The Network Against Corporate Secrecy
c/o The Good Neighbor ProjectFor Sustainable Industries
In a move that is adding new fuel to the grassroots fight against the environmental audit secrecy laws enacted in 19 states, the nation's largest waste management firm (WMX, also known as Waste Management, Inc.) has been demanding that community activists and government officials return incriminating evidence. The evidence, secured by low income community residents in litigation on their fight to clean up a Cincinnati landfill, led the Ohio EPA to issue an order to WMX on Wednesday, January 22 that toxic and explosive emissions be stopped.
But the company has been trying to recapture the documents, by claiming that a controversial new Ohio law renders them privileged against government and citizen access.
By securing environmental audits and other documents through discovery in the environmental permit review process, the community produced information that forced the state agency's hand. The Winton Hills and Winton Place communities have been trying to compel meaningful state action on toxic gases coming from the landfill for over a decade.
The ELDA landfill owned by WMX is located adjacent to a low income, 90% African American neighborhood -- one with the dubious distinction of being the most polluted neighborhood in the state of Ohio. Reverend Solomon Lundy, a leader of the local citizens group Communities United for Action, said he and other local residents have been working to clean up the dump and stop its expansion for more than ten years. In addition to odors inundating their neighborhood, residents suspected that medical problems in the area -- headaches, respiratory, rashes might be contributed to by the landfill.
"When we finally resorted to hiring a lawyer, we discovered that WMX was holding back secrets from us, and got a better idea of one likely source of our health problems. This is a matter of environmental justice. Thank God we finally know more details about the toxic gas and other pollutants coming from the landfill. Now what we need is for the Ohio EPA to issue a final order for landfill to be closed."
Said Lundy, "We local people have a right to get this information. To say we shouldn't have it, or should give it back to WMX, is like saying we should lay down and die."
Under the state's new environmental secrecy law passed in December 1996, any new environmental studies that qualify under the broad umbrella of "environmental audits" are deemed privileged, and therefore off-limits to citizens and government. In the Cincinnati case, WMX attempted to argue to the state of Ohio that documents prepared in the past should be "privileged" as environmental audits, and therefore not useable. Some of the documents in question were stamped "audit"; others were simply claimed to be "audits" after the fact. The documents dating back as far as 1988 contained, among other things, certain air emissions data, compliance reviews, groundwater information and maps. This oldest documents contain the first documentation of Waste Management's knowledge of the toxic, gas migration problem.
Though the privilege claim was denied by an agency hearing examiner, WMX lawyers apparently plan a similar claim of secrecy privileges in the citizens federal court action.
Sanford Lewis, chair of an 80 organization nationwide network opposed to audit privilege laws, said "WMX has been a leading national advocate of environmental audit privilege and immunity laws, claiming the laws are good for our environment. These latest moves by WMX show their true colors, and also how dangerous these 'right to know nothing' laws can be. These laws empower polluters to poison their neighbors with impunity, and therefore must be repealed." Lewis is the Director of the Cambridge, MA, Good Neighbor Project, which aids industrial neighbors and workers throughout the US in cleaning up local polluters. Additional info on GNP
In a related matter, environmental, community and labor organizations in Ohio and Colorado will file petitions with the EPA on Wednesday urging the agency to revoke the states' delegation for administration of federal environmental laws. The basis for the petitions is that the state laws will undermine necessary state enforcement capabilities. Press Release on Petitions
Waste Management's neglect was documented by the community in materials obtained through document discovery demands in the permit review process. The documents in question establish a factual pattern of events over time, track the landfill gases' migration from the facility into the community and show a history of WMX's alleged violations of federal environmental laws. According to David Altman, attorney for the local residents, the documentation also proves that the company was aware of its obligations to implement measures to stop the gas migration and yet failed to act.
Ohio EPA's order to halt toxic emissions from the landfill, though it deals with only a portion of the toxic releases, is the first such action by the agency in a decade and would never have occurred without the community's findings.
The community group's lawyer requested that Waste Management produce an assortment of materials through three rounds of depositions. Though Waste Management initially denied the existence of environmental audits, the initial discovery produced materials that referenced consultant reports and environmental audits. Confronted with these references, Waste Management officials admitted they had environmental audit documents but then refused to provide them. Finally, Waste Management was ordered to produce the materials by the state environmental hearing examiner. The materials Waste Management wanted to withhold proved essential to establish many key facts that ultimately compelled the state to order the emissions be stopped, according to Altman. Seemingly random pieces of data were put into context by the audits, compiling the larger picture of Waste Managements' neglect. The citizens have also filed a suit in federal court to bringing about environmental cleanup and enforcement.
This case is not the first time that WMX has attempted to evade responsibility for information discovered in audits. In the early 1990's an audit by WMX revealed that employees at its Lake View Landfill in Pennsylvania had been keeping two sets of books on the site, in order to receive more trash at the site than authorized by law. The company voluntarily disclosed the violation once detected, but was fined $4.1 million for the serious legal violations involved. The law in Pennsylvania provides a mandatory fine of $100 per ton of excess waste, and additional penalties for serious record keeping violations. The total potential penalty assessed in that case was reduced by 40% to account for WMX's voluntary disclosure. However, WMX has used this case and others like it to argue for total immunity from government prosecution for self-disclosed violations, and for privileges against audit document disclosure in citizen suits.
Earlier this month, WMX was awarded the "Greenwash of the Month" award by "Corporate Watch" due to company advertising which asserts it is the company's business to "raise environmental standards." A notice of this award is posted on the worldwide web. Ironically, according to WMX's annual environmental report, 1995 the Company's "unique Good Neighbor Policy" articulates WMX's "commitment to the communities in which it operates [including a pledge...] to provide information about facility operations."
David Altman, Attorney for local residents 513-721-2180
Rev. Solomon Lundy, Communities United for Action 513 541-2709
Kurt Waltzer, Ohio Citizen Action
(Petitioner to EPA on Ohio Audit Law) 614 263-4111
Sanford Lewis, Network Against Corporate Secrecy 617 354-1030
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