing energy efficiency as an
important recourse to meet new demand. What are your views on advancing
energy efficiency investments at TVA? Do you view TVA as a leader in
this effort?
Response. TVA's load is expected to grow approximately two percent
each year over the next 10 years. That equates to about 750 MW per
year. In order to meet that type of demand growth TVA will not only
need to add additional generation but will have to aggressively
develop, promote, and implement programs to slow that growth. Those
programs will require a significant investment in resources to achieve.
The plan that TVA is currently developing for energy efficiency and
demand response will outline the resources required to meet our goals.
Over the years TVA has had a number of programs designed to improve
energy efficiency and reduce load growth. With energy demand in the
Valley at an all-time high, the board has made a renewed commitment to
position TVA as a leader in energy efficiency and demand reduction.
Question 11. A recent utility industry collaborative produced a
National Action Plan on Energy Efficiency. It concludes that utilities
with ``best practices'' spend about 1% of their annual revenues on
energy efficiency investments. TVA recently announced a $20 million
dollar annual investment toward energy efficiency, yet TVA's annual
revenues for 2008 are expected to be $9.7 billion dollars. One percent
would exceed $97 million dollars annually. Can you explain this
shortfall? What are your thoughts on increasing TVA's investment?
Response. The $22 million is not intended to reflect TVA's long
term commitment to reduce load growth. For FY2008 the energy efficiency
budget has two objectives. The first is to work with our stakeholders
to develop a 5-year plan with a reduction goal of about 1,200 MW over
that time period. The second objective is to meet our current business
plan goal of reducing demand by 64 MW through enhancement of TVA's
existing efficiency programs and developing new pilot programs.
TVA is a member of the National Action Plan for Energy Efficiency
with the participation of our Vice President for Energy Efficiency and
Demand Response on its Leadership Group.
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