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Circumventing Transparency: Pennsylvania's Latest Shell Game to Protect Big Energy

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by Sierra Club

by WALTER BRASCH

David  M. Jacobson wanted a transcript of a public hearing conducted by the Pennsylvania Department of Environmental Protection (DEP), May 2. The public meeting was to allow persons to discuss a proposal by National Gypsum and En-Tire Logistics to build a tire burner plant in Union County that would burn about 100 million pounds of shredded tires each year, and convert part of that to electricity to benefit National Gypsum, with the rest taken to landfills. Jacobson is a member of Organizations United for the Environment (OUE), which objects to the plant because of the amount of pollutants that would be sent into the atmosphere.

The DEP was happy to provide the transcript. All Jacobson had to do was drive the 25 miles from his home in Lewisburg to the Williamsport regional office between 8 a.m. and 4 p.m., Monday through Friday. The transcript was not available online, nor would DEP send him a print copy.

He could view the transcript only at the regional office. He could take notes. But he couldn't copy it, photograph it, or scan it because, said Dan Spadoni, community relations co-ordinator, the transcript was copyrighted. State law allows individuals to copy, scan, and photograph public documents, and to request copies. Agencies, if requested, must provide documents by electronic means if possible, and may not charge more than 25 cents per page for a printed copy.

Jacobson says Spadoni, who  had conducted the hearing, told him the DEP "has a master contract" with Sargent's Court Reporting Service of Johnstown; Spadoni had requested Sargent's to record the public meeting. However, Spadoni claimed he didn't know any of the details of that contract.

The DEP has two levels of transcript payments--a higher payment by DEP to Sargent's, which allows DEP to publish the transcripts and make them available to anyone who wishes a copy; and a lower fee, where Sargent's retains all rights. For the May 2 meeting, DEP paid the lower fee.

Sargent's, which has a good reputation for accurate transcriptions, quoted Jacobson a fee of $192.85 for the 70 page transcript--about $2.75 a page.

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Jacobson then called Spadoni back. "It didn't set well with me that DEP would give up ownership to that transcript," says Jacobson. Spadoni abruptly responded, says Jacobson, "That's the way it works." Spadoni did not return several calls to explain reasons for the Department's policies.

Sargent's provided a copy of the transcript to the press at no charge--"It's at my discretion," said Sally Sargent, owner of the company. It later provided a copy by email at no charge to Jacobson because, "We decided to make a special exception and give you a free copy." On the cover of both transcripts is the warning: "Access to this email by anyone other than the intended addressee is unauthorized." The next day, Sargent's told Jacobson he could distribute the transcript without restriction. The issue, however, is that the DEP--not Sargent's--established the system that restricted free access to what should be a public document.

Terry Mutchler, executive director of the state's Office of Open Records (OOR), says in the five years since the creation of the OOR she has "never had a case in which an agency" contracted with a private company to take transcripts of a public meeting, and then, with the agency's approval, copyright the transcripts, limit its distribution, and charge fees higher than the state requirements for a public agency. "If this case comes to us," she says, "we'll have to examine it."

Jacobson could file a Right-to-Know request. From filing to final determination by the OOR, the process could take almost three months. Even if the OOR rules against a public agency, it can take the issue into court, using taxpayer-funded attorneys to challenge the Right-to-Know request, and can appeal to the state supreme court unfavorable decisions from county and state appeals courts.

The delay in being able to get proposals for building or waivers of rules is also a problem. Individuals who wish to view a company's proposal must first give DEP a two week notice, and then go to the DEP office during regular business hours. Those proposals are not online. Although DEP has posted a lot of information online, DEP told Jacobson, president of American Technology Partners, it will be 10 years before DEP completes plans to put all company proposals online. Jacobson says he asked several persons at DEP why the files were not available, and the most common answer was that the proposals were too many pages to convert files on the web. "If the proposals are too long," says Jacobson, "why not just split the large file into multiple smaller files; there are even free programs that will automatically split large files." He wonders, "why are we wasting money paying for the storage space for all these documents?"

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Vera Scroggins and Iris Marie Bloom, both of whom are active in researching and analyzing oil and gas company filings and DEP documents, also question the DEP's reluctance to scan documents and make them available online in an easy to search and understand manner.

Scroggins, who was one of the first to demand specific information from inspectors' reports that could connect fracking operations with water pollution, says to get some of the information she has to drive more than two and a half hours from her home in Susquehanna County to the DEP Williamsport office--and, even then, finds much of the critical information buried in paper files.

Scroggins and Bloom say it was easier to get information from the DEP prior to Tom Corbett becoming governor in 2011 and proclaiming he wanted to see Pennsylvania become the Texas of the natural gas industry. Bloom, executive director of Protecting Our Waters, Philadelphia, calls DEP actions, "incredibly inappropriate and incredibly frustrating."

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http://www.walterbrasch.com

Walter Brasch is an award-winning journalist and professor of journalism emeritus. His current books are Before the First Snow: Stories from the Revolution , America's Unpatriotic Acts: The Federal Government's Violation of (more...)
 

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