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Letter to U.S. EPA:

Ohio's Voluntary Action Program and Environmental Justice

June 10, 1999

Francis X. Lyons
U.S. EPA Regional Administrator, Region V
77 West Jackson Blvd.
Chicago, Illinois 60604

Dear Administrator Lyons:

We understand that Ohio may, again, be seeking a Memorandum of Understanding (MOU) with USEPA for its Voluntary Action Program (VAP). We wanted to alert you to the strong public opposition there is in Ohio against the Ohio VAP law.

Unfortunately, Ohio's VAP goes far beyond the traditional "brownfields" principles. We find the Ohio VAP law to be fatally flawed, as it not only is unprotective of the environment and public health but it actually allows serious environmental problems to persist. Moreover, the USEPA should, as matter of public policy, never enter into an MOU with a State whose program has a secrecy provision as does Ohio's. Ohio's law allows facilities to keep secret all the facts they learn about the pollution coming from that facility. Such facts are kept secret--
  1. from the OEPA [and therefore never make it into the public record],
  2. from the affected community which must bear the consequences of that pollution, and
  3. from the courts, as information generated at a VAP site is not discoverable or admissible in any litigation against the facility.
The USEPA should not condone this treatment of the public by entering into an MOU with OEPA on its VAP law.

Another of the many problematic elements of Ohio's VAP is its use of the Urban Setting Designations (USD) mechanism for allowing contaminated groundwater to persist, unremediated, in a community. Specifically, we wish to alert you that the VAP and Ohio EPA's use of the USD fails to protect what are often largely minority, low income urban populations to the same degree it protects more suburban or rural populations. As such, the Ohio's VAP and its USD mechanism would violate the ENVIRONMENTAL JUSTICE STRATEGY: EXECUTIVE ORDER 12898 signed by President Clinton on February 11, 1994 were Ohio's VAP a federally approved program or if it received federal funds.

As you know, each Federal agency must "make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations".

The long list of problems with the Ohio VAP include:
  • Lax cleanup standards
  • Use of "institutional controls" such as fencing off sites
  • Lack of full disclosure about contamination and exposures
  • Flawed risk assessment procedures
  • Groundwater is allowed to remain contaminated through the use of USDs and by "beheading" the plume
  • Lack of agency oversight
  • VAP conflicts with other environmental protection laws and programs (such as sole source aquifer, wellhead protection, and source water protection)
  • Failure to address all avenues of contamination (soil gas migration, affects on ecological receptors)

Too often, those with little money, influence, or education are financially forced to live next to polluting factories and bear the brunt of those problems. They will now have to live with the legacy of pollution which will never be cleaned up. Ohio's use of Urban Setting Designations is at direct odds with the Environmental Justice policy. It allows urban areas to remain contaminated, condemns thousands who are trapped by finances, background, race or class to live where the soil is contaminated, the groundwater polluted and where pathways of contamination such as soil gas migration and surface water recharge have never been evaluated and the full nature and extent of contamination is kept secret. In many cases, the trapped urban resident will be denied even the most basic means of survival, the ability to grow food and drink surface or well water. The air they breathe will continue to be more polluted that the "greenfields" whose development is subsidized by tax abatements, highway construction and home mortgage deductions.

Part of President Clinton's Executive Order requires that Environmental Justice Strategies ensure greater public participation. Under Ohio's VAP, there is no public participation in the decision making about the fate of contaminated sites, selection of cleanup standards or even identifying one's own community under the Urban Setting Designation. Moreover, without full information, there could be no informed public participation. The secrecy provisions of Ohio's VAP and Ohio's audit privilege law make a mockery of public participation.

The President's Executive Order also calls for improving "research and data collection relating to the health of and environment of minority populations and low-income populations". Again, secrecy provisions make this impossible.

The Environmental Justice Strategy calls for environmental human health research which "include diverse segments of the population in epidemiological and clinical studies, including segments at high risk from environmental hazards, such as minority populations, low-income populations and workers who may be exposed to substantial environmental hazards." Ohio's VAP sites and USDs will present unquantifiable hazards and risks which will not be able to be accurately accounted for in such studies.

The Strategy requires that "environmental human health analyses, whenever practicable and appropriate, shall identify multiple and cumulative exposures." Secrecy makes such identification impractical. Similarly, the Environmental Justice Strategy's requirement to "collect, maintain, and analyze information assessing and comparing environmental and human health risks borne by populations identified by race, national origin, or income" cannot be met in Ohio where secrecy controls.

The economic and social implications of Ohio's VAP law are serious and adverse for its minority and low-income populations. Minorities and low-income persons, disproportionally located in urban areas which may now be marked as Urban Setting Designations, are discriminated against because less stringent cleanup standards are applied and contamination is allowed to persist. The very fact the Ohio VAP singles out urban settings as areas where environmental contamination will be allowed to persist, unremediated, is at odds with the mandates of the Environmental Justice Executive Order. As such, it is our position that the USEPA cannot enter into an MOU with Ohio regarding its VAP as long as the VAP law includes the Urban Setting provision, pollution secrecy (in the VAP and in the audit privilege law) and lax cleanup requirements.

Should USEPA enter into a Memorandum of Understanding with Ohio on its VAP law and agree not to take action against sites that receive a No Further Action Letter and Covenant Not to Sue from Ohio, USEPA would be abrogating its enforcement authority in areas with minority or low income populations, rather than promoting enforcement as the President's Executive Order requires.

Because the issue of whether the USEPA should enter into an MOU with Ohio regarding its Voluntary Action Program is one that effects communities throughout Ohio, any process the USEPA uses to address this issue should include representatives from Ohio communities as well as environmental organizations. Discussions between USEPA and Ohio on any VAP MOU should not be held behind closed doors. We, therefore, ask that you: 1) notify us if the USEPA is contacted by Ohio EPA representatives to begin discussions on a USEPA MOU, and 2) make us participants in any discussion which may ensue on this matter.

If you have any questions regarding the positions set forth in this letter, please call us. We look forward to hearing from you soon on this matter. (text of Lyons June 29 reply)

Sincerely,

Amy J. Leonard, Esq., Chair
Environmental Law Section
Ohio Academy of Trial Lawyers
15 W. Eighth Street Cincinnati, Ohio 45202
513-721-2180

Marilyn Wall, Conservation Chair
Ohio Chapter Sierra Club
816 Van Nes Drive
Cincinnati, Ohio 45246
513-771-5087

Jane Forrest, Environmental Projects Director
Ohio Citizen Action
P. O. Box 743
Dayton, Ohio 45405
937-277-7194

Mike Fremont, President
Rivers Unlimited
1207 Grandview Ave, Suite 302
Columbus, Ohio 4321
614-487-7511

Marti Sinclair, Environmental Justice Chair
Ohio Chapter Sierra Club
11986 Elmgrove Circle
Cincinnati, OH 45240