June 21, 2002
Senator James M. Jeffords, Chair
US Senate Environment and Public Works Committee
410 Dirksen Senate Office Bldg.
Washington, DC 20510
Dear Senator Jeffords,
On August 30, 2000, a St. Petersburg Times Editorial began with the following words:
“No one will ever accuse the US Environmental Protection Agency of learning a lesson the easy way. While seeking judicial approval of a controversial cleanup plan for the Stauffer Chemical Superfund Site, EPA officials offended US Rep. Mike Bilirakis, fought with the Florida Department of Environmental Protection, ignored Pinellas County health officials and angered Tarpon Springs residents.”
The editorial then went on to describe a few of the many events which have led to the loss of public confidence in this federal agency.
As secretary for Pi-Pa-TAG, Inc., a community group holding an EPA Technical Assistance Grant for the Stauffer Chemical Superfund Site, I would like to tell you our story, as it applies to the EPA National Ombudsman Office.
Stauffer Chemical Superfund Site
The State of Florida rests on a base made up largely of limestone, a soft rock, which on exposure to water filtering through it, dissolves, forming craters, caverns and tunnels. As Florida is a watery place, surrounded by the Gulf of Mexico and the Atlantic Ocean, and replenished heavily with water during the summer rainy season, the conditions for these geological transformations are both regular and frequent. In specific areas, the formation of sinkholes is very common.
At the heart of this foundation formed of limestone, clay and sand lies the Aquifer System which serves as the drinking water supply for the vast majority of Florida residents.
The Stauffer Chemical Superfund Site is located in Tarpon Springs, Florida, one of the areas which has often been subject to the formation of sinkholes. Situated in the midst of a thriving residential community, the site sits on the bank of a small waterway, the Anclote River, just before it empties into the Gulf of Mexico. This phosphate ore processing plant closed down in 1981, but left behind huge amounts of chemical and radiological processing wastes, buried in drums, poured into unlined pits, and sometimes directly onto the ground. For years, these contaminants have washed into the Anclote River and filtered down toward the main Aquifer System.
Stauffer Management Company (SMC), with the approval of EPA Region 4 personnel, proposed containing all the contaminants onsite, rather than removing them.
They did this without first completing the geophysical studies needed to properly characterize the site and to determine the potential for sinkholes. They did this without first completing the hydrogeological studies needed to determine exactly which directions the already contaminated water in the superficial layers of the Aquifer System was flowing. They did this without even determining whether or not the semi-cement mixture, which is known to break down upon exposure to salt water, and which was intended to be mixed with the contaminated soil below the water table, could keep the contaminants from leaching out.
Residents repeatedly questioned the safety of these plans, and were told that their questions would be answered later. What they were not told was that EPA Region 4 and SMC planned to go ahead and sign a Consent Decree in court, which would establish the containment method, chosen on the basis of inadequate data, as the valid cleanup plan for this site. While EPA Region 4 would continue to communicate with local residents, the important decisions would have already been finalized.
Involved residents were outraged. The community was being effectively barred from any further meaningful participation in the process that would determine the fate of precious community resources. EPA was asked to withdraw the Consent Decree until crucial studies had been completed and valid scientific questions had been answered.
Three months later, in December 1999, the EPA National Ombudsman Office began an investigation into issues related to the Stauffer Chemical Superfund Site. As a result of information brought to light as part of the ongoing Ombudsman Investigation:
1- EPA Region 4 & Stauffer Management Company (SMC) agreed to withdraw the
Consent Decree from the Department of Justice, and to begin drawing up workplans
for the additional geophysical and hydrogeological studies which need to be completed
for accurate site characterization. These workplans were to be reviewed in the course
of the Ombudsman Investigation.
2- EPA Region 4 agreed to include the US Geological Survey (USGS) as reviewers of
the workplans and additional study data, when it was completed.
3- EPA Region 4 & Stauffer Management Company (SMC) agreed to honor the State of
Florida’s Arsenic Soil Cleanup Level for industrial use (3.7 ppm), which is much more
protective than the level initially proposed (21.1 ppm).
4- It was revealed that corporate and financial maneuverings had recently taken place,
and that EPA Region 4 had allowed a “new company” to sign the Amended Consent
Decree, without first performing a thorough investigation into the financial standing
and reliability of the new company to assume the responsibility of covering the costs
of the cleanup.
Residents in the community and their elected officials believed that much progress was being made. After years of conflict and delays, communication was finally being facilitated between all the involved parties, and the Superfund process was finally getting back on track. Then, in June 2000, the system fell apart.
First, the Ombudsman Office’s Request for Funding Approval, in order to continue with the ongoing investigation, was denied. It was only reinstated due to the intercession of Congressman Bilirakis and elected officials from other affected sites.
Second, agency personnel refused to cooperate with the ombudsman investigation. In June 2000, EPA Region 4 staff walked out of a public meeting, refusing to answer any further questions.
Third, the agency denied the Ombudsman the right to maintain his own staff. In December 2000, the Chief Investigator in the Ombudsman Office was denied permission to do any more work for that office, and the Ombudsman was informed (or reminded) that he did not have the right or the authority to control his own staff. With the expulsion of the Chief Investigator, who was intimately involved in the cases, the office struggled and foundered, and ultimately had to suspend work on most of their current investigations.
Two years have now passed since what we refer to as “The Walk Out Meeting” occurred, the occasion when EPA’s initial resistance to the Ombudsman Investigation in our community gave way to outright obstruction, to be followed by the eventual crippling of that office. After a brief period of hope, when through the Ombudsman Hearings we saw EPA finally becoming responsive to the concerns expressed by the TAG Advisors, the Florida Department of Environmental Protection (FDEP), the Pinellas County Health Dept. and members of the community, we now have no faith in this agency.
The Independence of the EPA National Ombudsman Office has been a fantasy.
In July 2001, the General Accounting Office (GAO) issued a Report entitled: “EPA’s National and Regional Ombudsmen Do Not Have Sufficient Independence ”
On the first page of the GAO report, it states that, “In particular, ombudsmen help federal agencies be more responsive to persons who believe that their concerns have not been dealt with fully or fairly through normal problem-solving channels.”
And why would normal, problem-solving channels not be sufficient?
Perhaps there are many reasons. One important reason has to do with what Professor Larry B. Hill (Professor of Political Science, University of Oklahoma) refers to as, “the institution’s relevance to the issue of the emerging relationship between bureaucracy and democracy.” While on the one hand, we extol the importance and benefits to society which can only be gained through participatory democracy, the immense size and complexity of our governmental structures threaten to dwarf and crowd out the role played by individual citizens. The fortress-like structure of a bureaucracy can become impenetrable to private citizens. A bureaucracy can sometimes function with the cold, unreasoning efficiency of a machine which has been rigidly programmed, remaining unresponsive to any new or unfamiliar input.
For this reason alone, there need to be mechanisms which can, in the words of the GAO Report, “provide the public an informal and accessible avenue of redress”.
EPA Administrator Christie Whitman’s decision to transfer the EPA National Ombudsman Office to a position within the EPA Inspector General’s Office is not a step in the right direction.. Faced with a GAO Report indicating the need for Independent Ombudsmen, the agency seems to be desperately attempting to avoid establishing a truly Independent Office, by announcing this pseudo-compliance with the recommendations made in the GAO Report.
We do not believe that this move would establish an Independent Ombudsman Office - by a long shot. It does not give the Ombudsman control over prioritizing and choosing cases, over deciding what level of involvement the Ombudsman Office will have in each case chosen, over how the Ombudsman Office budget will be allocated, or over the hiring, supervising and dismissing of office staff.
EPA has stated that the Inspector General Office is the only independent office within the agency. Our response to this is that it is time for them to establish another one.
To these ends, we respectfully request that you give your full support to the Ombudsman Reauthorization Act (SB 606).
This piece of legislation is well-deserving of complete bipartisan support, as everyone can agree with the concept that, in a democracy, government agencies must remain accountable to the citizens they were created to serve.
An Independent National EPA Ombudsman Office can be one of the most valuable and powerful tools we are able to establish in seeking to ensure that the federal EPA exhibits this accountability. It would be a commitment to maintaining a system of Quality Control, and where needed, would help to legitimize the Superfund Process in communities where the agency has assumed jurisdiction for remediating toxic waste sites.
St. Petersburg Times Editorial
The St. Petersburg Times ends their August 30, 2000 Editorial with the words,
“We now know there is no substitute for vigilance in the Superfund process.”
Please support this Ombudsman Office which has acknowledged public vigilance and worked to safeguard, not only community resources, but also the process of democracy-in-action at the community level.
Thank you for your consideration of this matter of such great importance to affected citizens.
Secretary, Pi-Pa-TAG, Inc.