Petition for Withdrawal of Ohio's Authorization to Enforce Federal Laws

Amended Petition for Withdrawal of the Authorization of the RCRA SUBTITLE C and the Approval of CAA TITLE V and FWPCA NPDES and General Permit Programs of the State of Ohio

April 16, 1997

Ohio Citizen Action, Ohio Environmental Council, Sierra Club and Rivers Unlimited, Inc. (jointly referred to as "Petitioners") hereby petition the Administrator of the United States Environmental Protection Agency (USEPA) to initiate formal proceedings to withdraw Ohio's authorization and approval, respectively, to administer Subtitle C of the Resource Conservation and Recovery Act (RCRA); Title V of the Federal Clean Air Act (CAA); and, the NPDES and general permit programs of the Federal Water Pollution Control Act (FWPCA).

This petition is being made pursuant to the Administrative Procedure Act [specifically, 5 U.S.C. §§ 553(e) and 555(e)] as well as RCRA, the CAA and the FWPCA, to request the Administrator to exercise her authority under CAA 42 U.S.C. § 7661a and 40 C.F.R. § 70.10 (c); RCRA 42 U.S.C. § 6926(e) and 40 C.F.R. § 271.22; and FWPCA 33 U.S.G. § 1342 (c)(3) and 40 C.F.R. §§ 123.63 and 123.64. The withdrawal of state authority is necessitated by the excessively broad and retroactive secrecy and immunity provisions of Ohio's recently passed "Audit Privilege Bill" (Ohio Rev. Code § 3745.70 et seq.). These provisions render Ohio's investigative and enforcement authorities ineffective and, therefore, destroy Ohio's ability to maintain its state programs. The Petitioners request the opportunity, as part of the petition process, to further demonstrate how and why this is so.

INTEREST OF PETITIONERS

Petitioners are non-profit environmental, community and civic organizations which seek to enhance not only environmental quality of life but also the democratic process necessary to the effective operation of our system of law. Prior to the passage of Ohio's Audit Privilege Law, the Petitioners took an active role in arguing against this legislation for the same reasons set forth in this petition. Petitioners each have members who have an interest in the enforcement of RCRA, FWPCA and Title V of the CAA.

By way of illustration, Petitioners' members live in the vicinity of sites and facilities regulated by RCRA and the CAA. These members have the expectation that neighboring industries and other regulated entities will maintain compliance with the law. Because the State of Ohio is empowered to implement FWPCA NPDES program, RCRA's hazardous waste program and Title V of the CAA, these members are forced to rely on the State of Ohio to investigate the compliance status of those facilities so that noncompliance can be detected and remedied.

WHY FEDERAL ACTION IS NEEDED

Under 40 C.F.R. § 271.22, 40 C.F.R. § 70.10(c), and 40 C.F.R. § 123.63, the Administrator is to withdraw state authorization to implement programs under Subtitle C of RCRA, Title V of the CAA and the FWPCA where those programs no longer met the requirements imposed by federal law. State programs are to be withdrawn where the State legislature acts to limit state authority or where the state enforcement programs fail to comply with the state program requirements set forth in the Code of Federal Regulations.

On December 12, 1996, the Environmental Audit Privilege Bill was signed into law in Ohio. This new statute allows a regulated entity to keep secret all material collected as part of an environmental "audit". The term "audit", however, is so broadly defined it includes any self-evaluation designed merely to improve compliance or identify noncompliance. This privilege hides from the government regulators, as well as any private attorney general and affected communities, facts revealing violations of RCRA, the CAA, the FWPCA and the associated state programs.

The audit privilege provides that the audit information:

"is not admissible as evidence or subject to discovery in any criminal, civil, or administrative proceeding and a person who possesses such information as a result of conducting or participating in an environmental audit shall not testify in any criminal, civil or administrative proceeding concerning the contents of that information." O.R.C. § 3745.71(B).

Because the State would not be able to learn about violations or use evidence of those violations in court, the "audit" privilege actually provides a complete de facto immunity for those violations of law revealed in an audit. This not only compromises Ohio's ability to impose civil penalties for violations revealed by these audits, but it also restricts the State's ability to: 1) secure injunctive relief, and, 2) bring criminal actions because the State would not have access to key evidence. This de facto immunity is all the more devastating to the State of Ohio's ability to enforce RCRA, the CAA, and the FWPCA because the privilege attaches even if the violator never discloses the violation to the State and never achieves compliance.

Immunity is mandatory for a polluter's self-determined "solution" to a problem revealed by a past or current "audit." The polluter will be granted immunity even when the solution amounts to nothing more than shifting the pollution to a different medium (e.g., water to air).

One of the most fundamental elements for state programs is the broad information gathering powers and duties of the State. Not only are States required to have the right to gather information from regulated entities, but they have the duty to the public to actually obtain relevant information and to make that information available to the public. RCRA section 6926(f) is quite clear:

No state program may be authorized by the Administrator under this section unless:

  1. such program provides for the public availability of information obtained by the State regarding facilities and sites for the treatment, storage, and disposal of hazardous waste; and
  2. such information is available to the public in substantially the same manner and to the same degree as would be the case if the Administrator was carrying out the provisions of this subchapter in such state.

Where a state has granted regulated entities a far-reaching "super-privilege" for all information developed as part of a broadly defined "audit", that information can no longer, as a practical matter, be obtained by the state and, therefore, can no longer be made available to the public. Thus, information about the historic and current condition of the environment and the compliance status of regulated entities would not be "available to the public in substantially the...same degree as would be the case if the Administrator was carrying out the provisions of this subchapter...."

Ohio's law conceals behind a "privilege" relevant facts about the condition of the environment and facts about a company's compliance status. Neither citizens nor government will be able to obtain full disclosure of how many and what hazardous compounds are being released into the air, full disclosure of how much and what contaminants are being discharged into a neighboring stream and full disclosure of how much and what hazardous waste was improperly disposed of without a license. Now, in Ohio, all these facts will be kept secret from the affected public and state and local government in the exercise of their police power. This broad privilege will make it impossible for Ohio to satisfy its duty to the public to gather relevant facts and make those facts available for public scrutiny.

In addition, the retroactive application of the Audit Privilege Bill to historic environmental information (e.g., facts about pollution gathered in the 1960's, 1970's, 1980's and early 1990's) is a windfall to the cause of secrecy and erects a further barrier to state enforcement. RCRA section 6927(a) provides the states with a federal right of access to all records regarding wastes for purposes of enforcement. Ohio's new privilege throws away that right of access.

RCRA § 6927(a) provides that:

For purposes of developing or assisting in the development of any regulation or enforcing the provisions of this chapter, any person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled hazardous wastes shall, upon request of ...any duly designated officer, employee or representative of a State having an authorized hazardous waste program, furnish information relating to such wastes and permit such person at all reasonable times to have access to and to copy all records relating to such waste.

Ohio will no longer be able to obtain the same scope of information envisioned by RCRA because it has just made an all-encompassing category of important information protected by a "super-privilege." Nor do the circular exceptions to the new "super-privilege" protect Ohio's ability to gather the information envisioned by Federal law.

Similarly, Title V of the CAA envisions that states will impose permit conditions providing for sufficient access to documents and sufficient reporting requirements to ensure compliance with the federal air law. See 42 U.S.C. § 7661c and § 7414, generally. Because Ohio has created a super-privilege protecting all audit-related facts, Ohio will not be able to obtain the same scope of information which otherwise would have been available under the CAA to the state and, therefore, the public.

Finally, the FWPCA also requires that the state must be in a position to conduct the same information-gathering activities as the USEPA Administrator. See 33 U.S.C. 1342(b)(2)(B) and 33 U.S.C. 1318. Ohio, however, has limited its authority by enacting the Audit Privilege Law. Ohio is now prohibited from having access to the audit documents to which the USEPA Administrator would have access if the federal USEPA were implementing the NPDES and general permit programs. Because Ohio no longer has the same investigation authorities as the USEPA under 33 U.S.C. 1318, USEPA's approval of Ohio's NPDES and general permit program must be withdrawn.

Without the ability to gather relevant information, the State will no longer be able to diagnose the full nature and extent of any given violation. Even if the specific monitoring result revealing a violation is required by law to be disclosed to the State and, thus, falls outside the audit privilege, the State will not have access to any of the related information it needs to diagnose the significance of the violation. This includes information on how long the violation persisted; how long the violator knew of the violation before action was taken; the cause of the violation; and whether that violation it is part of a pattern of conduct by the violator.

Other fundamental problems with Ohio's Audit Privilege Law which require the withdrawal of Ohio's authorization for maintaining its state programs under RCRA, Title V of the CAA and the FWPCA include:

The audit privilege applies even where there is an imminent and substantial endangerment to health, welfare or the environment.

The term "audit" is so broadly defined it would cover virtually any document or testimony concerning any task, including any review of an operation, which reveals a violation.

The privilege applies retroactively to hide past facts about pollution, including how long violations have persisted.

The Audit Privilege Law also provides an explicit immunity from all civil penalties for violations revealed in audit reports, regardless of how long the violation has lasted, the magnitude of the environmental and public health consequences of the violation and without regard to the economic benefit achieved by the violation. O.R.C. § 3745.72.

Because of these features of the Audit Privilege Law, the State of Ohio no longer satisfies the minimum criteria necessary for it to implement its state programs under RCRA and Title V of the CAA and FWPCA. Thus, the Petitioners request that the Administrator of the USEPA initiate proceedings to withdraw Ohio's authorization to: 1) implement its state program in lieu of RCRA, 2) administer Title V of the CAA; and 3) administer the NPDES and general permit program under the FWPCA.

OHIO'S RCRA PROGRAM NO LONGER MEETS MINIMUM FEDERAL STANDARDS

RCRA 42 U.S.C. § 6926(b) allows states to implement their own hazardous waste programs in lieu of RCRA as long as those programs meet minimum standards set forth in RCRA § 6926 and 40 C.F.R. part 271. Ohio has been authorized to administer its hazardous waste management program in lieu of RCRA subtitle C as identified in 40 C.F.R. § 272.1800 et seq. Ohio's base program was approved effective June 30, 1989 with the revisions thereto approved June 7, 1991 and August 19, 1991. This authorization, however, shall be withdrawn if the state program at any time fails to satisfy the minimum requirements. RCRA 42 U.S.C. § 6926(e). One of the key requirements a state must meet to retain RCRA authority is to have adequate investigatory and enforcement authority to carry out its program. Given the passage of Ohio's Audit Privilege Law, Ohio no longer has the adequate investigatory and enforcement authority required by 40 C.F.R. § § 271.15-271.17.

Ohio's Environmental Audit Privilege is directly contradictory to USEPA's regulations governing state programs in the following areas:

1. In addition to violating RCRA § § 6926(f) and 6927(a), as discussed earlier, Ohio's privilege violates 40 C.F.R. § 271.15(b) and (c) which requires states to have access to relevant information not specifically required to be supplied by regulated entities.

Under Ohio's Audit Privilege Law, the State will no longer have access to any audit information not specifically required to be submitted to it by law. However, under 40 C.F.R. § 271.15(b)(2), states must have adequate inspection authority designed to allow each state to:

i) determine compliance,
ii) verify the accuracy of information submitted by the permittee or other regulated entities, and,
iii) verify the accuracy of sampling, monitoring and other methods used to develop the information submitted to the agency.

Similarly, states must also have the authority to copy all records regarding compliance, as mandated in 40 C.F.R. 271.15(c).

The audit privilege eliminates all of this authority. While the privilege by definition does not attach to the reports specifically required to be submitted to the state by another law, it would cover all information held by the regulated entity which "audits" the accuracy of those reports.

This includes any analysis of those reports, or any subsequent or prior testing done to verify the results contained in those reports or which further delineates the full extent of the violations. This includes whether it was a "knowing" violation. For example, any monitoring done in-between the periodic monitoring required by law would be designed to "identify" noncompliance and remain privileged. Those violations would be able to persist, unenforced and, as a practical matter, unenforceable by Ohio.

This investigative authority is the critical first step to having an adequate enforcement program. Meaningful investigations are necessary so the state many gather sufficient evidence to be used in court to secure the appropriate relief, whether it be injunctive relief (to stop the violation and/or remediate the resulting harm) or criminal or civil sanctions as envisioned by the law.

2. Because Ohio's audit privilege unduly limits the state's access to facts showing the violations of law, it provides a de facto immunity and destroys any meaningful ability of Ohio to enforce its state program.

The de facto immunity discussed earlier stems from the broad application of the audit privilege which prevents important evidence of violations from being discovered and used by the state officials and public in an enforcement action even if the regulated entity never corrects the violation and achieves compliance with law. This de facto immunity means the state of Ohio no longer meets the criteria under 40 C.R.F. § 271.16. Specifically:

a. Ohio's law compromises Ohio's ability to restrain, "immediately and effectively", unauthorized conduct which is endangering or causing damage to public heath or the environment as required by 40 C.F.R. § 271.16(a)(1).

The immunity and privilege prevents the state from taking immediate and effective action against violators. It prevents the state from even learning about the full nature and extent of the violation and prevents it from using evidence of the violation in a court action to enjoin the violating conduct and obtain compliance.

Moreover, the privilege applies even if the violations are "endangering" public health or the environment. Under Ohio's law, the value of secrecy outweighs the value of preventing exposure to danger until the danger ripens into a threat of immediate harm, i.e. Ohio only has access to the privileged information if it shows it has a "substantial need" for the information "to protect public health, safety or to prevent imminent and substantial harm to property or the environment". Requiring a showing of imminent and substantial harm (i.e. actual injury) is a much greater burden than showing an "endangerment" (i.e. risk of harm) and substantially undermines the state's authority to take action.

Moreover, the state must show that it has a substantial need for the information and that it could not obtain like information from other sources. This creates an undue burden on the already limited resources Ohio has available for bringing enforcement actions. The imposition of the requirement that the state make this required showing unduly delays its ability to immediately and effectively stop a violation which endangers lives or the environment. Stopping a bullet from being fired is a more effective deterrent to injury than hoping you can intercept the bullet in flight.

b. Ohio's law prevents Ohio from securing injunctive relief as required under 40 C.F.R. § 271.16(2).

The criterion under 40 C.F.R. § 271.16(2) requires states to have clear and unfettered authority to seek injunctive relief. However, because of the de facto immunity provided by the audit privilege, the State of Ohio will no longer have the ability to gather the evidence, including documentation and testimony, to secure an injunction in court. Ohio's Audit Privilege Law invites regulated entities to lawfully hide evidence of their violations from the state and surrounding community adversely affected by those violations. These violations could continue, unchecked, because the privilege conceals such evidence of violations even if compliance is never "voluntarily" reached by the violator. Even if the state were to learn of the violation, it could not break the privilege and use that evidence in court when seeking an injunction to secure compliance. Without proof of a violation, obviously, no injunction could be obtained. The surrounding community is, therefore, left to bear the consequences of those violations, with no ability to look to the state for redress.

c. Ohio's law prevents the State from bringing criminal actions as required by 40 C.F.R. § 271.16(a)(3), including actions for "knowing" violations of the law as required by 40 C.F.R. § 271.16(a)(3)(ii).

The Ohio privilege prevents the state from obtaining proof of such knowledge or using evidence of such knowledge in court. Violations that were "knowingly" carried out would be identified in an audit and hidden from the state and public. That evidence could not even be obtained in discovery in a criminal case. Even if the state learned of a violator's "knowledge" of a violation, as revealed in an audit, that information would be inadmissible in a criminal proceeding. Thus, as a practical matter, the state lacks the ability to obtain appropriate criminal penalties as required by RCRA.

3. Ohio's law is contrary to 40 C.F.R. § 271.16(a)(3) which requires that state programs include the authority to impose civil penalties for all program violations.

Ohio's new immunity law takes away the State's ability to collect any penalties, as mandated by RCRA, for violations revealed in environmental audits. Thus, regardless of how great an economic benefit the violator gained by violating the law, that entity will not be assessed any penalty for that violation, but will be able to walk away with the economic benefit for the violation. Similarly, no penalties can be assessed for such violations regardless of how many years they persisted before "discovery" of violation by the audit, regardless of how severe the environmental and health consequences are and regardless of how egregious the conduct causing the violation was. Furthermore, the law applies to all audits conducted prior to January 1, 2001; hence, the Audit Privilege Law retroactively incorporates past audits. This makes its adverse impact even more far-reaching.

OHIO'S TITLE V PROGRAM NO LONGER MEETS MINIMUM FEDERAL STANDARDS

The CAA, 42 U.S.C. § 7661a allows states to implement their own Title V permitting programs in lieu of the federal program as long as those programs meet minimum standards set forth in 42 U.S.C. § 7661a and 40 C.F.R. part 70. On October 1, 1995, the State of Ohio was authorized to administer Title V of CAA, as identified in 40 C.F.R. part 70 Appendix A. This authorization, however, shall be withdrawn if the state program at any time fails to satisfy the minimum requirements. See 42 U.S.C. § 7661b(i)(4) and 40 C.F.R. § 70.10(c). One of the key requirements a state must meet to retain CAA Title V authority is to have adequate investigative and enforcement authority to carry out its program. See CAA, 42 U.S.C § 7661a(b)(5)(E), 42 U.S.C. § § 7661(c) and 7414 generally. Given the passage of Ohio's Audit Privilege Law, Ohio no longer has the adequate investigative and enforcement authority necessary to carry-out the federal mandate under Title V.

Ohio's Environmental Audit Privilege is directly contradictory to USEPA's regulations governing state programs in the following areas:

1. Ohio's audit privilege cripples the state's investigatory authority by curbing its ability to obtain the necessary information to verify compliance with the provisions of the CAA.

The audit privilege prevents the state from seeking disclosure of a broadly defined category of information whether as permit terms and conditions or otherwise.

As discussed previously in this petition, this, in turn, will prevent the State from learning about violations or gathering sufficient evidence to prove the violations in a court or administrative proceeding.

Moreover, it prevents the State from verifying the compliance status of a facility. For example, while the results of annual stack testing required by law would not be protected by the privilege, the "pre-test" audits performed before the "official stack test" would now be privileged. This greatly limits the ability of the state to evaluate the "optimal" conditions employed during the stack test and whether those "optimal" conditions are representative of real life operating conditions of that facility. A state which no longer, as a practical matter, has the ability to independently verify compliance certifications does not have adequate investigatory authority to implement Title V of the CAA.

2. The Ohio law grants a blanket immunity from all penalties for all violations revealed by an audit, regardless of such factors as the economic benefit and seriousness of violation.

The Audit Privilege Law's blanket immunity is directly at odds with the CAA section 113(e) which requires the state to take into consideration these and other factors when assessing penalties for violations. The blanket immunity actually rewards violators by putting them at an economic advantage over their competitors who spent the money to maintain compliance with the law in the first instance. The immunity also includes an immunity from violations of previous court or administrative orders. Thus, no penalties will result even if the violator previously violated the law and was specifically ordered to maintain compliance.

3. The Audit Privilege Law prevents Ohio from "immediately and effectively" restraining unauthorized conduct presenting an imminent and substantial endangerment as required by 40 CFR § 70.11(a)(1) and CAA section 110(a)(2)(G).

First, Ohio's Audit Privilege Law grants blanket immunity from violations discovered in audits and disclosed to the OEPA regardless of the degree of harm or risk of harm caused by the violation. This immunity is granted as long as the compliance is achieved "as soon as practicable" which could be as soon as monetary considerations allow despite the grave nature of the resulting endangerment. ORC § 3745.72(B)(3).

Second, as previously discussed, the audit privilege itself provides a de facto immunity since it prevents the state from having access to or use of the facts establishing the violation.

That privilege applies even where there is an imminent and substantial endangerment to health welfare or the environment.

4. The privilege granted in Ohio's Audit Privilege Law undermines the State's authority to secure injunction relief, in violation of 40 C.F.R section 70.11(a)(2).

As with RCRA, the de facto immunity granted by Ohio's Audit Privilege Law will, as a practical matter, prevent the state from learning about violations, and/or proving those violations in court to such a degree as to secure an injunction.

5. Similarly, Ohio's Audit Privilege Law provides a de facto immunity from criminal sanctions as well, in violation of 40 CFR 70.11(a)(3).

The USEPA criteria for state programs under Title V of the CAA requires states to have authority to recover appropriate penalties for criminal conduct, including "knowing" conduct. See 40 CFR 70.11(a)(3)(ii).

As described in the RCRA portion of this petition, Ohio's Audit Privilege Law interferes with the State's ability to gather and use evidence of "knowing" violations by allowing facts revealed during "audits" to be shielded from disclose and use in court.

OHIO'S NPDES AND GENERAL PERMIT PROGRAM
NO LONGER MEETS MINIMUM FEDERAL STANDARDS

The FWPCA, 33 U.S.C.§ 1342(b) allows states to administer their own permit program for discharges into navigable waters within their jurisdiction in place of the direct federal program only as long as that state administers its program in accordance with the requirements set forth in FWPCA law and regulations. FWPCA 33 U.S.C. § 1342 and 40 C.F.R. § 123 et seq.. On March 11, 1974 the State of Ohio's permit program was approved, as identified in 30 Fed. Reg. 26061, Tuesday, July 16, 1974. Subsequently, Ohio's NPDES general permit program was approved on August 17, 1992 as identified in 58 Fed. Reg. 7889 Wednesday, February 10, 1993. This approval, however, shall be withdrawn if the state program is no longer administered in accordance with the minimum requirements. See FWPCA 33 U.S.C. § 1342(c)(3) and 40 C.F.R. §§ 123.63 and 123.64. One of the key requirements a state must meet to maintain its state program is to have adequate investigatory and enforcement authority to carry out its program to the same extent that the Administrator could under the Federal program. FWPCA 33 U.S.C. § 1342(b)(1) - (9) and 40 C.F.R. §§ 123.26 and 123.27. Given the passage of Ohio's Audit Privilege Law, Ohio no longer has the adequate investigatory and enforcement authority required by these provisions.

Ohio's Environmental Audit Privilege is directly contradictory to USEPA's regulations governing state programs in the following areas:

1. Ohio's Audit Privilege Law prevents the State of Ohio from meeting the FWPCA requirement that States have access to information to at least the same extent the Administrator does under the Federal Program.

Under 33 USC § 1342(b)(2)(B), in order to maintain its state program, Ohio must have adequate authority to "inspect, monitor, enter and require reports to at least the same extent as required in Section 1318 of this Title". The Administrator, in turn, has broad information gathering abilities under Section 1318 of the FWPCA. This includes the authority to: "require the owner or operator of any point source to (i) establish and maintain such records, (ii) make such reports,.... and (v) provide such other information as [the Administrator] may reasonably require", as well as the authority to enter a facility to copy any records. This necessarily includes any environmental "audits" or audit related material which provide necessary information about the nature and extent of violations. Section 1318, in turn, also requires that this information be made available to the public subject only to the limited "trade secret" exception identified in that section. The State of Ohio, however, no longer has such authority since "audits" and "audit related material" can no longer be obtained from the owner or operators of point sources by the Ohio Environmental Protection Agency. In turn, those records, which contain important facts about the state of the environment, can now no longer be made available to the public as required by the FWPCA.

2. As with RCRA, Ohio's audit privilege violates the FWPCA mandate that states have access to relevant information not specifically required to be supplied by regulated entities so that it may "verify" compliance.

Under 40 C.F.R. § 123.26, states must meet the requirements for a "compliance evaluation program" in order to keep their state programs under the FWPCA. States must "have inspection and surveillance procedures to determine, independent of information supplied by regulated persons, compliance or noncompliance with applicable program requirements". See 40 C.F.R. § 123.26(b). As part of this program, the state must have the ability to "verify the accuracy of information submitted by the permittee and other regulated persons in reporting forms, and other forms supplying monitoring data". See 40 C.F.R. § 123.26(b)(2)(ii).

However, Ohio's Audit Privilege prevents state officials from having access to just this type of information. Given Ohio's broad definition of audit, and the fact the Audit Privilege Law only exempts from the privilege that specific information required to be made available to the state , state officials will not be able to obtain access to the "audit" material needed to verify the accuracy of the reported information.

3. Ohio's Audit Privilege Law destroys Ohio's ability to meaningfully enforce the NPDES program.

The FWPCA 33 USC 1342(b)(7) requires states to have adequate authority to "abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement."

Ohio's Audit Privilege Law violates this mandate in a number of respects. First, the de facto immunity created by the audit privilege prevents the State from acquiring or using at trial a broad category of evidence associated with the audit which would be needed to secure penalties or injunctive relief to stop the unlawful conduct. Moreover, because the facts about the violation can now be hidden under the broadly defined audit privilege, the State will not even be about to learn about the true nature and extent of the violation in the first instance.

Second, Ohio's Audit Privilege Law contains an express absolute immunity for violations revealed in an audit if "information" about such violation is submitted to the state and the violation ceases "as soon as practicable." See ORC § 3745.72.(B)(3). This is in direct contradiction to the FWPCA and its regulations which require that the State have the authority to:

1) impose civil penalties for violations, and
2) levy such penalties to the extent appropriate for the violation.

Because of the blanket immunity in Ohio's new law, the State no longer has the absolute authority to obtain penalties for all violations. Moreover, it cannot impose penalties appropriate to the violation since it can no longer consider such factors as whether the violation resulted in serious actual harm or imminent and substantial endangerment, whether there has been repeated noncompliance over a long period of time, whether there was a violation of a consent order, or whether the violator received an economic benefit over its competitors who spent the money and resource to meet the law.

Similarly, the State must have the ability to impose criminal sanctions against anyone who "willfully or negligently violates any applicable standards or limitations, any NPDES permit condition or any NPDES filing requirement" 40 C.F.R. § 123.27(a)(3)(ii).

However, because of the states' inability to obtain the audit related information now kept secret under the new Audit Privilege law, Ohio will be prevented, as a practical matter, from obtaining proof of such "willful" conduct. The very information which demonstrates that violations are done with the knowledge that makes them "willful" violations, will be shielded from disclosure under Ohio's new law.

Finally, for the reasons discussed in the RCRA and CAA sections, Ohio's de facto privilege prevents the state from securing injunctive relief as required under 40 C.F.R.§ 123.27(a)(2) and from "immediately and effectively" restraining any person from "engaging in any unauthorized activity which is endangering or causing damage to public health or the environment" as required by 40 C.F.R. § 123.27. In fact, the Audit Privilege allows dischargers to hide the evidence of violations even it they never actually achieve compliance. ORC § 3745.71(C)(8). Without admissible evidence of the violation, the State would be unable to secure injunctive relief.

CONCLUSION

As the USEPA has, itself, acknowledged, "[a]n excessively broad privilege could so interfere with the exercise of these [state enforcement] authorities as to render them largely meaningless by depriving the state of the ability to gather evidence needed to establish a violation". This is exactly the case with Ohio's Audit Privilege Law.

Ohio's Audit Privilege Law compromises Ohio's ability to investigate compliance, as required by USEPA state program regulations. This, in turn, prevents Ohio from being able to make available to Ohio Citizens important facts about the condition of their environment, including whether their neighboring industry is complying with the law. Without evidence of violations, Ohio cannot even learn about violations, much less obtain the necessary injunctive relief to stop the violations. Without the knowledge of or the use of the facts surrounding a violation, Ohio will not have the ability to immediately and effectively enforce the law. Ohio's enforcement authority is, in effect, negated.

Moreover, the explicit immunity against all civil penalties actually rewards violators by allowing them to keep the economic gain they acquired through their violations and by allowing them to escape penalties regardless of the level of harm their violations caused.

Thus, for the reasons set forth in this petition, pursuant to 5 U.S.C. § 553(e), the Petitioners request that the Administrator of the USEPA begin proceedings to repeal or amend 40 C.F.R. part 272 and 40 C.F.R. part 70, Appendix A and withdraw Ohio's authorization to administer Subtitle C or RCRA and Title V of the CAA.

Petitioners also ask the Administrator of the USEPA to withdraw her approval of the State of Ohio's NPDES and general permit program under the FWPCA. The Petitioners request the USEPA to commence withdrawal proceedings against Ohio in accordance with 40 CFR 271.23(b)(1), 40 C.F.R. § 70.10(c) and 40 CFR §§ 123.63 and 123.64, respectively.

The Petitioners stand ready to further demonstrate to the USEPA how the new law disables Ohio's ability to enforce RCRA, CAA and the FWCPA.

Respectfully Submitted,

D. David Altman 0021457
Amy J. Leonard 0040611
Altman & Calardo Co., L.P.A.
414 Walnut Street, Suite 1006
Cincinnati, Ohio 45202

ON BEHALF OF PETITIONERS