The Example of the Abuse of The Audit Privilege

Testimony of Linda Briscoe and Rev. Solomon Lundy Committee on Environment and Public Works of the United States Senate

Mr. Chairman and Members of the Committee:

We are pleased to have the opportunity to provide you with written testimony concerning our experiences with a multi-national, giant corporation's use and abuse of environmental secrecy and audit privilege bills. The lessons we wish to share in this testimony were learned in attempting to find out about toxic landfill gas migration from one of Waste Management's landfills in Cincinnati, Ohio. We were forced to organize to protect ourselves because, time and time again, local and state authorities did not protect us. They were willingly or carelessly misled by Waste Management.

Waste Management's ELDA Landfill has operated since approximately 1973 in the midst of a densely populated urban area, the most densely populated zip code in Cincinnati. Thousands of low income people live within 2000 feet of the landfill. Our members and neighbors include the elderly, babies, teens and pregnant women. The operations of ELDA and its gas migration have robbed those of use who live near the landfill of the use of our yards, the ability to have our windows open in the summer and have eroded the quality of our lives. We are left with questions about our years of exposure to the gas and the pattern of health problems seen at our local clinic. We had a right to know about our gas exposure years ago.

Our concerns have a basis. The landfill was not built according to modern standards. It was supposed to close after about 10 years of operation. It is still in operation 24 year later. The substantial quantities of landfill gas generated by this landfill escape through subsurface sand seams, fissures and cracks in subsurface rock. The odors that we detected off-site present a constant reminder of landfill gas migration. With these facts in mind, we need to review what Waste Management kept secret from us:

The non-methane portion of the gas includes benzene, ethylbenzene, toluene, xylene, 1-1-1 tri-chloroethane, ethylene chloride, trichloroethane, vinyl chloride and many other chemicals.
Exposure to these chemicals can affect the liver, kidney, respiratory systems, eyes, and skin. Several of these chemicals are carcinogenic.
Generation rates of landfill gas will not peak until after the landfill is finally closed. Because of legal maneuvering, this will not happen until at least 1998.

Our community's history of concern over the landfill goes back over a decade. When we explained our neighborhood concerns and the symptoms of gas migration to authorities, no one listened to us. They did listen to Waste Management. Finally, in the 1980's one of four housing developments near the landfill was outfitted with methane gas monitors in the homes to detect methane at explosive levels (i.e. 20,000 parts per million). We were not told of the dangers (at less than 1 ppm) of the non-methane components of the landfill gas and of our exposure to these chemicals.

Waste Management even went so far as to deny existence of the flare which residents had seen burning methane gas every night. Eventually, Waste Management admitted that they had been burning methane (initially without a permit) in an effort to control landfill gas.

The methane monitoring system that was installed in the one housing development turned out to be fraud and a charade, as evidenced by sworn testimony in a permit hearing noted below.

Every time we told someone about the odors of the gas, we were told there were other chemical companies in the neighborhood and that we were probably smelling their pollution. However, we learned (ironically on public relations tours of ELDA) that the odors we were smelling came from the ELDA Landfill.

Not satisfied with extending the life of the landfill twice beyond its original projection, Waste Management actually tried to expand (again) over and around the existing inadequately constructed landfill. The community found two pro bono environmental lawyers to oppose the expansion. They conducted many weeks of discovery and then represented us at a five week hearing in Columbus.

During the weeks of discovery, our lawyers were supplied with fragmented pieces of the gas information and they managed to piece many of these together. Waste Management, however, refused to give computerized management compliance reports (which they called "audits") that comprehensively put together the facts concerning the gas migration into the community (we have attached an example to our testimony). Based on its assertion that its internal "audits" were confidential and privileged, Waste Management hid the gas migration information from the surrounding community.

Because our lawyers persisted, they were finally given the so-called audits in the middle of the administrative hearing on the expansion of ELDA. Waste Management used a non-existent "self-evaluation privilege" and the existence of the pending Ohio audit bill to withhold these documents. When Waste Management's legal maneuvers failed - because the bill had not yet passed into law - our lawyers were able to put the whole puzzle together and show what Waste Management knew and when Waste Management knew it about gas migration. They showed how Waste Management had been able to throw off state and local officials even though Waste Management knew that the gas was migrating from its ELDA Landfill.

Further, the document trail showed that Waste Management's own consultants had told them what had to be done to fix the problem. Waste Management failed to take these steps. Most importantly, the documents showed why taking such steps (e.g. doing hydrogeologic investigations and tracing the sand seams, fissures and cracks) was vital before any meaningful gas control could be established.

After we won our hearing blocking ELDA's expansion, the Ohio legislature passed the audit privilege bill. Waste Management promptly asked the Director of the Ohio EPA to force us to give their "audits" back! The Director declined because the bill had not yet been signed into law and government entities (the Ohio EPA and USEPA) already had the documents in their open records files.

Armed with the information we learned, we gave Waste Management a written notice that detailed their violations of federal law. Waste Management did nothing to respond to us and CUFA filed a federal lawsuit to enforce the federal laws that were violated.

After we filed our suit, the Director of the Ohio EPA used the information we gathered to issue a state order ordering ELDA to abate the migration of the explosive landfill gas. The toxic and other hazardous properties of gas were not mentioned in the order. The focus of our federal suit is the toxic and hazardous properties of the gas, not just its explosion potential.

Our federal suit seeks to require Waste Management to do what its own consultants have recommended concerning a subsurface internal evaluation of the landfill and abatement of all migration.

When we started "discovery" in our federal case, Waste Management, remarkably, used the existence of Ohio's audit law (which had been signed by the Governor of the State of Ohio with an effective date of March, 1997) to keep from giving us the same documents which they had already produced in the state case (they also withheld audits which deal with groundwater and other related issues that were beyond the scope of our discovery in the administrative hearing.)

Finally, after months of stalling and delay and intense questioning by national media, Waste Management presented at least some of the audit information that we had requested. However, steps are still being taken to verify whether all of the so-called audits have been produced.

At the same time that Waste Management finally produced at least some of this "audit" information, Waste Management filed a motion asking the federal court to abstain from hearing our federal claims. Waste Management is seeking to have the federal court send the case back into the state system where the new state law will preclude us from using the information that we have been given.

These circumstances have led us to ask the members of this Committee to consider the following:

  1. If one of the national architects (Waste Management) of the state audit privilege movement, is capable of making this use of a pending bill (before the bill has passed) and if such a company will apply pending legislation to "audits" that were completed prior to the date of the passage of an audit bill, what basis is there to believe that other polluters will reveal similar facts?
  2. What would have happened to us if our community had not had aggressive pro bono lawyers to get the information and if the national media spot light had not been on the polluter?
  3. Finally, how will any one know it when a polluter has secretly slipped the truth about its pollution into a file which the polluter has labeled "AUDIT".

We would be happy to discuss any and all of these matters with the staff of this Committee and its Members and we would be happy to share with you the transcripts of the sworn testimony of Waste Management officials and of ourselves during the permit hearing before the Ohio Environmental Protection Agency.