Sunday, April 27, 2014

EPA FOIA request becomes an involved exchange

While the whole process of trying to get answers from the Federal Government about its excessing and disposal of USCGC STORIS has been very problematic, the Freedom of Information Act requests for the Environmental Protection Agency related to STORIS have been the most involved.

That may have something to do with the high probability that STORIS contained undocumented materials that contained levels of PCBs above regulated levels that the EPA is supposed to be monitoring and controlling under the Toxic Substances Control Act of 1976. Despite the fact they were contacted by more than one person regarding STORIS likely containing PCBs, EPA did not inspect the ship and allowed her to be exported under U.S. Flag-designation to Mexico for dismantling – essentially a lesser-developed country with no infrastructure to properly dispose of PCBs. In short, EPA officials screwed up in a major way.

As with the FOIA request through GSA, EPA has denied my request for waiver of fees on December 13 related to the request based on their position that I did not respond to a December 3 letter which required an answer within 10 days. Problem is, I didn’t receive the letter until I asked repeatedly for it once I became aware of its existence through the denial.

Their second position is that they don’t feel that my stated intentions for the material is good enough for dissemination of the requested documentation. My general statement of media release is one basis for their denial. It’s not up to me to identify which news media are interested in the story. They should know anyway since there is at least one major investigative reporter who also has FOIA requests out. It’s up to the reporters to identify their efforts publicly when they are ready.

EPA’s position that posting the information on a Web site without interpretation is not good enough to meet their standards is without base. While the STORIS Museum Web site and Facebook pages no longer exist (since the organization itself will soon no longer exist with no ship to save), this Facebook page and its companion Web site at are more than adequate sources to convey the information about STORIS and her demise through the federal government’s a.) arrogance b.) ignorance/indifference c.) incompetence d.) bureaucratic politics. I’m leaning toward e.) all of the above.

The FOIA request from EPA is currently being reviewed in mediation through my appeal through the Office of Government Information Services at the National Archives.

The time frame outline and associated documents are as follows:
On November 4, 2013, I submitted a Freedom of Information Act request.

This request was finally acknowledged by EPA on November 22 by email and assigned ID No. EPA-R9-2014-001383.

EPA sent a denial of fee waiver via email on December 13 claiming that the waiver was being denied because I failed to respond within a 10-day window to a letter EPA claimed to have sent to me dated December 3. However, I had received no such letter. It is interesting that they were quick to fire off a denial before the full 10 days had officially expired, as I received the letter at 11:28 a.m., well before the end of business on December 13. They also had a snow day in Washington, DC, which closed all federal offices and included a weekend in their response period, so the 10 days was not actually 10 days. Nevertheless, it’s hard to respond to a letter that you never received.

I pointed this out in an email response sent to EPA FOIA HQ on December 14.

On December 18, I received an email response from Cynthia Floyd-Coleman from EPA FOIA that indicated that the December 3 letter had been sent via email. It was only after I pointed out again and again in following correspondence that I had not received the letter that I finally received a copy of the December 3 letter on December 19 via email from Ms. Floyd-Coleman.

The December 3 letter:

By that point, I had already written a full appeal to the December 13 denial of waiver that also served as a suitable clarification to meet the December 3 letter. I submitted this information by email on December 19.

Even as this process continued, I had asked that the collation of the requested materials should proceed. EPA was otherwise going to stop collecting the materials while the appeal process was underway.

I had to ensure EPA that if all avenues of appeal and mediation were unsuccessful, I would ultimately pay for the requested materials. However, I still assert that my position for waiver of fees is valid. This was borne out by the email exchange between Cynthia Floyd-Coleman on December 20, the copies of which are attached.

Right after the first of the year, I started receiving emails and phone calls from officials at EPA Region IX in San Francisco. This started with PCB investigator Christopher Rollins, with whom  I had discussions in October before STORIS was towed to Ensenada. It seemed odd that he would be calling, since he was a subject and source of the information I was seeking and not a designated FOIA representative of EPA.

The next thing you know, I’m being asked to set up a conference with Rollins, an asst. general counsel for EPA, and various public affairs officials for the agency. This did not feel right, as again, a FOIA coordinator should have been the person I was dealing with, not heavies through the legal and public relations departments, and as a group. There was no telling who was going to be listening in or what their intention was in going after me in numbers. It was ultimately decided to skip the conference and just go ahead with the written descriptions I had provided.

The final response from EPA denying the fee waiver was sent to me by email on January 17, 2014. Again, this is a baseless claim and in my opinion, an attempt to deter the release of the information that should be public record. A later estimate placed the administrative costs for the information at a sum not to exceed $850. That may change based on the time frame in which EPA is responding.

The appeal for mediation through OGIS was submitted on the afternoon of January 28:

And it’s still going on. Despite assurance that the material would be paid for, I still have not received one page of requested documentation from the original November 4 FOIA request, some 3 ½ months after the request.

A second request was just submitted and already another cycle of bureaucratic roadblocks are starting.

(Originally posted to Facebook on Feb. 21)

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