DEP Secrecy II: Protecting PPG

I wrote last week about how the state Department of Environmental Protection didn’t want to give me a copy of the “plan” submitted by PPG Industries for fixing mercury water pollution violations at the company’s Marshall County plant.

Well, yesterday, I got a response back from DEP General Counsel Ray Franks (left) to my formal request for that document …  so I thought I would share it with readers. I’ve posted the response letter here.

By way of background, remember that this “plan” was enough to convince DEP Secretary Randy Huffman to file a friendly lawsuit against PPG, to help the company fend off a troublesome legal effort by some pesky environmental groups to force the company to follow the Clean Water Act. It was only the latest in a long line of efforts by DEP to help PPG delay major reductions in the mercury emissions from the Natrium facility.

But when I asked DEP spokeswoman Kathy Cosco for a copy of this great plan, she told me:

… Is a working document that the agency is using in the deliberative process of negotiating a settlement agreement with the company. Therefore, at this time it is not a document that we can share, even in response to a FOIA request.

I expected that, because DEP enforcement chief Mike Zeto loves to pretend that every single piece of paper in his office that might have some vague bit to do with “enforcement proceedings” is off-limits to the public.

But apparently Franks was starting to understand that Zeto’s on shaky ground, because his response to my request indicates he’s cooked up some other excuse not to tell the public what PPG’s plan is …

Now, Franks is claiming that this plan is some sort of secret squirrel trade secret document that DEP isn’t allowed to release, for fear of giving PPG’s competitors their private business information.

Franks cited W. Va. Code § 29B-1-4(1), which exempts from disclosure:

Trade secrets, as used in this section, which may include, but are not limited to, any formula, plan pattern [sic], process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article or trade or a service or to locate minerals or other substances, having commercial value, and which gives its users an opportunity to obtain business advantage over competitors.

Now, first of all, Franks makes no effort in his response (read it for yourself) to explain exactly how releasing a plan that details how PPG would comply with pollution laws would fall under this definition of a trade secret.  You also have to wonder how this information being released would harm PPG’s competitiveness, given that PPG’s plant in Natrium is one of the lone holdout chlor-alkali facilities in the country to cling to ancient technology, rather than switching to modern methods that don’t emit any mercury.

Also, Franks insists in his letter that the trade secrets exemption forbids DEP from releasing this plan. Even if the exemption applied, though, West Virginia does not require  agencies to withhold potentiall exempt records; it simply allows agencies to do so. Even if the exemption applied here, DEP could still release the documents if it wanted to operate in a transparent manner.

Incredibly, Franks also cited another reason that he says the document won’t be released — apparently, DEP officials have scribbled notes all over every single copy that the agency has. He says that makes it an internal memorandum that is exempt from release. If that’s true, couldn’t state workers simply scribble some notes onto every single piece of paper in every government file, and thereby never have to give the public anything?

Finally, it’s also interesting that this “plan” submitted by PPG was only two pages long. And, Franks was refusing to release only the first page, which apparently constitutes the whole of the company’s “plan.” OK … one page … if that’s a plan for fixing the PPG plant’s pollution problems, how small must the typeface be? Or, is it not really a very detailed and comprehensive plan? We don’t know, because Franks won’t let the public see that page of the document.

But, Franks was kind enough to release the second page. What was on it? A list that showed PPG violated its monthly average discharge limits for mercury four times during an 18-month period and violated its daily maximum mercury limits seven times during a similar period.