December 17, 2008
Ms. Patricia J. White
DEP FOIA Officer
601 57th Street S.E.
Charleston WV 25304
Tel: 304-926-0440
via email: Patricia.J.White@wv.gov
Re: FOIA Request for DEP Records
Dear Ms. White:
Pursuant to the Freedom of Information Act (FOIA), W.V. Code § 29B-1-1, et seq., and regulations of the Department of Environmental Protection (DEP) at Title 60, Series 2, CSR, the Keeper of the Mountains Foundation and the Sierra Club, Inc. request all public records relating to the following matter before the DEP:
The Class 5 Underground Injection Control Permit Application No. 1189-08-053 filed by American Electric Power (AEP), 1 Riverside Plaza, Columbus, OH 43215, in which AEP requests a permit to operate and maintain underground injection (UIC) permit to inject carbon dioxide through injection wells at AEP's Mountaineer Power Plant in Mason County, WV.
Without limiting the generality of the foregoing, we request:
(1) the complete February 2008 permit application filed by AEP, including all addenda, attachments and/or enclosures,
(2) the complete October 2008 (or other) decision of DEP to issue the requested permit,
(3) the draft permit for which public comments have been solicited,
(4) any documents constituting written communications, or recording verbal communications, between DEP and AEP relating to the requested permit,
(5) any documents constituting written communications, or recording verbal communications, between DEP and any other government entity (international, federal, state, county or municipal) relating to the requested permit,
(6) any documents constituting written communications, or recording verbal communications, between DEP and non-governmental organization (other than AEP) relating to the requested permit,
For purposes of this request the term "public record," whether singular or plural, means any writing, recording, photograph, whether original or duplicate, and includes, in addition to the foregoing, any words, numbers, or other data or information, whether produced originally on or copied by, from, or to computer, printer, typewriter, long-hand, photocopier, facsimile, teletype, magnetic storage media of any type, optical storage media or any type, or other process.
The term "public record" further includes, but is not limited to, published materials, studies, analyses, letters, emails, reports, memoranda, notices, notes, correspondence, invoices, checks, orders, statements of account, messages, teletype or facsimile transmissions or printouts thereof, telephone communications, minutes of meetings, memoranda of contact, and any and all marginal notations on any of the foregoing.
The term "public record" includes all such documents now in the possession, custody or control of the DEP, or in the possession, custody or control of the present of former members, officers, agents, representatives, employees, contractors, and agents of DEP and any and all persons acting on your behalf, including documents at any time in the possession, custody or control of such individuals or entities, or known by you to exist.
If any document was, but is no longer, in DEP's possession or subject to your control, or in existence, state whether it is (a) missing or lost, (b) has been destroyed, (c) has been transferred voluntarily or involuntarily to others, or (d) otherwise disposed of, and in each instance, explain the circumstances surrounding and authorization for such disposition of it and state the date or approximate date of it.
For purposes of this request the term "relating to" means containing, alluding to, responding to, commenting upon, discussing, showing, disclosing, explaining, mentioning, analyzing, constituting, comprising, evidencing, setting forth, summarizing or characterizing, either directly or indirectly, in whole or in part.
I request that you provide me with the requested records within the five day deadline specified by W.V. Code § 29B-1-3 (4), but I am prepared to grant a reasonable extension of that deadline if necessary to accommodate your good faith efforts to comply with this FOIA request.
I am prepared to pay the reasonable cost for the reproduction of the foregoing records as calculated under W.V. Code § 29B-1-3 (5). W. V. Code § 29B-1-3 (5) provides that: The public body may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of such records."
In order to minimize such cost, please advise me of the availability of the foregoing records on electronic media, as contemplated by W.V. Code § 29B-1-3 (3), and the cost for obtaining the records in that format, either as an alternative to hard copy or in addition to the hard copy. W. V. Code § 29B-1-3 (3) provides that "If the records requested exist in magnetic, electronic or computer form, the custodian of the records shall make such copies available on magnetic or electronic media, if so requested."
The FOIA permits agencies to waive fees if the disclosure of the records is in the public interest. I request that you exercise your discretion to waive such costs incident to this request as both requestors are tax exempt, non-profit organizations committed to preservation of the environment.
If you claim that any of the foregoing records are exempt from mandatory disclosure, I respectfully request that you:
(1) provide me with an index of all requested documents which reflects the date, author, addressee, number of pages, and subject matter of the requested document;
(2) state the exemption you deem to be applicable to each requested record;
(3) state with particularity the reason why such exemption is applicable to each requested record;
(4) examine each requested record to determine if reasonably segregable non-exempt information exists which may be released to me after redacting information deemed to be exempt, and
(5) exercise your discretion to release such records notwithstanding the availability of a basis for withholding.
In any case, please call me to discuss any problems anticipated or encountered in making a timely response at 304-342-5588.
I appreciate your attention to this matter.
Very truly yours,
William V. DePaulo, Esq.
179 Summers Street, Suite 232
Charleston, WV 25301-2163
Tel: 304-342-5588
Fax: 304-342-5505
william.depaulo@gmail.com
www.passeggiata.com