Compelling U.S. EPA to Enforce Federal Environmental Law

Testimony of D. DAVID ALTMAN - U.S. House Commerce Committee Subcommittee on Oversight and Investigations

March 17, 1998

It was a bitterly cold and snowy night in January 1996. The working mother returned home to find her 13-year old son, who seemed to have the flu, listless and almost dead on the couch. The fire department rushed him to the hospital where he was treated for exposure to coke oven gas that leaked out of a corroded underground pipe at a steel plant that operated across the fence from the boy's home. When they arrived that night, the fire department found explosive levels of coke oven gas in the little house. The steel company maintained that its leaks did not amount to "reportable quantities" and that they did not violate any regulation or trigger any duty of disclosure. When the mother of the boy testified about her story before the state legislature, she was assured by the sponsors of the pending audit bill that it would never allow a polluter to hide any information in a case like hers.

Today it is clear that such facts can be hidden from people like the mother and her son. In fact, the full implications of the subsurface, benzene-laden gas line leaks that nearly killed the boy have, still, never been explained to the surrounding neighborhood. There has been silence on the threat of future releases from still-contaminated subsurface areas.

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Mr. Chairman and members of the committee, thank you for allowing me to make a statement on behalf of the 550,000 members of the Sierra Club. My name is David Altman and I serve as the lawyer for the Sierra Club's Ohio Chapter and three other organizations--Rivers Unlimited, Ohio Citizen Action and the Ohio Environmental Council--which have filed petitions with the U.S. EPA seeking to compel our authorized state programs to enforce, fully, federal environmental law.

These organizations, along with the petitioners in Colorado, the national Sierra Club, four other national organizations and numerous civic organizations from sixteen states, seek to assure that state audit privilege and immunity laws, whereever they exist, do not block regular citizens from obtaining the full access to information about pollution that is guaranteed by federal environmental laws. Petitioning the United States Environmental Protection Agency is one step citizens can take to assure that state audit privilege and immunity laws are not used as a means to hide the facts about pollution from the directly affected public.

State audit laws, such as those in Ohio and Colorado, actually allow polluters to hide, even from directly exposed citizens, vital information about pollution that presents a direct threat to their health or their environment. Citizens cannot make any use of verbal or written information gathered under the broad, polluter- determined definition of an “audit”. This information cannot be discovered in a legal proceeding and, further, if somehow it is informally discovered, it cannot be used in any hearing. The federal environmental laws do not authorize such a license to be given to polluters, even in the name of political expediency and compromise.

We are here, today, one week shy of two hundred and twenty-three years since Patrick Henry said:

"...For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it."
Patrick Henry speech in Virginia convention, Richmond
March 23, 1775

What was true at the inception of our democracy is no less true today. The citizens of this country have the right to know, today, the truth about pollution and their environment and to decide what steps they will take to "provide for it". They want the right to determine what precautions to take for themselves, even as public officials of all levels of quality and interest struggle to decide what they should do about pollution. Citizens, who are the object of the legal guarantee of environmental protection, have a right to full information. Unless they have the right to the whole truth, their participation in decisions that affect their families and their property will be meaningless. Their right to directly enforce federal law will have been stolen from them.

That is why we need to carefully consider the group of state audit privilege laws that authorize secrecy and immunity. We need to understand that the scope of this secrecy extends even to the underlying facts about pollution. Such audit laws are a new exception to the rule, central to our democracy, that the full truth is the engine that makes our democratic government work. In our system we allow people to hide parts of the truth under the doctrine of "privilege" only in the most exceptional circumstances. Even under the classic doctrines of lawyer-client privilege, executive privilege, and national security privilege we must remain vigilant to the potential for abuse. To elevate the desire of a polluter to hide the facts about pollution to the level of the national security privilege is shortsighted and ignores the lessons of Fernald, and numerous other federal sites that now must be cleaned up. To ignore the lessons of the struggle for truth with the tobacco industry is unimaginable.

This new privilege will undermine both the search for the truth and the struggle to enforce our environmental laws. There is a danger that the congressional debate on "cooperation" between the federal and state governments will serve as a smokescreen cloaking a robbery of citizen right- to- know and right-to- act to protect family, home, and community.

Audit privilege laws, like the ones in Ohio and Colorado, allow the "custody" of the truth to reside with the polluter, while these laws reduce the state government (acting as federal law enforcers) to the level of overworked environmental social workers. This limited state right to have access to some parts of "audits" will only be guaranteed if the state decides to wage a battle with the polluter who has custody of the factual information in documents stamped "audit". In the most important cases we can be sure that the polluter will not let the state have access to information without a struggle. Further, if the state does not physically "obtain" the factual information about pollution in the audit it cannot be passed on to the public. These restrictions on the state’s right of access to factual information keeps it from the party that cherishes it most dearly, the citizens who are concerned about what they and their children are breathing, drinking, and eating. It is significant that the other classic privileges have exceptions that protect underlying factual information from the cloak of secrecy provided by the privilege.

The irony is that in this struggle over who gets the custody of the truth, regular citizens, such as the people I counsel and represent, are being treated like the children who are caught in the middle of a turbulent relationship between two sets of parental forces. One parental force, the US EPA, has been accused, rightly or wrongly, of abuse by some of her 50 partners. Some of these partners, enraged by this real or imagined abuse, are striking out hard in retaliation. In the struggle to find grounds to reconcile and cooperate, the unfortunate compromise that has been struck, (first with Texas, then with Michigan, and, it is now feared, with Ohio), is to bargain away the most precious possession of the "children", i.e. the full truth about the air they breathe, the water they drink and the very soil on which they live and farm. Like children caught in a bitter parental struggle, the scars of the battle will be etched on their land and could linger for generations. As we have learned so often, the cost of removing the scars could be staggering. But, unlike other domestic battles, both of these parental forces are absentee parents. It is the "children" who face the results of the secrecy every day. The regular citizens cannot retreat to homes in Washington D.C. or in Columbus, Ohio or in Chicago, Illinois or in any other regional or district office of a state or federal agency.

To help you understand what all of this means to real people, (who are not the children of government or industry) I want to share with you the perspective of hundreds of neighborhood groups and individuals that I have been a counselor to and lawyer for over the years. I want to help you know some of these civic heroes and leaders to help you decide whether they are entitled to the full truth about the pollution that directly affects them. Who are the real people whose rights are diminished by this struggle? I'd like to tell you about just a few of them and their efforts to protect their property and their children.

Citizens like Marvin Duren (a small business owner and a Bronze Star and Purple Heart-decorated veteran) have sought full disclosure of information such as a neighboring Major Stationary Source's Hazardous Air Pollutants ("HAPs"). The violator withheld full information from state and local agencies about these HAPs by declaring that they were not "required to be disclosed" to anyone, even in the company's Title V application. Mr. Duren, who is a Sierra Club member and an avid organic gardener, uncovered the identity of 28 HAPs (e.g., TDI, styrene, and MDI) only through discovery in his Clean Air Act citizen suit.

Citizens like Nancy Helter (a mother of two, who lived in a small rental property on the edge of a large steel plant) sought full disclosure of information such as the nature and extent of her neighboring industry's coke oven gas releases. Even though these releases almost killed her son on that night in January 1996, the company said that the releases did not amount to a reportable quantity and, therefore, the information sought was not "available" to her. She got partial disclosure of the information she sought only after filing an EPCRA/RCRA citizen suit and invoking the authority of the Federal Rules of Civil Procedure.

Citizens like Cheryl Hopkins (a mother whose son played in the creek which ran next to their home and bordered a neighboring industry) have sought full disclosure of information such as the duration and extent of groundwater contamination that polluted her drinking water well. Only after filing a citizen's suit under RCRA did she get past disposal information from the violator.

Citizens like Linda Briscoe, who for years sought to identify the extent and content of landfill gases that migrated from a nearby landfill into the housing projects were she and thousands of other low income neighbors, lived. In the most striking example of the abuse of audit privilege legislation, even before Ohio's audit law was passed, a giant landfill corporation sought to withhold audits in a state permitting proceeding. These audits showed that the gas had been migrating into the low income community for years, that the source of the gas was the landfill (not a neighboring city facility, as had been publicly suggested by the landfill), and that the migration could not be corrected without taking a series of corrective steps which the landfill never took in a comprehensive manner. Most importantly, information withheld from the public showed that the landfill gas, that has been migrating into the lives of thousands of low income people for over a decade, contained chemicals such as benzene and vinyl chloride, known to cause cancer and other health problems.

The first three examples of citizen "need to know" took place before the Ohio audit bill became law. The information sought in these examples is the exact kind of information that some proponents of audit privilege now admit that they intend to hide. The fourth example took place during the debate and passage of Ohio's audit law. The mere fact that the bill was pending in the legislature delayed the disclosure of the information about the gas and the ultimate passage of the law led to an attempt by the polluter to get the information back from the citizens. The same big landfill attempted to use the state audit law to block disclosure of additional information in federal court. After the landfill’s conduct made it the national poster child for audit privilege abuse, lawyers for the landfill claim to have abandoned the effort to recapture their lost secrets. The information in the audits is vital to show what was known about the migration and how long it has been known. Such information is of no small use in determining the nature and extent of the violation, verifying exposure information, fashioning a remedy for the violation and issuing penalties consistent with the federal law and the violations. With the availability of the information contained in the audit report, the community (even a low income community with limited resources), could show why the expansion of a landfill should not be allowed and was able to go to federal court to seek enforcement of the laws which require remediation of the gas and related problems.

This debate about who has custody of the truth and who has the right of access to the truth is not a mere policy dispute. It is a dispute that, at its heart, requires interpretation of federal environmental law and regulation. A state authorized program seeking to enforce the federal law cannot be the equivalent of direct federal enforcement if polluters have primary custody of the underlying facts about pollution and the right to hide those facts from public scrutiny. Such a state program cannot be consistent with other state programs that do not impede the gathering of information and the need to argue with the polluter about whether the polluter's exercise of the privilege is legitimate. Immediate access to information and immediate enforcement is not available where state laws allow underlying facts to be kept secret in audit reports. Further, federal laws requiring full access to information "obtained by government" are not satisfied if the authorized state program is barred by a state audit law from "obtaining" the underlying facts.

That is why the Sierra Club and the Ohio and Colorado petitioners join thousands of citizens from 16 states and 5 national organizations in calling for the USEPA to hold administrative hearings on state audit privilege laws that interfere with the enforcement of federal environmental laws. State programs must take unambiguous actions: (1) to assure, at a minimum, that state audit laws do not render any factual information about pollution a secret; (2) to assure that any and all information about threats to health or the environment are not hidden from the public; (3) to assure that environmental lawbreakers acting in bad faith are not immunized from accountability for their actions; and, (4) to assure that citizens are not prevented from using information about pollution to compel compliance and to seek the protection their families and communities deserve. If such actions are not taken by any state, that state's authorization to operate the federal program must be revoked.

In other words, creating a scheme under complex state audit privilege laws that authorize broad secrecy about pollution and grant the authorized state agency a limited and circular right to a small portion of the truth, does not and cannot replace the need which citizens of our country have to "know the whole truth and provide for it" that Patrick Henry noted nearly two hundred and twenty-three years ago. There can be no liberty without truth.

Thank you.