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Comments and Testimonies
CLEAN
AIR COUNCIL COMMENTS CONCERNING
PENNSYLVANIA DEP INTERIM PUBLIC ACCESS TO INFORMATION POLICY
(DOCUMENT ID # 012-0200-003, 32 Pa. B. 6311)
FEBRUARY 20, 2003
Clean Air Council is a nonprofit, environmental and public
health advocacy organization that seeks to protect everyone's
right to breathe clean air. Incorporated in 1967 and operating
in both Pennsylvania and Delaware, the Council currently
has 7,000 dues-paying members.
In furtherance of its mission, the Council
is particularly mindful of the place governmental agencies,
such as the Department of Environmental Protection (DEP),
have in keeping the air clean and safe. While statutes like
the Federal Clean Air Act and Pennsylvania's Air Pollution
Control Act set out general standards and objectives to
safeguard air quality for the public, it is agency actions
that often have a direct impact on local communities. As
a result, the Council firmly believes the public ought to
be fully involved in any significant agency decision-making,
such as rulemaking or permit approvals. In order to have
meaningful involvement, the public must be adequately informed
about what it is an agency is deciding. This is why the
Council is concerned about the DEP's Policy towards public
access to information and recommends the following:
Expedited Record Requests
According to DEP's Public Access Policy document, Record
Officers are required to respond to record requests within
10 business days of receipt of that request (Section III,
Operating Procedures). Furthermore, if the Record Officer
determines that more time is needed to access the desired
information, because of geographical or legal constraints,
the Officer need only respond with a statement that up to
an additional 30 days of time may be needed to fulfill the
request.
For general record inquiries or file reviews,
this procedure may be adequate. But, when the public wishes
to provide a comment on a proposed permit approval or modification,
DEP's suggested response time could become an impediment.
Statutes, regulations and rules usually require at least
a 30-day comment period, which is often inadequate if it
takes the public more than 30 days to access recent records
of the facility in question in order to be able to offer
useful comments.
Assuming an individual were to receive
notice of a proposed action on the first day of its issuance,
which is certainly no guarantee, he or she would have to
immediately send out a written record request and wait up
to 10 days, plus additional days while the request and response
are in transit, to be able to schedule an appointment to
review the relevant documents. Considering that the Policy's
10-day rule excludes weekends, while the 30-day time limit
for comments usually include weekends, at best, half the
comment period is likely to be used up before an individual
has the chance to review records that could be relevant
to a pending permit action. In a worst case scenario, the
appropriate Records Officer informs the individual that
another 30 days is needed before the record request can
be responded to by which time the 30-day comment period
has already run. If DEP shares the Council's concerns that
agencies should consider fully informed public input before
makes decisions that could have ramifications to the surrounding
community, this inconsistency is troubling.
Moreover, this public access document
is only Pennsylvania DEP guidance and does not have the
same authority as statutory or regulatory requirements.
Where there is an arguable conflict between a policy and
a regulation, the Council believes that the policy must
be made more accommodating. In this instance, the general
response procedure set out in DEP's Public Access Policy
hinders the public's ability to comment on proposed permit
actions within legally prescribed time limits.
The Council suggests that a new procedure
for expedited record requests be included in the Policy.
Under this procedure, a record request that is being sent
in connection with a proposed permit action should be granted
some type of expedited status. In fact, as part of specificity
requirements, under Section II of the Policy, those requesters
who wish to get this special status should mention this
in their request and identify which permit they are intending
to comment on. The Council recommends that the Request Form,
under Appendix A, include a "check-off box" for
expedited record requests.
If a request is granted expedited status,
the operating procedure should be that the Record Officer
must give expedited record requests priority over normal
record requests and must respond within five (5) business
days. Once the Officer has ascertained what all the affected
bureaus and regions are, the Officer is responsible for
gathering all records immediately available to the Officer.
Rather than identifying documents thought to be non-public
records (NPR) and having to wait for Bureau Counsel to review
them, any documents the Officer believes is NPR will be
not be reviewable to the requester.
After this expedited gathering procedure
has been completed, the Officer shall send the requester
a response letter indicating which records are immediately
available for review. Records that are not immediately available
to the requester shall be noted in the letter with an explanation
that they will be obtained as soon as it is reasonably possible
to do so, and only upon written or verbal approval from
the requester. Similarly, records that the Officer believes
are NPR, will be submitted to Bureau Counsel for its input,
should the requester ask for this verbally or in writing.
If the requester has a disagreement with documents that
are deemed NPR after the Bureau Counsel has evaluated them,
the normal "Exceptions" procedures set out in
Section IV apply.
Separately from the expedited request
procedure, the Council suggests another policy for delayed
responses to record requests. If a requester receives a
response from the appropriate Records Officer indicating
more time is needed to fulfill the request, and due to the
need for such requested materials it becomes unreasonable
to expect an adequate comment be submitted in time to meet
the deadline, the Officer's letter should automatically
become a basis for extending the commenting period upon
notice to the Officer who is overseeing the permit action.
E-mail
The Council finds DEP's requirement that record requests
must either be mailed or faxed to also be a limiting factor
(Section II(B), Written Request). First, there is an inconsistency
in the Policy because under Section II(D), Specificity,
DEP can consider an email request. Moreover, the Council
believes that DEP would want to expand that ability of the
public to be able to access public records. The Council,
certainly understands why phone requests cannot be honored
as it is in the public interest to ensure that an individual's
request is accurately being filled. But, the Council sees
little difference between faxed and e-mailed requests. In
view of the time constraints imposed by permit comment periods,
as discussed above, the faster a request can be submitted
for processing, the better it is for the public. Considering
that even Pennsylvania courts now accept electronic filings,
the Council would expect that the DEP could follow suit.
Minor Requests
Finally, the Council is concerned that the language of the
Policy always rigidly requires setting up record review
appointments for requesters to access desired information.
The Council hopes it is understood that if all a requester
seeks is a relatively small document, this document can
be mailed to the requester with the requester being billed
any copying and mailing costs. In fact, the Council suggests
a section concerning "Minor Record Requests" be
added under Section III, Operating Procedures.
Respectfully submitted,
Eric Cheung, Esq.
Staff Attorney
Clean Air Council
Suite 300
135 South 19th Street
Philadelphia, PA 19103
215-567-4004
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