Written Testimony of Susan Shortz,

Citizen of Throop, Pa., President of HELP (Halt Environmental Lead Pollution) and member of the Citizen Review Committee for the Marjol Site

For the Senate Environment and Public Works Committee Hearing

Regarding S.606, To provide additional authority to the Office of Ombudsman of the Environmental Protection

June 25, 2002

The Borough of Throop is a small residential community with a population of about 4,100. The Marjol Site is a former lead-acid battery recycling facility located in the Borough. The 43.9-acre Site is owned by Gould Electronics, Inc. There are approximately 65 residential homes within 500 feet of the Site boundary and 25 of those homes are within 50 feet of the Site. The Lackawanna River borders the Site to the West. Over 500,000 cubic yards of battery casings are stockpiled and buried on this site. There are PCB’s, PAH’s, antimony, arsenic, cadmium and other carcinogens buried on this site. Lead has been measured at levels as high as 250,000 parts per million in the soil. In addition, a large volume of soil off-site became contaminated with lead from Site operations, fugitive dust emissions, and stormwater runoff. This area is undermined from previous anthracite deep coal mining. Our county is the site of numerous mine fires and mine subsidence occurrences over the years and some are still ongoing. In reality it is an illegal, toxic, hazardous waste dump, in the middle of small town, without benefit of permits or regulatory controls such as liner, or leachate collection systems.

Several State and Federal site assessments were initiated between 1967 and 1987 because of elevated airborne emissions and high soil lead concentrations in the neighborhood. In 1987 USEPA’s Technical Assistance Team collected soil samples from on-site and off-site areas. In response to elevated lead concentrations on-site and off-site in residential areas, the USEPA issued the CERCLA Order on April 6, 1988. Although the EPA assured us there were only a few homes contaminated, and they would be out of our lives in two years, this order resulted in the residential cleanup of 111 homes. The families and community endured soil excavation, tree and shrub removal, and interior cleaning and carpet removal. Although we later found out, through the Ombudsman’s investigation, that on environmental threat alone we qualified for Superfund cleanup on the NPL listing, EPA did not list the site on the National Priority List. On June 11, 1990 a RCRA Administrative Order of Consent was signed between Gould and the EPA. For the next ten years, we attended meetings, watched timelines come and go. And over and over the EPA continued to say that our site would be cleaned up in two years. Then finally in 2000 we got a glimpse of EPA’s statement of basis (cleanup order). We were very disappointed that only a portion of the hazardous waste would be removed, and most of the hazardous waste would remain on site, covered only by a thin cap. The citizens of our small community had been fighting to get our site fully cleaned up in a manner that would protect the health and welfare of our people imputably. Gould, the owner of the site, has stated since the 80’s that they will only agree to cap the hazardous waste – not to clean it up. Although the Borough of Throop had spent almost $1.5 million to prove to EPA that a “cap” is not appropriate, EPA has refused to listen. EPA has repeatedly bowed to Gould’s “demands”, has deliberately withheld or covered up information agreed to with Gould, and mislead us. When we heard about the National Ombudsman, Robert J. Martin’s involvement in the Tarpon Springs, Florida Site, we went to Senators Arlen Specter and Rick Santorum and asked for their assistance to get National Ombudsman Martin to review our case. Mr. Martin’s presence in Throop, along with Chief Investigator Hugh Kaufman marked the first time our concerns were listened to and acted upon.

The first Ombudsman hearing took place in August 2000. Following that hearing, interrogatories were sent. The results were amazing. We found out there were over 240 potentially responsible parties, including the Federal Government, who had financial liability for cleaning up the site besides Gould. We further learned that Gould received millions of dollars from the Government and other private parties, as well as numerous liability policies. We also found out the specifics of a secret amendment to the Consent Order, which changed the requirement of temporary storage of contaminated soil on site to permanent entombment. Through the National Ombudsman’s geologist, Douglas Bell’s discussions with our engineering consultants, Gannett-Fleming, we finally found someone to give credence to our concerns about mine subsidence and the impact of a potential mine fire on the site. As the investigation continued we were called to Philadelphia to meet with EPA Region III Administrator, Bradley Campbell. He listened to our concerns and told us he would wait for the recommendations from the Ombudsman before making a final decision. Then suddenly in December 2000 a final decision was handed down on the Marjol Site. It no longer called for any guaranteed removal, only what would not fit under the cap. It also no longer called for solidification of the remaining contaminants under the cap. It also came out before the Ombudsman had an opportunity to complete his work and make his recommendation to EPA. Recommendations EPA had promised to listen to. Needless to say we were shocked. Then on January 5, 2001, this case, and every other National Ombudsman case, was suspended, until “clear and consistent direction” was received from EPA Management. EPA Management initiated blatant interference with the National Ombudsman cases, including Marjol. Among other things EPA prohibited the National Ombudsman’s Chief Investigator, Hugh Kaufman, from helping the Ombudsman and attempted to have an Inspector General official, with a conflict of interest, review the case. All of this was done throughout 2001 over the strong objection of Senators Specter and Santorum. We hit another stone wall.

The Pennsylvania delegation communicated with EPA Administrator Christine Todd Whitman, asking EPA to allow Ombudsman Martin to complete his work on the Marjol Site without further hindrance. The delegation met with Administrator Whitman on March 8, 2001 and received assurances that Ombudsman Martin would receive staffing and other resources immediately to proceed with his work. The EPA decision for the Marjol Site was on hold. Despite promises not to hinder the Ombudsman, EPA Management and the EPA Inspector General proceeded to unilaterally detail an investigator from the EPA Office of Inspector General to perform the National Ombudsman Marjol Investigation. This was done without notice, consultation, or approval of the National Ombudsman, even though the individual had a known potential conflict of interest. The Pennsylvania delegation has continued to try to intervene to get EPA to keep its promises to them and our community to no avail. As recently as February 2002, National Ombudsman Martin and his Chief Investigator Hugh Kaufman held the second round of hearings on the Marjol Case. This time EPA failed to participate in the Ombudsman process. One of the many new revelations that came out of that hearing was the fact that EPA has continued to lie to the community of Throop and active officials by falsely stating that the Site could not be cleaned up under the Superfund program. And on goes the saga.

The Independent National Ombudsman’s office within the EPA plays an important role. It serves as a watchdog for the citizens and as backstop to ensure that the best decisions are being made for their community. Trust in the process is heightened when people know they have an ”independent Ombudsman” to closely examine the agency decisions. My concern is to ensure that the National Ombudsman’s office be resurrected to allow it to continue to operate in a transparent way and provide meaningful assistance to local communities, like Throop, when EPA falters as it has in our case. EPA officials have publicly assured us of their full support for the National Ombudsman’s efforts. Their actions suggest otherwise. No government official who supposedly works for us and is paid by us should be afraid to have their decisions subjected to public and substantive Ombudsman scrutiny.

The National Ombudsman Martin’s work on the Marjol Site was essential in exposing the following problems. The Ombudsman’s investigation found withheld documents; secret agreements between Gould and EPA; they questioned the EPA’s choice of Resource Conservation Recovery Act (RCRA) as a remediation process; they questioned the EPA’s use of authority to allow regulations and permitting processes to be avoided. I would also like to mention the questioning of the EPA’s “sound science”, that allows a remediation of a hazardous waste site, that has lead levels at 250,000PPM as well as Polychlorinated-Biphenyl’s (PCB’s) and Poly-aromatic Hydrocarbons (PAH’s),to be abandoned in the middle of a residential community; that is adjacent to the Lackawanna River, and on a site that has continuing mine subsidence and the potential for mine fires, with EPA’s official recommendation of only a thin cap.

The General Accounting Office (GAO) issued a report in April and July 2001 concerning the EPA’s handling of the Ombudsman office. They concluded that EPA did not provide the Ombudsman with sufficient independence and that the EPA treated their Ombudsman much less independently than did other Federal agencies. They felt he should be allowed to choose his own staff, supervise them and manage his own budget. The GAO also said he should report to the Administrator and Congress like all other Federal Ombudsman. Senators and Congressman have expressed their support. Citizens and communities all over the United States have agreed. Thousands of signatures have been collected, and Federal Register comments were provided in 2001. Yet to no avail. As a matter of fact, all of their recommendations are covered in Senate Bill 606. Christine Todd Whitman refused to listen. She mischaracterized the GAO report and used that mischaracterization to fold the National Ombudsman under the Inspector General. She has ignored the pleas of the people. She has ignored the GAO recommendations. She has ignored the Senators and Congressman. She has boycotted meetings and ratified Region III’s boycotting of our recent National Ombudsman hearing. Please stop this injustice and help us to regain our faith in the government in a time when it is most needed. Truth and honesty must prevail.

The National Ombudsman Office is where we can have our complaints and concerns heard. He is a public advocate. Mr. Martin and his staff, Mr. Kaufman and Mr. Bell, did their best for many communities even though their hands were tied. I ask that you meet with Administrator Whitman and ask her to reconstitute the National Ombudsman Office under Robert Martin and pass S. 606 so that no EPA Administrator in the future can harm American communities as Christine Whitman has done. You are our last hope.