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Recent Developments in the EPA Office of the Ombudsman
Subcommittee on Environment and Hazardous Materials
Ms. Heather Malinowski
I would like to thank you, Chairmen Gillmor and Bilirakis, Ranking Members Pallone and Brown, and Members of the Subcommittees for giving me the opportunity to testify before you today. My name is Heather Malinowski, and I am secretary of the community group Pinellas-Pasco Technical Assistance Grant, known as Pi-Pa-TAG. Pi-Pa-Tag, Inc., holds a Technical Assistance Grant to provide the community with information concerning the cleanup of the Stauffer Chemical Superfund Site in Pinellas County, Florida, under EPA Assistance Agreement number 1994931-01-0. Our newsletter reaches over seven hundred concerned citizens at the intersection of Florida's Pinellas and Pasco counties. Opening Statement We are writing on behalf of the community living in the vicinity of the Stauffer Chemical Superfund Site in Tarpon Springs, Florida, as well as others across the nation who may have been adversely affected by hazardous waste sites located in their communities. I am presenting this testimony on behalf of the entire Board of Pi-Pa-TAG, Inc. With this letter, we would like to express our complete and unconditional support for the creation of an independent, fully staffed and funded, EPA National Ombudsman Office. We request that this letter be included as testimony in the Subcommittee hearing record. St. Petersburg Times Editorial On August 30, 2000, a St. Petersburg Times Editorial began with the following words:
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. I would like to tell you our story, as it applies to the EPA National Ombudsman Office. Stauffer Chemical Superfund Site in Tarpon Springs, Florida 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 lie the Florida Aquifer Systems which serve 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 and across the street from an elementary school, the site sits on the bank of a small waterway, the Anclote River, just before it empties into the Gulf of Mexico. It is located very close to the Greek "Sponge Docks", a prime center for the tourist trade upon which this area heavily depends. Nearby is an estuary which serves as the breeding ground for a once-thriving, but now struggling, local fishing industry. It is a beautifully picturesque, but also an ecologically fragile environment. Because of its coastal location, the area is annually subject to potential flooding, storm surges, as well as hurricanes. This phosphate ore processing plant closed down in 1981, but left behind approximately 500,000 tons 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. The site was placed on the federal EPA National Priority List of Superfund Sites in 1994. 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 was intended to be mixed with the contaminated soil below the water table, and which is known to break down upon exposure to salt water, 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, in September 1999, over strong objections raised by community members, 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. They refused. Other Controversial EPA Region 4 Actions at the Stauffer Superfund Site
* EPA Region 4 refused to honor, or even to acknowledge, the State of Florida's Soil Cleanup Target Level for Arsenic of .8 parts per million (ppm) for residential areas.
* EPA Region 4 attempted to mislead residents into believing that the arsenic on the site would be cleaned up to the promised residential standards (.8 ppm), when their intention was, in reality, quite different. They had decided to regulate arsenic in soil as a common poison instead of as a carcinogen, which would have allowed them to apply a much less stringent cleanup level of 21.1 ppm. They continued to tell the community that they were using residential standards, but neglected to mention that "residential standards" was a relative term, and that the residential standard for a poison was much less protective than the residential standard for a carcinogen. Arsenic is known to be a Class A Carcinogen.
* EPA Region 4 shelved and ignored specific reviews and recommendations from the Florida Department of Environmental Protection (FDEP), as well as reports submitted by a university toxicologist hired as a scientific advisor by the state agency.
* EPA Region 4 ignored the Pinellas County Health Dept. / Dept. of Environmental Engineering, in spite of their repeated attempts to have input into the process.
* In spite of having granted a Technical Assistance Grant (TAG) to the community group Pi-Pa-TAG, Inc., EPA Region 4 dismissed concerns raised by the group on the advice of their independently hired technical advisors.
EPA National Ombudsman Investigation at the Stauffer Superfund Site Three months later, in December 1999, at the request of Congressman Mike Bilirakis, 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. A Town Meeting had been scheduled by Congressman Bilirakis' office, at which the Ombudsman Office was to hold the Third Public Hearing for the purpose of reviewing changes which had been made to the newly Amended Consent Decree. The meeting was to be attended by all the various reviewers (State of Florida, Pinellas County, TAG Advisors), and members of the community. Ombudsman Funding Request Denied Shortly before the Town Meeting, we received word that the EPA Ombudsman and his Chief Investigator would not be able to attend the meeting. Their Request for Funding Approval had been denied, and they had been told that they were to apply their resources elsewhere. It was only after Congressman Bilirakis and a few other Congressional Members discussed the matter with then-EPA Administrator Carol Browner, that the funding was approved, and the meeting could proceed as planned. Agency Refusal to Cooperate with Ombudsman Investigation The Town Meeting took place on June 5, 2000. The two previous Ombudsman Hearings had been attended by EPA Region 4 staff representing all five levels of authority - from the Regional Administrator down to the Remedial Project Manager for the site. In contrast, only two EPA Region 4 employees attended this particular meeting. They informed the group assembled that they had their own plan. They would make a very brief presentation (basically, reading a list of changes made to the Amended Consent Decree, and indicating what pages these changes were to be found on). They would then spend ten minutes responding to questions, which they said must be strictly limited to their presentation, and then they would leave. Which they did. Refusing to answer any further questions, over the strong objections voiced by Congressman Mike Bilirakis, Ombudsman Bob Martin, and Investigator Hugh Kaufman, and in full view of television cameras, the EPA Region 4 employees got up and walked out of the meeting. Ombudsman Denied Right to Maintain His Own Staff The next assault on this office occurred in December 2000. At that time, the Chief Investigator for 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.. Hiring and firing was under the direct jurisdiction, and at the discretion of, his supervisors in the Office of Solid Waste and Emergency Response (OSWER). 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. Current Situation 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 during 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 that the agency will really do what the former U.S. EPA Assistant Administrator Timothy Fields had promised, in person, on November 16, 1999: that the agency would "do right by this community". The Independence of the EPA National Ombudsman Office has been a fantasy. Purpose of an Ombudsman Office 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". Transference of EPA National Ombudsman Office to EPA Inspector General's Office EPA Administrator Christie Whitman has recently transferred the EPA National Ombudsman Office to a position within the EPA Inspector General's Office. In our opinion, this is a step in the wrong 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. The United States Ombudsman Association (USOA) has stated that "the most important element in the design of an effective ombudsman's office in government is structural independence, that is, structurally separating the ombudsman from the agency under the ombudsman's jurisdiction." They have criticized the above transference as being an ineffective step towards the goal of creating a truly Independent Ombudsman Office. The United States General Accounting Office (GAO) has stated that, "If the EPA intends to have an Ombudsman function that is consistent with the way the position is typically defined within the ombudsman community, placing the national ombudsman within the OIG does not achieve that objective." 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. HR1431 To these ends, we respectfully request that you give your full support to the Ombudsman Reauthorization Act of 2001 (HR1431). 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.
Sincerely,
Heather A. Malinowski Secretary, Pi-Pa-TAG, Inc.
Attachments
(1) Newspaper Chronology of EPA National Ombudsman Involvement at the Stauffer Chemical Superfund Site in Tarpon Springs, Florida (St. Petersburg Times & Tampa Tribune)
(2) February 23, 2001 Pi-Pa-TAG Community Group Comments on "Draft Guidance for National Hazardous Waste Ombudsman and Regional Superfund Ombudsmen Program"
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