Hearings - Testimony
Subcommittee on Superfund and Waste Management
Impact of Certain Government Contractor Liability Proposals on Environmental Laws
Tuesday, November 8, 2005
Tony Zelenka
President, Bertucci Contracting Corporation, Jefferson, LA

Thank you, Chairman Thune, Ranking Member Boxer and the distinguished members of the Subcommittee for this opportunity to testify on Louisiana’s struggle to recover from Hurricane Katrina, and the great need for legislation along the lines of the Gulf Coast Recovery Act of 2005 (S. 1761), which I support and urge Congress to enact.


I am Tony Zelenka, the President of Bertucci Contracting Corporation. My company is a small business that performs levee and coastal restoration work across the Gulf Coast. I was born and raised in New Orleans, and I have over 20 years of experience in the construction industry. My family’s firm traces its history back to 1875, when my great-great grandfather founded the company in New Orleans.

The morning after Hurricane Katrina hit the Gulf Coast, I waded through chest-deep water to reach the closest highway. As I did, I carried my bicycle over my head, so I could ride to my truck and then drive to my family, who had evacuated to Jackson, Mississippi. I had stayed behind to make sure our home survived the storm.

While with my family, I learned that the levees in New Orleans had failed. I knew that the Army Corps of Engineers was going to need contractors to stop the flooding, and I had to believe that the storm had already knocked its New Orleans office out of commission, so I headed for the Corps’ emergency response center in Vicksburg, Mississippi. After meeting with Corps officials that first day, and with no more than an oral agreement to execute a written contract, I went to work hauling stone and rock to repair the breached levees that had flooded New Orleans. I was one of the first contractors to arrive on the scene.

In a situation like this, contractors like me focus on protecting our employees and helping our communities as quickly as possible. Under the direction of the appropriate authorities, we help our country recover from one disaster after another. We are the first entities, the first responders, to arrive on the scene of a disaster with the goal of providing whatever support we can. In the case of Hurricane Katrina, we did everything we could to stop the water from pouring into New Orleans. For the past 10 weeks, we have been working seven days a week.

Personally, this disaster has touched many contractors in the area. While my home – thankfully - was spared from the devastation, many of my employees and their families’ lives have been ruined by this disaster. As we continue our efforts to clean up the city, I have also sought to help my employees re-establish their lives and livelihoods.

The clean up process in New Orleans continues to move forward. Standing side-by-side with my employees, I have personally done a lot of the work, and I have done it under crisis conditions. From the beginning, we have worn personal protective equipment, and done our best to protect ourselves from the many hazards, but like it or not, we have had to wade through the flood waters, and deal with the spray that the helicopters caused. We continue to deal with gas leaks, oil spills, downed electrical lines, and backed up and overflowing sewer lines.

While you all have been watching the devastation on television, we have been living it for the last 10 weeks. Many of my employees are still homeless and have had their families displaced, and my city is uninhabitable. In fact, I am a little nervous about being away from the job site in the daylight for the first time since this terrible tragedy first happened.

Construction contractors have a critical role in providing disaster assistance to federal, state and local officials. We are essential in the rescue of both persons and property. Our county has never experienced a dislocation of the size and scope of Hurricane Katrina. Contractors like me stopped the flow of water into the city and we will be busy for months on the demolition, removal, repair and reconstruction of both structures and utilities damaged by the hurricane. We will clean up property polluted by the hurricane, remove vast amounts of debris, and dewater flooded areas. This is our city and we want to bring it back.

Unfortunately, there are people out there who want to capitalize on this tragedy and others like it. Lawsuits have been filed against contractors who have performed the types of rescue and recovery work my firm has been doing in New Orleans. Take a look at what happened in New York after the terrorist attacks on 9/11. Hundreds of lawsuits were filed against contractors for the heroic work they did to clean up the Ground Zero in a short amount of time at the express direction of the federal, state and local authorities. I have attached an AP story to this testimony that reports on the litigation.

The madness has already started in Louisiana, where a contractor was named as a defendant in a class-action only three weeks after the Hurricane hit. The trial lawyers sued the contractor for building a faulty levee – which the contractor did not build in the first place. The case was dismissed after a few days, but it is a prime example of the hunger out there – no matter how arbitrary the suit may be - to sue contractors.

I worry that I may be sued for property damage as part of the clean-up. The government has recently hired me to begin the massive debris removal, including the demolition of private homes damaged by the hurricane. This is a very emotional situation even though all levels of government have determined that these homes are completely uninhabitable and beyond repair or restoration. The government has decided that they must be torn down and completely rebuilt, due to the flooding, hurricane winds and mold. But I now fear legal risk for moving ahead, and doing exactly and only what the government hired me to do. Why am I worried? Because everyone has spent all this time looking for someone to blame, instead of looking for a solution. Meanwhile, contractors are expected to continue the clean up, and do it as safely and quickly as possible, despite an uncertain legal and logistical environment.

Remember, unlike many public officials and their agencies, contractors have no sovereign immunity. We look to the government at all levels for guidance on the best way to do this work safely and efficiently. Ultimately, in emergency situations we have to put our assets on the line if we want to help, which means I may be at risk of losing my company for simply doing what I have been hired by the federal government to do – trying to help save my city.

I believe passing The Gulf Coast Recovery Act (S. 1761) is necessary to ensure that contractors like me will be there to do the work in the future, without fear of reprisal. The bill offers limited protection to government contractors from any citizen suits that might result from their performance of disaster recovery contracts, enabling them to focus on the work. This legislation would give my firm a reasonable measure of protection, allowing me to pass this fifth-generation family business on to the sixth generation.

Do not let the trial lawyers penalize the contractors like me who report for duty. We are a critical link in the restoration of our city. I ask you to pass this legislation. I also ask you to do something else – listen to the experts. Listen to the Army Corps of Engineers. Listen to the local levee districts. Do not shortchange the rebuilding and flood protection efforts underway.

I have been asking for increased funding for the Southeast Louisiana Urban Flood Control Project (SELA) for years, but unfortunately, my calls for increased funding to rebuild the wetlands and coastline and provide additional protection for New Orleans have consistently fallen on deaf ears. Please tell your colleagues to not only increase investment, but fully fund this national priority.

Please approve the Gulf Coast Recovery Act and please commit to rebuilding my city.

Thank you for this opportunity to comment. I look forward to working with the Subcommittee and would be happy to answer any questions.

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