Judge Orders DEP to Release Water Pollution Data
Charleston Gazette
22 October 2014
By Ken Ward Jr., Staff writer
http://www.wvgazette.com/assets/PDF/CH62231022.pdf
A Kanawha County judge has ordered the state Department of
Environmental Protection to provide a public interest law firm
with a slice of agency data that shows recent water pollution
levels at coal-mining operations across West Virginia.
Kanawha Circuit Judge Charles King ruled that DEP officials
violated the state’s Freedom of Information Act when they referred
Appalachian Mountain Advocates to a searchable agency website
rather than providing the requested data in a spreadsheet or other
“usable electronic file.”
In a 10-page order, King ruled that extracting the file from DEP’s
water quality report database does not -- as DEP lawyers had
argued -- constitute creation of a new record, something agencies
like DEP are not required to do in response to requests for public
information.
“It is not as if plaintiff requested a list of the top ten coal
mines discharging iron into West Virginia’s waters,” the order
said. “Plaintiff has not asked defendants to perform any analysis
or manipulation of the information requested. Rather, plaintiff
merely seeks the unaltered data from defendants.”
Lawyers from Appalachian Mountain Advocates had sued DEP after the
agency turned down their request for the “discharge monitoring
report,” or DMR, data that mine operators are required to file
with the agency to disclose pollution levels under state and
federal clean water laws.
Last year, the group had asked DEP to provide the most recent
quarterly DMR data for all mines statewide. Agency officials had
previously provided similar data in an easy-to-use Microsoft Excel
spreadsheet format.
But this time, DEP said that to provide the requested data, the
agency “would have to research its databases and create a new
record.” DEP said the state FOIA “does not require an agency to
create or produce a record that does not exist at the time the
request is made.”
Appalachian Mountain Advocates responded that providing one slice
of data from a larger database doesn’t constitute creating a new
record. The group says what it asked for is the digital equivalent
of asking DEP to provide a small number of files stored in a large
filing cabinet.
Lewisburg-based Appalachian Mountain Advocates is the public
interest law firm and policy organization run by attorney Joe
Lovett. The group has litigated most of the major cases in recent
years over mountaintop removal coal mining, and has also been
focusing on federal court lawsuits against coal companies to
compel compliance with Clean Water Act permit limits and water
quality standards. Such suits have relied on DMR data that mine
operators filed with DEP to show violations of pollution rules.
During a hearing in September, King learned that the DEP website
the agency told Appalachian Mountain Advocates to use does not
allow users to filter discharge monitoring reports for particular
periods of time. The website requires users to examine one
pollution report at a time, rather than downloading hundreds or
even thousands of such reports in bulk for later analysis with a
computer program.
Reach Ken Ward Jr. at kward@wvgazette.com, 304-348-1702 or follow
@kenwardjr on Twitter.
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