TESTIMONY
OF U.S. REPRESENTATIVE JERROLD NADLER (D-NY)
Submitted
to
The Senate
Committee on Environment and Public Works
June 25,
2002
Thank you,
Chairman Jeffords. I would like to
thank you and the rest of the committee for holding this hearing today, and for
inviting me to testify, regarding the EPA Hazardous Waste Ombudsman, and in
particular, the role of the Ombudsman in investigating the response of the EPA
to the September 11th terrorist attack in New York. My colleague, Senator Clinton, has been an
outspoken advocate and knows all too well the problems citizens in New York
have been encountering over the past nine months. Thank you, Senator Clinton
for arranging for the Field Hearing in New York back in February, and thank you
Chairman Jeffords, for the committee=s continued oversight of EPA by
examining this issue today.
As the
Congressman representing Ground Zero, I thank you for the opportunity to share
the very positive experience of my constituents with the EPA Hazardous Waste
Ombudsman during the clean up of the World Trade Center. Fortunately, for the majority of us in
Congress, we have not needed to know about the EPA Ombudsman. Those of us who have had the need have
similar stories to share; on the one hand, an agency that seems to ignore the
community=s concerns
and on the other an Ombudsman willing to listen and investigate complaints
about agency neglect. Ultimately, in a
vast majority of the EPA Ombudsman cases, the transparent Ombudsman process has
helped the Administrator, or regional officials, take proper action to resolve
the disputes, resulting in greater protection from radioactive and other
hazardous waste threats. Both Democrats
and Republicans alike have utilized the EPA Ombudsman to help restore trust in
government where it had previously been shaken.
In 1972,
Justice Douglas identified the problem that so often plagues much of the
Federal government:
AThe federal
agencies of which I speak are not venal or corrupt. But they are notoriously under the control of powerful interests
who manipulate them through advisory committees, or friendly working relations,
or who have that natural affinity with the agency which in time develops
between the regulator and the regulated.@
(Sierra
Club v. Morton, 92 U.S. 1361, 1371 (1972)).
This quote
by Justice Douglas is as relevant today as it was thirty years ago. Indeed, this is why the EPA Ombudsman was
created by Congress in 1984 when then-Congresswoman Barbara Mikulski faced an
unresponsive Environmental Protection Agency.
As the numerous cases that were in progress by Ombudsman Martin
indicate, the need for an independent EPA Ombudsman is just as critical today
as when the office was first created.
Today, I am
here to share first-hand knowledge of events that transpired in New York
following September 11th. The World
Trade Center case highlights how imperative it is that there be an independent
and effective Ombudsman at EPA.
Immediately
following September 11th, I formed the Ground Zero Elected Officials
Task Force, of which Senator Clinton is a member, to coordinate the efforts of
all the government representatives from the area. The main goal of the Task Force is to assess the needs of the
community in Lower Manhattan, and to ensure that those needs are addressed by
the appropriate government agencies.
One area that clearly was not addressed was the presence of hazardous
waste in people=s homes,
schools and businesses. In the days
following the attack, the Task Force heard countless complaints from citizens
who suffered from adverse health effects, and/or lacked the resources necessary
to test and clean their apartments and buildings properly. When EPA was presented with such
information, the agency either maintained that everything was safe, or claimed
that the City of New York was in charge of indoor environments and that
EPA had no authority for indoor
environments. The agency maintained this position even after being presented
with independent test results, conducted by long-time EPA contractors, which
showed elevated levels of hazardous materials inside downtown apartments.
This
situation made it very difficult to quickly and effectively address the
mounting casework from constituents who literally had nowhere to go to get
hazardous waste out of their homes. Citizens were left to fend for themselves,
often ended up in court proceedings against their landlords and building
owners, and expended vast resources on a cleanup downtown that was not
conducted adequately or systematically, but rather on an ad-hoc basis.
After four
months of this untenable situation, I asked the EPA National Hazardous Waste
Ombudsman, Robert Martin, and his Chief Investigator, Hugh Kaufman, to
investigate. Their involvement produced
a sea change in the relationship of my office, as well as of local residents,
with EPA. My position has always been
that EPA should use its existing authority to take any and all actions
necessary to find out where hazardous materials went following the collapse of
the World Trade Center, and to remediate contaminated spaces, and that New York
should not be treated differently than other parts of the country where the EPA
has engaged in response activities.
Ombudsman Martin and Mr. Kaufman were able to tell us what the EPA
should have done, could have done, and has done at other hazardous waste sites
around the country. But most
importantly, the Ombudsman process provided a forum to communicate with my
constituents, listen to their complaints and concerns, issue requests for the
production of documents and interrogatories, hold public hearings, bring in
experts from around the country to help the citizens understand the full
magnitude of the issues, make recommendations for corrective action, and truly
get to the bottom of what EPA did and did not do.
The key to
all of this is that it was a public and transparent process. We held two eleven-hour hearings that were
open to the public, documented with a court reporter, the transcripts of which
are available to anyone. We heard from
residents, workers, business owners, city and state elected officials,
firefighters, police officers, parents, and the NYC Board of Education. We
would have liked to hear from the government agencies, in particular EPA, but
they declined our invitation to participate.
Except for
the Ombudsman, the EPA has yet to engage in a public and transparent process
regarding the cleanup of the World Trade Center. If anything, it has done just the opposite. Questions have gone unanswered, information
was obtained only through FOIA, if at all, and trying to get the agency to act
has been a lengthy, arduous, and often unsuccessful process. The Ombudsman process was essential to
address citizen complaints, and focus public pressure on the agency to resolve
those complaints.
In the four
months from September 11th to January, the EPA maintained that
everything was safe, directed people to the city government for relief (a
government which offered no relief to people other than to tell them to clean
up asbestos-laden dust with a wet mop and wet rag), and ultimately remained
unresponsive to citizens. In the four
months from January to May, the time of the Ombudsman process, EPA reversed its
policy and agreed to initiate remediation inside people=s
homes. Of course, there were many
factors that contributed to this policy shift, but I do not believe it would
have happened, or happened so quickly, without the Ombudsman process, and the
expertise and hard work of Mr. Martin, his Chief Investigator Hugh Kaufman, and
the people who worked with them to use the Ombudsman process so effectively.
The EPA is
finally beginning a cleanup plan, largely because of pressure generated by the
Ombudsman. Unfortunately, there is now
no real Ombudsman to keep a watchful eye on the agency. This is disconcerting because the EPA cleanup
plan is woefully inadequate. For
example, the EPA plans to clean apartments only on request. This ignores the threat of cross- and
recontamination from uncleaned apartments and from building HVAC systems. The EPA plan provides for testing only for
asbestos in the air and does not plan to assess dust or hard surfaces that are
also pathways of exposure. Nor will the
agency test for any of the other contaminants that were present in World Trade
Center debris such as lead, mercury, dioxin and fine particulate matter. The cleanup plan is available only south of
an arbitrary boundary at Canal Street, cutting off other areas covered by the
debris cloud, including parts of Brooklyn, Chinatown and the Lower East Side. Besides not dealing with many potentially
contaminated areas, this presents an environmental justice problem. The workers will not be wearing protective
gear, which would seem to be a clear violation of OSHA regulations. The EPA has developed this plan without
public comment, and has not established a Citizens Advisory Group or held
public meetings. It has not even
established an Administrative Record accessible to the public.
Quite
frankly, the EPA has provided no evidence that the cleanup plan for World Trade
Center debris complies with applicable laws and regulations, such as the
National Contingency Plan and OSHA regulations, and there is no guarantee that
EPA will act in accordance with existing laws, policies and procedures. The agency must be forced into a public and
transparent process. The people of New
York deserve and need an experienced, strong and independent Hazardous Waste
Ombudsman at EPA now more than ever.
Unfortunately,
what has happened to the Ombudsman is just the opposite. By placing the
Ombudsman in the Office of Inspector General, the position has been stripped of
its independence, transparency and effectiveness. In July 2001, the House Commerce Committee requested that the GAO
investigate EPA management=s efforts to interfere with the EPA
Ombudsman=s ability
to perform his job. Two critical
recommendations were made by the GAO. First, the GAO recommended that EPA
should provide the Ombudsman with a separate budget and, subject to applicable
Civil Service Requirements, the authority to hire, fire and supervise his own
staff. Second, the GAO recommended that the EPA Ombudsman be given more
structural independence. By moving the
Ombudsman to the Office of Inspector General, and stripping away his position
description, the EPA has done exactly the opposite. The necessary procedures that legally must be followed in
operating an Inspector General=s office are inconsistent with the
procedures necessary for an independent, transparent Ombudsman function. For example, employee protection provisions
and openness of operation must be very different in an Inspector General=s office
because it is part of a law enforcement function, whereas an Ombudsman must be
more open to the public and, at times, must be a public advocate.
The EPA
Ombudsman is crippled as long as it remains under the control of the Inspector
General. Without independence to
control his casework or his resources, an Ombudsman is one in name only. The situation became so untenable for Robert
Martin that he resigned in protest when the Agency opted to house the Ombudsman
under the Inspector General=s office, change the locks on his
doors and remove all his files without his approval while he was away on
EPA-related travel.
Recent
events require that we institute an independent, fully funded EPA Ombudsman
Office to receive, investigate and resolve complaints. Perhaps the best way is to make the
Ombudsman an arm of Congress, but wherever an Ombudsman is placed, the office
must have control of its resources, staff and cases. The Ombudsman must be able to communicate with the public and
must be able to act free from interference by outside parties or from within
the agency itself. Wherever an
Ombudsman is ultimately placed, it is clear that the Office of Inspector
General is not appropriate.
I sit here
next to my Republican colleague from Colorado, having experienced many of the
same problems with the EPA: unresponsiveness, neglect and lack of substantive
public involvement. The WTC is a unique
case in the order of its magnitude and precedent, but not with respect to the
growing need for a mechanism to hold agencies accountable and ultimately
resolve citizens=
complaints. And dare I say, the World Trade Center may not be the only case of
its kind should future terrorist attacks occur.
An
independent EPA Ombudsman with the necessary resources and staff can provide an
antidote to the malaise that we all know sometimes befalls Administrative
Agencies. This is nothing new to the
United States or to democracies in general.
In fact, establishing independent ombudsmen is good government. The federal government has decades of
experience in establishing strong and independent Ombudsmen. The IRS and HHS have Ombudsmen to address
citizen complaints regarding taxes and long-term care respectively. Victims of a terrorist attack, and those
living with the threat of hazardous waste, deserve at least the same
protection.