Subject: Are States the biggest part of the information gap?
Are States the biggest part of the information gap?
In my experience they are. Working in the Great Lakes Region, mostly on air pollution issues, I feel rather lucky because the Region 5 website provides quite a bit of information on my issue. The Region seems also to have lead the states to provide much of the information I want about air permits on the web.
Nonetheless, there are many cases where I have to rely on a State for information, and it's usually not a pleasant experience.
My feeling is that we lose alot when authority for a federal program gets delegated to a State.
First off, the Freedom of Information Act does not apply to the State program.
Ironically, this can be used to keep people from getting information. In Ohio, the Ohio EPA used to have(perhaps still does) people designated as Freedom of Information Act contacts. There was a fact sheet that the Agency produced for the public, saying "here's where you can file your FOIA request". I tried this once and got no reply. I finally called the guy and he said "We're not subject to FOIA". I asked why then was he the FOIA contact. He said, "I don't know. They just told me I was".
Loss of FOIA can also means no fee waivers for copies. It might also mean the agency can refuse to mail you information, requiring you instead to drive all the way across the state to the district office that has what you want.
Second, States have learned that they can occassionally ignore some of the provisions for notice and requirements for public participation. I've had the State of Ohio tell me they could not provide a full thirty day comment period, as was required by law, on a submission to EPA, because of a court imposed deadline. The deadline was imposed because the State had missed the previous deadline established by rule. Should the State be allowed to flaunt the public participation provisions because of its own ineptness. I don't think so. EPA, however, let them slide.
Similarly, the State of Ohio maintained for a year that it was not required to provide notice of draft Title V permits to people who wrote requesting to be on a mailing list. Though they eventually changed the policy, for one year the State was in violation of the Part 70 requirements for a delegated Title V program.
There is also a problem with State agencies purging files. Many state agencies keep only the minimum information in the file; smoking guns get disposed of.
I have also a problem with some arrangements between the States and the Regions. I don't know how serious they were, but at one point Region 5 seemed to be willing to let the States be the keepers of compliance certifications under Title V, though the rules require them to be sent to EPA. In light of the FOIA problems discussed about, this could be trouble. Can I FOIA a document the EPA is supposed to have, but doesn't.
Similarly, what if the State has a database of applications that the U.S. EPA can access, can I FOIA that? I would argue that, at the very least, I should be able to FOIA a document that EPA has looked at electronically. Electronic data transfer saves paper, but it should not be used to circumvent the Freedom of Information Act.
Some States also stall a file review until the very end of a comment period, so there is no time to digest the information.
A few suggestions:
1. I believe EPA needs to provide more explicit instructions to the States about what information they must provide, requiring informaation that is needed by citizens as part of a public participation process be locally available and at reasonable or no cost. Primary documents, like draft permits and applications for permits should be free, mailed to the person who requests them. Other material from the file might require a reasonable fee. The whole file should be locally available during a comment period, for the entire period of public comment.
2. The EPA should not allow the states to provide information to the EPA in a manner that is not accessible to citizens. The EPA should also require the States to provide more information in electronic format, which can be put on the web. What I'm getting at is, with things like draft permits and permit applications, EPA should require States to submit them electronically, in a form that can be put on the web. If the State doesn't put them on the web, the EPA should do it for them.
3. The EPA must be willing to reject State submissions that have not fulfilled public notice and participation requirements.
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