The Secrecy Provision in Ohio's Brownfield Legislation

Testimony of D. DAVID ALTMAN On Proposed Rules For Ohio's Voluntary Action Program September 5, 1996 Ohio Environmental Protection Agency

Honorable Members of the Ohio EPA, I am David Altman, a lawyer from Cincinnati, Ohio, with a practice focused on environmental law, primarily the representation of families who live and own property near sources of pollution. I, also, represent local units of government, including cities, counties and townships, who wish to clean up pollution problems.

I am here to talk with you about the grave shortcomings of the proposed rules for Ohio's Voluntary Action Program ("VAP").

When I testified in Columbus about the then proposed Brownfield legislation, I pointed out the dangers of its proposed secrecy provisions. In my presentation tonight, I will illustrate how the dangers of the secrecy provisions are compounded by the proposed VAP rules.

The VAP secrecy provision defeats the right of families to know the factual information about pollution that threatens the quality of their lives and their enjoyment of their property. The bill creates an unprecedented privilege for the polluter.

In a nutshell, here is what is wrong: the VAP grants a new privilege to hide pollution from those who are environmentally underprivileged... the average family.

It is hard to believe that those who wrote this law ignored the lessons that we should have learned when hundreds of pollution secrets were finally uncovered at places like Fernald, Phthalchem, Elano and Hilton Davis -- just to name a few sites in Southwest Ohio!

I want to tell you a story about just one of the sites, a place in Ohio, that shows you what is wrong with secrecy and VAP's rules.

Let's look back to the 1950's... to a quiet farming area... A contractor, working for the U.S. Government at FERNALD, is approached by a group of local residents, mostly farmers...

The citizens have heard that there have been a few accidents when radiation has been released. "Tell us how much radiation has been released," the citizens request.

"It's a secret. The law says if it involves `national security' you have no right to know... We will only tell you this... we have reviewed the problem and it's no problem for you."

Turn now to the 1960's, a few farmers and some new home owners ask the same question... and get the same answer.

Now, it's the mid-1970's, a former worker who was injured in a radiation accident in the 1960's tells of releases of radiation, accidents and spills never before revealed... a TV station runs a story...

The government contractor hires a team of consultants... including famous professors who have done radiation research.

The consultants conclude that there is "no cause for concern."

In the 1980's, more facts about contamination are revealed. In response, the contractor dismantles several radioactive silos...

"The problem is solved," the contractor announces.

The citizens return and ask: "Is that the whole problem?"

"Yes," they are told.

"Can we see all of your tests?"

"No," they are told, "We don't have to under the law."

More facts about site-wide contamination leak out... Finally, the residents, convinced that the government has not protected them, resort to a law suit.

Only then is the cloak of secrecy lifted and the full magnitude of the problem revealed in a magnificent triumph of truth and right-to-know.

As a result, a site-wide cleanup is started and medical monitoring is instituted.

Unfortunately, the price tag of the past secrecy is yet to be determined. The latest study shows a significant increase of risk of serious disease due to past emissions.

Nonetheless, the people of Fernald, after decades, are finally allowed to know the true facts about their environment that impacts their lives and their property.

What lesson did Ohio's government learn from this triumph of citizens' right-to-know?

Several years after this victory, Ohio signed the VAP law, which includes the secrecy provision that turns the clock back on truth and right-to-know -- it turns the clock back to the 1950's, except that this bill does not even require a claim of "national security" to involve secrecy.

Under the VAP rules, the level of truth we had about Fernald in the 1950's would be the level at which the search for truth would end for the Fernalds of the 1990's.

Anything the owners of the "Fernalds of the 1990's" do not want anyone to know will be a permanent secret under the VAP, even in courts of law.

The VAP and its rules not only ignore these lessons but it reverses the right-to-know trend in state law and even under federal law. (See the USEPA budget rider that requires the EPA to follow state audit privilege laws.)

The secrecy provision is so intolerable that during the last month a new group has been forming -- Families Against Environmental Secrecy. It is made up of the families that live around Phthalchem, Elano, Hilton Davis and many other sites, including AK Steel in Middletown, Ohio.

Some of the charter members of that group are here with me tonight to testify about their recent experiences.

Here is an illustration of what can happen under the proposed VAP rules.

If an on-site sewer system or an underground coke oven gas line of an old, urban steel plant leaked benzene on the plant's own property near the fence line of its urban neighbors and as a result of that leak nearby homes filled with fumes, the rules require very little to be done. This steel company could black-top over its contaminated property, put a "Don't drink the water" restriction in its deed, and calculate a secret risk assessment to "determine" for itself the threat to off-site people. If the steel company is satisfied with its risk assessment calculated or derived from the data and assumptions that it chooses to use, that there will not be too many "excess" cancer deaths, no cleanup will be done. In addition, neither neighboring families nor the Ohio EPA will get all the data concerning the spill and will never need to be told about the risk assessment. The only data that would need to be disclosed is the data which supports the steel company's position and conclusion. Finally, if the steel company has a document retention program which requires disposal of "unused data" after six months, the law actually allows the destruction of that data!

This illustration is not basically different from the facts of case after case throughout Ohio and the country. Up until now, victims of pollution have always had a right to get (at the very least) the factual information about pollution. You will deny any semblance of fairness to the victim if you allow facts about pollution to be hidden under the cloak of "audit privilege" or VAP secrecy. For example, under the Federal Environmental Audit Policy, while the analysis, conclusions and recommendations resulting from an environmental audit are considered part of the audit report and under some circumstances need not be disclosed, the data obtained by, or the testimonial evidence concerning, the environmental audit are never shielded from disclosure.

In fact, the extensive national debate on audit privilege ended in an entirely different conclusion than that reached by the VAP and its rules. Eighteen months of debate failed to produce any evidence that a privilege was needed. Use of environmental audits and cleanups have expanded rapidly over the last decade without the stimulus of a privilege or secrecy. Concern about confidentiality ranked as one of the least important factors in business decisions to do audits or cleanups.

Privilege, by definition, invites secrecy when what is needed is openness -- openness to build public trust in industries' ability to self police. Current U.S. law reflects the high value that the public places on fair access to facts.

Finally, the search for the facts about threats to your home and your family are the most fundamental and sacred duties of family members. The search is difficult enough for the families that live around places like Fernald, Hilton Davis, and Phthalchem. If you do not change the VAP rules, you will make that search virtually impossible.