Judge Orders DEP to Release Water Pollution Data

Charleston Gazette
22 October 2014
By Ken Ward Jr., Staff writer


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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