TESTIMONY OF U.S. REPRESENTATIVE JERROLD NADLER (D-NY)
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.