Testimony of POGO's Danielle Brian, with EPA National Ombudsman Bob Martin and Senator Wayne Allard at a Hearing regarding the Shattuck Superfund Site and the EPA National Ombudsman Program

I am Danielle Brian, Executive Director of the Project On Government Oversight, or POGO, a Washington based, non-partisan non-profit organization that, since 1981, has worked to investigate, expose, and remedy abuses of power, mismanagement and subservience to special interests by the federal government. POGO's goal is to improve the way the government works by revealing examples of systemic problems, offering possible solutions, and initiating change.

I am not an expert on cleaning up Superfund sites. I am, however, pretty well experienced in how the federal government works - and doesn't work - and I have seen enough to believe that Senator Allard's legislation is critically important. Your legislation is necessary to ensure that Superfund communities have access to fair and impartial hearings and resolutions of their concerns regarding the EPA's plans for clean up of their sites. Your legislation will provide the National Superfund Ombudsman's office necessary protection from interference into their investigations by top EPA management.

I submitted testimony at your last hearing on October 16 outlining our experience helping the community of Uniontown, Ohio petition the Ombudsman's office for review. Region 5's handling of the case had left the community, and me too, believing that the Region was treating the PRP's as partners and the community as an annoyance. Much of their experience would be familiar to those of you here: secret meetings between EPA regional staff and the polluting companies, EPA kowtowing to the polluters' wishes, EPA ignoring evidence they didn't like and going back to the polluting companies for "better" data. I was frankly astounded to find that EPA Headquarters had informed the people of Uniontown and their Congressman, Rep. Tom Sawyer, that the Ombudsman would not be allowed to review their case. I was confused. They tell him which cases he is allowed to review? I looked up the meaning of "Ombudsman", because I thought perhaps we were mistaken and that an Ombudsman is not, by definition, independent. But we were right. An ombudsman is supposed to be independent. And something was terribly wrong with the way the EPA was operating.

This Ohio community finally mustered enough voices, with the American Friends Service Committee, POGO and Representative Sawyer, to force the EPA to reverse its position and to allow the Ombudsman to make his own assessment of the site. But should a community need to have a regional activist group, a Washington-based government watchdog group and a Member of Congress repeatedly plead their case before they can get access to the Ombudsman? No. The Ombudsman should be available to the public without interference.

The Ombudsman held a public hearing in Ohio. This was the first time the community was given the opportunity to demand answers in a public forum. Region 5 had been on a fast track to allow the local rubber companies to rely on natural attenuation as the remedy to their site (should it surprise any of us that this would be the least expensive remedy possible for the polluting companies?) - yet the hard-hitting and well researched questions posed by community members stopped them in their tracks. It has been over a year since that hearing and the Region hasn't been able to move ahead with its plan because it simply couldn't justify its position in light of the information raised at the Ombudsman's public hearing. Unfortunately, because current interpretation of the Superfund law in the courts preclude community legal action until after the cleanup has finished, the Ombudsman is a community's only avenue of recourse.

We decided to look at other EPA regions around the country to see if this situation was unique. Unfortunately, we found that it is not. We learned about the Shattuck site here in Denver, and the Brio Texas site, and about McFarland, California and Tarpon Springs, Florida and on and on. These were all communities where they had come to view the EPA, not only as unresponsive to their concerns, but as active partners with the polluters. In fact, it appears that all too often the EPA has even broken the law in its rush to appease the polluting companies: withholding documents, secret meetings, lying to Members of Congress and to the community. And the only thing that stands between the EPA and the polluters is the National Ombudsman's office. Not only did Bob Martin offer these communities successful resolutions to their particular troubles, he gave them reason to believe that sometimes the government can do the right thing.

As a reward for his good work, the EPA is trying to get rid of him. Not only is the Office ridiculously underfunded, but one of the more insidious efforts to drain power from the National Ombudsman is the EPA's Regional Ombudsmen. This is an utterly flawed concept where a person wears two hats - part of their day they are expected to be an independent arbiter, and the other part of their day they return to being an employee for the very people whose work they are evaluating and investigating.

Last year POGO was proud to give Mr. Martin our "Beyond the Headlines" award. This is an award designed to recognize a politician, federal employee, journalist or activist who has made significant contributions towards public policy improvements without regards for personal gain. I have seen over the past two years how hard the EPA has made it for Mr. Martin to do his job. Not only must he enter into highly contentious situations and work to identify the appropriate resolution for a site, but he must do this while constantly keeping an eye on his back. It seems that Mr. Martin's ability to cut through bureaucratic stonewalling has earned him a fair number of enemies at his own agency - which is unfortunately what you'd expect for an Ombudsman who is doing his job well. POGO will be releasing the results of our investigation into attempts to stifle the independence of the National Ombudsman's office later this year. I already know, though, that Senator Allard's legislation will help to preserve the National Ombudsman's ability to call it as he sees it.

I must say that the people of Denver should realize how unusual it is to have a Senator that is willing to come to not just one, but to three of these public hearings. I can't think of another instance that I'm aware of where a Senator has devoted so much of his personal time to helping on an issue like this. I am so impressed. But not every Superfund community has such a supportive Senator. These communties also need to know that the Ombudsman's office will be there for them. Without Senator Allard's legislation, I fear Mr. Martin's office will not be available to them, as he will not be free from interference by the very subjects of his investigations. I look forward to working with your office, Senator Allard, and to seeing your bill become law.