Senator Bob Smith July 31, 2002 Superfund Hearing

Today's hearing focuses on a recent EPA IG report - or more, to the point, this hearing is responding to how the media has characterized this report. Unfortunately, some are taking the media characterization as fact. It is my hope that the facts will finally get their chance. When the IG report was issued, it was a snapshot in time - that is all. In fact, had the IG done similar reports 5 or 10 years ago, we would have seen basically the same picture. The Superfund funding decisionmaking process has not changed with this Administration. Needless to say, when I read the New York Times article and saw a New Hampshire site on the list I was particularly disturbed because it was my understanding that the clean up of the Merrimack site was on schedule. Of course when I spoke with EPA after reading the article, they assured me that the clean up was, in fact, on schedule and its inclusion was being grossly mischaracterized. We all know this hearing is about the elections in November, plain and simple. You take a report from the Inspector General office, leak it to the New York Times with a misleading spin, and all of the sudden you have good story.

There has also been an on-going dialogue between EPA and this committee regarding information on Superfund. Many have been claiming that EPA has been non-responsive and uncooperative in providing documents to the committee on this matter. The correspondence that

I have received however indicates otherwise. For the record, I would like to submit the letter from EPA to the Superfund Subcommittee Chair and Ranking Member, in addition to a chronology of the steps taken to provide the committee with documentation.

Playing politics with the environment is nothing new, and it is always unproductive. Every single major environmental law passed the Congress with strong bipartisan support. Every time political grandstanding entered into the debate progress stopped -but of course political points were scored. It's a shame when you put environmental politics above environmental progress. I hope that we can put this partisanship behind us and move forward on protecting the environment.

 

Chronology of SEPW Information Request

March 8, 2002                           Senators Jeffords, Smith, Chafee, and Boxer mailed letters (dated "March 8, 2001") to each of EPA's ten regional offices. The letters requested detailed information regarding the Superfund program. Although some regions did not receive the request, headquarters made sure that all the regions were aware of the request so that they could begin to prepare responses.

March 15, 2002                       Ed Krenik of OCIR sent a letter to Senator Jeffords, et al., requesting a meeting to discuss the scope of the letter and to request that in the interest of accuracy, timing and resources, that the scope be defined to exclude redundant and non-responsive materials.

March 26, 2002                       EPA Headquarters Office of Congressional and Intergovernmental Affairs (OCIR) and Office of Solid Waste and Emergency Response (OSWER) participated in a conference call with SEPW Committee staff (including Boxer staff) in order to clarify the request so that the information can be provided prior to the April 10, 2002, hearing.

April 4, 2002                          Information discussed at meeting is delivered to Senators Jeffords, Smith, Chafee and Boxer. Information provided included the regional responses to questions 1, 2, 3, 4, 5, 6, and 7 including headquarters attachments referred to by the regional offices (new start list, January 3 funding distribution memo for 1St and 2nd quarters of FY 2002, and 3 construction completion status updates). At this time, it was OCIR's understanding that all information requested by the March 8, 2002, letter had been provided.

April 10, 2002                        SEPW subcommittee hearing was held at which Marianne Horinko testified.

Week of April 15, 2002          Senator Boxer's staff called to request information in addition to that provided for the April 10' hearing.

Week of April 22, 2002             OCIR and OSWER staff requested another meeting to determine exactly what information is being requested.

May 13, 2002                            Meeting and a briefing on Superfund performance is held in SEPW hearing room. Meeting is widely attended by representatives from SEPW Committee and the Democratic Party Communications Staff. During the meeting, Senator Boxer's staff again requests a list of "unf inded" sites. Again, OCIR staff explain how program is managed and why there is no Agency listing of "unfunded" sites.

 

May 23, 2002

Governor Whitman met with several Senators regarding Clean Air

 

issues. The Governor and Senator Boxer also discussed Superfund

 

issues.

May 31, 2002

OCIR (Ed Krenik and Don McKinnon) met with the staff of Senators Jeffords and Boxer and provided copies of FY 2001 Construction

 

Completion Candidate Site Status updates, copies of FY 2002

 

Construction Completion Candidate Site Status updates, the FY 2002

 

Construction Completion Candidate Sites update - May 2002, the list

 

of FY 2001 sites that reached construction completion, and a list of

 

the reasons sites identified in first FY 2001 Construction Completion

 

Candidate Site Status update did not reach construction completion.

 

These documents are later officially provided in the letter dated June

 

4, 2002.

May 31, 2002

Letter from Senators Jeffords and Boxer asking for the additional

 

information by June 20.

June 4, 2002

Letter to Senator Boxer from Ed Krenik including e-mails from

 

OCIR staff asking for the regions to submit additional information.

June 20, 2002

Letter to Senators Jeffords and Boxer with approximately a 3-foot­

 

stack of documents delivered to SEPW staff. Documents provided

 

include a privileged June 6, 2002, funding memo distributing the 3rd

 

and 4th quarter FY 2002 funding for the Superfund Program, a list of

 

federal facilities that are megasites, and a compilation of the updated

 

regional responses to questions 1, 4, 5., 6, and 7.

June 27, 2002

Responses to questions from the April 10, 2002 hearing were

 

provided to the Committee. EPA has requested, and is waiting for,

 

the hearing transcript.

July 23, 2002

Letter dated July 23, 2003 sent by the SEPW Committee received by

 

EPA. The letter was effectively an outline of concerns on the part of

 

the Committee regarding EPA's response to the March Stn

 

information request.

July 24, 2002

Response to aforementioned letter sent to the Committee from Ed

 

Krenik. The response consisted of assurances that the Agency made

 

every attempt to comply with the original request and an outline of

 

EPA's commitment to obtaining the additional information identified

 

and requested by the Committee in its July 23rd letter.

 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON. D.C. 20480

 

JUL 2 4 2002

 

 

OFFICE OF CONGRESSIONAL AND INTERGOVERNMENTAL RELATIONS

 

The Honorable Barbara Boxer

Chair, Subcommittee on Subcommittee on Superfund, Toxics, Risk, and Waste Management,

Committee on the Environment and Public Works

United States Senate Washington, DC 20510

 

Dear Madam Chair:

Thank you for your letter of July 23, 2002 to Administrator Whitman requesting documents related to EPA's management of Superfund site funding. Administrator Whitman and I appreciate the importance of Congressional oversight, and we will continue to make our best effort to meet the oversight needs of the Subcommittee.

 

I would like to take this opportunity to explain how we responded to the Committee's previous request, and the steps we will use for this request. First, I want to assure you the Agency has made every attempt to comply with the original request of March 8, 2002. As you know, the Committee's original letter was sent to all 10 EPA Regions. After several Regional offices began asking Headquarters how to respond to the broad scope of the letter, we requested a meeting with your staff and Committee staff to discuss ways to better target the request toward information that would be useful to the Committee, and to provide information prior to the April 10, 2002 Subcommittee hearing. After meeting with your staff, we followed up with several emails to our Regional offices -- including an email to each Regional Administrator - referencing your letter and requesting that they search for responsive documents. We provided clarifications and attempted to give examples of what would be responsive and what would not be necessary to collect, based on our understanding of your needs. For example, based on our understanding that your staff was interested in gaining an understanding of the budget and management decisions made by EPA with regard to Superfund sites, we directed Regional staff to exclude construction and design plans, copies of contracts, invoices and related communications, personnel related papers, etc. We had numerous conversations with several Regions to explain the scope of the request, answer questions, and to request further document searches for materials that fell within the request, as it was written, particularly when we saw significant variability in the Regional responses. All of the Regional documents, about a three foot stack, were provided to the Committee.

 

While it is true that we did not provide your staff with a copy of Headquarter's communications with the Regions until after we had begun providing documents to you, the process of negotiating your request was entered into in good faith. Our actions following those conversations likewise were good faith efforts to meet your needs. As we move forward we will redouble our effort to keep your staff informed of our internal process for document collection. While this level of transparency is unprecedented in our experience with Congress, we are pleased to make every effort to give you the assurances you need that all appropriate documents are collected and forwarded to the Subcommittee.

Please let me assure you that information gaps (email attachments, etc.) in the documents that we provided you on June 20, 2002, were unintentional. Any such problems can be resolved with a phone call to me or my designated staff. Nonetheless, at the July 17, 2002 meeting of your staff and Marianne Horinko, Assistant Administrator for    lid Waste and Emergency Response, the Agency committed to providing copies of all such information that was mistakenly not printed out, and will specifically request that Regions print such documents in our next instructions to Headquarters and Regional offices.

 

We will again send your letter to each Regional Office, -as well as Headquarters offices that may have responsive documents. If there are any instructions included with the transmittal of your letter to EPA offices, I will provide your staff an opportunity to review the transmittal, as discussed at the July 17 meeting. My staff has made recommendations on how your request could be targeted to more efficiently meet your oversight needs without requiring EPA staff to collect extraneous documents. However, if you prefer, we will transmit your request without any modification with respect to the type of documents requested. In any event, we will provide instructions for assembling and reviewing the documents (identifying privileged documents, etc.).

Enclosed, in response to your July 23rd letter, is the enforcement sensitive Remedial Action Priority List. Although we had not received a written request for this list prior to your July 23, 2002 letter, we did make several offers to your staff to review the document at EPA. You should be aware that, on the advice of EPA's General Counsel, Office of Enforcement and Compliance Assurance, Office of Solid Waste and Emergency Response, and the Department of Justice, access to this document must be carefully controlled. I remain very concerned that the release of this document, or any information from the document, could seriously undermine ongoing enforcement activity and the effectiveness of the federal Superfund program. The Remedial Action Priority List contains information that is subject to the deliberative process privilege and is enforcement sensitive, and is marked as privileged. EPA's disclosure of this document to you does not constitute a waiver of any applicable exemptions under the Freedom of Information Act (FOIA) that EPA may claim in response to FOIA requests for this document. In addition, EPA's disclosure of this document to you does not constitute a waiver of any applicable legal privileges that EPA may claim in litigation or other proceedings. I therefore request that you preserve the confidentiality of this document and all documents marked privileged or sensitive by refraining from making or providing copies, or otherwise communicating the contents of these documents, to persons other than those with a need to know as part of this Congressional oversight review.

I have also enclosed a fact sheet and status report on 33 Superfund sites that have been the subject of media attention. While not requested in your letter, these documents were requested by your staff at the July 17, 2002 meeting.

To date, in addition to this letter and enclosures described above, the Agency has provided to you a privileged June 6, 2002, funding memo distributing the 3rd and 4th quarter FY 2002 funding for the Superfund Program, a list of federal facilities that are megasites, and a compilation of the 10 regional responses to questions 1, 4, 5, 6, and 7 of your March 8, 2002 letter. You have also received: the January 3, 2002 funding distribution memo for the 1$` and 2nd quarters of FY 2002; the FY 2001 Construction Completion Candidate Site Status updates; the FY 2002 Construction Completion Candidate Site Status updates; the FY 2002 Construction Completion Candidate Sites update (dated May 2002); the list of FY 2001 sites that reached construction completion; and a list of the reasons that sites identified in first FY 2001 Construction Completion Candidate Site Status update did not reach construction completion. These documents were officially provided in the letter to the Committee dated June 4, 2002.

 

If I can be of further assistance, please don't hesitate to contact me, or your staff may call John Reeder on 202/564-5200.

Sincerely,

 

Edward Krenik

 

Associate Administrator