Opposition testimony:
S.B. 105, establishing a five-year statute of limitations for civil actions brought under certain environmental laws

February 14, 2002

Jennifer O'Donnell, Ohio Citizen Action
before the Ohio House Energy and Environment Committee

Good morning and thank you for the opportunity to testify. I’m Jennifer O’Donnell, Akron area director for Ohio Citizen Action, a statewide environmental organization with 100,000 members. We oppose S.B 105.

Ohio Citizen Action, the Sierra Club Ohio Chapter, and Rivers Unlimited and Ohio Public Interest Research Group have petitioned U.S. EPA to revoke Ohio EPA’s enforcement authority for the Clean Air Act, Clean Water Act, and the Resource Conservation and Recovery Act. The petition led to an unprecedented review of the Ohio EPA. Last November, hundreds of citizens from around the state packed the U.S. EPA public hearing on the investigation and testified about Ohio EPA’s failure to enforce environmental laws.

Citizens also filed affidavits about their experiences with Ohio EPA as part of the petition, and I would like to share with you excerpts from the affidavit of Robin Smith, who worked as an environmental specialist in Ohio EPA’s central office for eight years:

In general, management promoted an atmosphere in which escalated enforcement was to be taken only after the agency documented in writing that it had repeatedly gone out of its way to help the regulated entity come into compliance … Only as a very last resort were we to pursue enforcement.

… On occasions this approach was reasonable … However, the handholding approach was used in nearly all circumstances – even in cases where evidence would lead a reasonable person to conclude that the regulated entity had considered its options and had intentionally pursued a path that would put it in violation. Intentional decisions by regulated entities to operate out-of-compliance were undoubtedly made knowing that it was unlikely the Ohio EPA would take any enforcement action against them.

As a result of an atmosphere that discouraged enforcement, a compliant regulated entity was at an economic disadvantage compared with its non-compliant regulated entity. This resulted from the costs of compliance that were incurred by the compliant entity but not incurred by the non-compliant entity, and the non-compliant entity did not suffer economic consequences for being out-of-compliance because the Ohio EPA would not pursue fines and penalties. Put simply, why pay the costs of compliance when it was highly unlikely that Ohio EPA would take escalated enforcement action even against an egregious out-of-compliance member of the regulated community?

On more than one occasion regulated entities that were consistently and conscientiously in compliance verbally expressed to me a frustration over EPA’s lack of enforcement. They expressed the opinion that Ohio EPA’s lack of enforcement against out-of-compliance entities made it difficult for them to justify the expense and effort they had incurred to meet the spirit and intent of the law …

This legislation would exacerbate the problem described above in a number of ways.

  • Citizens who are first-hand witnesses to environmental violations have documented example after example of Ohio EPA’s failure to investigate their complaints, sometimes for years. The bill’s language is extremely vague as to when the clock starts ticking. The language should be clarified so that the limitations are triggered when the agency knows there has been a violation.

  • The Ohio EPA has repeatedly claimed that it is unable to bring enforcement actions because of a lack of resources. By making the statute retroactive, S.B. 105 would force Ohio EPA to clear the backlog of enforcement actions in just two years. No one in this room believes that the agency has the resources to do this. The bill should be amended to allow the state five years from the effective date of the legislation to bring an action.

  • Once Ohio EPA makes a referral to the Ohio Attorney General’s office, there is often a significant delay before a case is filed. Information provided by the Ohio Attorney General’s office to U.S. EPA shows that more than 49 referrals sat for over five years before a case was filed. There have been 287 referrals since 1995 that we have been unable to get information about. Yet the bill does nothing to ensure that the EPA or the Ohio Attorney General’s office act more quickly. It simply lets the clock run out.

This bill recognizes that Ohio EPA has failed to do its job, but fails to provide any remedy. It does nothing to solve the pollution problems that citizens from around the state have brought to Ohio EPA. It takes away the economic disincentive to violate the environmental laws. The effect would be something like pouring gallons and gallons of water through a funnel with a tiny opening – some water will go through the funnel, but most will spill over the sides.

If I were a polluter looking to cut corners, I’d like my odds of getting away with it under S.B. 105.

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