File Reviews at your State Environmental Agency

Here are the basics on review­ing files at your state envi­ron­men­tal agency:

A “file review” is where you go to an agency’s regional office and look at the records they have on a facility that the agency has dealt with.

This guide will lead you through the most like­ly steps, but it’s not always easy to find what you need. Some­times the rel­e­vant infor­ma­tion is at the lev­el of “land use” deci­sions, like zon­ing, which occur at local (not state) lev­els. Some­times rel­e­vant infor­ma­tion will be with fed­er­al agen­cies or oth­er state agen­cies, includ­ing pub­lic health, OSHA, or even home­land secu­ri­ty. State envi­ron­men­tal agen­cies have files on oper­at­ing facil­i­ties, pro­posed facil­i­ties (those for which per­mit appli­ca­tions have been sub­mit­ted) and even on facil­i­ties that are closed or which may not be a “facil­i­ty” (like tox­ic waste sites and such). You can find all sorts of use­ful infor­ma­tion, such as:

• back­ground on the corporation(s) involved
• details on their existing/proposed operations
• per­mit­ted emis­sions limits
• dis­putes between the com­pa­ny and the envi­ron­men­tal agency
• infor­ma­tion on relat­ed com­pa­nies or oth­er facil­i­ties where the facil­i­ty’s waste prod­ucts go
• vio­la­tions and fines

To review files, first find your agency here:

https://www.epa.gov/home/health-and-environmental-agencies-us-states-and-territories

If your state has more than one agency, usu­al­ly one will be relat­ed to “con­ser­va­tion” or “nat­ur­al resources” (these are the folks who sell off the rights to your state forests and oth­er pub­lic lands). The agency that has files on pol­lut­ing indus­tries that you may be research­ing is usu­al­ly the oth­er one. Most state agen­cies have region­al offices that do the actu­al work of review­ing pol­lu­tion per­mit appli­ca­tions, giv­ing out per­mits and doing inspec­tions. The files you’ll want to look up are usu­al­ly in this region­al office, not the main agency office in your state’s capital.

Find­ing the agen­cy’s region­al office might require some fish­ing around on their web­site. Look for any­thing labeled “agency loca­tions” or “region­al offices.” You may need to first find “about,” “con­tact us” or “site map” links to find this info. Here are some exam­ples of region­al office websites:

NY: https://www.dec.ny.gov/public/373.html
OH: http://epa.ohio.gov/Districts.aspx

Arranging a File Review

Look up the region­al office that cov­ers the coun­ty where the exist­ing or pro­posed facil­i­ty is (or would be) locat­ed. The site should have phone num­bers you can call plus direc­tions to their region­al offices. Call the main region­al office num­ber and ask for the “file room” or “records man­age­ment” or just tell them that you’d “like to sched­ule a file review.”

For each facil­i­ty you want to exam­ine, they’ll want to know at least the facil­i­ty name and the coun­ty that it’s locat­ed in. Some­times it’s as easy as say­ing which facil­i­ties you want to look at and they’ll give you a date when you can come in. Some­times you may need to put a request in writ­ing or jump through oth­er hoops to get your appoint­ment. If they ask you which files you’d like to see for the facil­i­ty (or facil­i­ties) you’re ask­ing about, they’re want­i­ng to know if you want to lim­it your request to just a cer­tain pro­gram area (like air, water, waste, etc.). Always ask for all files for the facil­i­ty. It’s all poten­tial­ly inter­est­ing and some­times paper­work will be mis­filed in the wrong fold­er, anyway.

They may want to know the names of every­one who will be doing the file review. You don’t have to tell them that you’re with an orga­ni­za­tion (they’ll prob­a­bly ask what com­pa­ny you’re with, since they’re used to deal­ing with cor­po­ra­tions). You can just say that you’re a pri­vate cit­i­zen and that’s okay.
Depend­ing on how busy their office is, your appoint­ment may be sched­uled for 1–4 weeks away. It’ll be dur­ing a work day. You may get a reser­va­tion for the entire day. It can some­times take a whole work­day to review a large set of files, so go in ear­ly and plan to spend at least a few hours there unless it’s only one pro­posed facil­i­ty and a very small file. If you expect to be review­ing large amounts of files, try to have 2–4 peo­ple doing the review.

Doing a File Review

Ask that any dig­i­tal doc­u­ments relat­ing to the facil­i­ty be made avail­able for review and copy­ing as well (and bring a flash dri­ve or blank CD if you can, in case they let you copy files and want to charge you for CDs). There’s a good chance that paper files you’ll see will also be on their com­put­ers some­where, espe­cial­ly if it’s a doc­u­ment that looks com­put­er-gen­er­at­ed and writ­ten by staff.

Print­ed emails are also prob­a­bly on their com­put­ers some­where – in some states, your open records law will give you the right to elec­tron­ic copies.

Before spend­ing time and mon­ey copy­ing them, ask if they have the doc­u­ments on a com­put­er any­where in the agency. They may not be used to deal­ing with this sort of ques­tion and you need to grill them with ques­tions, first estab­lish­ing whether they exist on a com­put­er at all. You might need to ask very spe­cif­ic ques­tions like who cre­at­ed the doc­u­ment and how? Did they use a type­writer or a com­put­er? Do they delete their com­put­er files once they print them? These may seem like pas­sive aggres­sive ques­tions, but with­out pok­ing at them with these sorts of inquiries, you may get the run-around. They may argue that as long as you have the paper ver­sion, you don’t have a right to a dig­i­tal copy. They may also argue that the dig­i­tal copy was delet­ed or isn’t tech­ni­cal­ly a “pub­lic record” that you have a right to.

You may need to care­ful­ly review your state’s open records law for details on this type of thing. Some­times it’s worth going above the heads of agency staff peo­ple and speak­ing to their lawyers. They know whether you have a right to some­thing and press­ing them will some­times result in dig­i­tal doc­u­ments sur­fac­ing that aren’t even in the paper files at all. See the Open Gov­ern­ment Guide for details on your rights under your state’s Open Records law.

They may give you some­thing like 10 free copies, but after that, it can get expen­sive. If at all pos­si­ble, bring a portable copi­er as they may charge a lot for using their copi­er. It’s cheap­er to use your own. Ask in advance whether this is accept­able. It usu­al­ly is.

In addi­tion to going in to review files, you can call the region­al office and speak to some­one (prob­a­bly in “air qual­i­ty” or “waste man­age­ment”) to ask about the sta­tus of any per­mit appli­ca­tions relat­ing to the facil­i­ty. They can tell you if a per­mit is being con­sid­ered or not and what stage in the process it’s in.

What to look for:

• Look for any­thing refer­ring to “Notices of Vio­la­tion” (it might be referred to by an acronym like “NOV”) and copy them.
• Read over cor­re­spon­dence files and any­thing that looks like back-and-forth between the com­pa­ny and the agency over per­mits or any­thing. Often a com­pa­ny will apply for a per­mit and get things wrong in their appli­ca­tion and the “defi­cien­cies” will be point­ed out by the agency.
• There are often dis­putes and oth­er juicy info you can find in cor­re­spon­dence files, which tend to be less tech­ni­cal than oth­er doc­u­ments you’ll find.
• Copy the per­mit appli­ca­tion (unless you can get a dig­i­tal copy) and any­thing that pro­vides any insight into envi­ron­men­tal impacts (air emis­sions, waste prod­ucts, fuel sup­ply, infra­struc­ture, water use, etc.).
• If it’s an exist­ing facil­i­ty, look for inspec­tion reports and copy any­thing that looks like it may indi­cate improp­er man­age­ment of the facil­i­ty or violations.
• Find out where their waste prod­ucts go, if possible.
• Copy any­thing relat­ing to the com­pa­ny’s back­ground and history.
• Copy intro­duc­to­ry infor­ma­tion that explains the basics of how their facil­i­ty is sup­posed to work.
• Copy any­thing that gives insight into which oth­er com­pa­nies they deal with (get waste from, sell to, etc.) and which oth­er com­mu­ni­ties are impact­ed by them.
• Copy any­thing marked con­fi­den­tial (you may not find this lat­er, as they’re sup­posed to be removed).

Don’t spend too much time read­ing every­thing. If it looks remote­ly inter­est­ing, copy it and move on. Read the details later.

Confidentiality

The rules for this vary but in many places infor­ma­tion is with­held just because a com­pa­ny des­ig­nates it as “con­fi­den­tial.” Also, the rules may spec­i­fy that they have to tell you when they are with­hold­ing files, and give a rea­son. After a pass through the files, it’s a good idea to ask if any­thing has been with­held as “con­fi­den­tial” or for some oth­er rea­son. Some com­mon rea­sons are “enforce­ment” or “crim­i­nal inves­ti­ga­tion” or “attor­ney client work prod­uct.” You prob­a­bly won’t be able to see these files, but just know­ing they exist can be helpful.

Attitude

Agency staff can be real­ly help­ful. One of them may even slip you infor­ma­tion if they have some sense that it won’t lead back to them. It makes sense to try to gain their con­fi­dence – try and be nice, and if they do help you out let them know you don’t con­sid­er them per­son­al­ly respon­si­ble for anything.

File reviews can be pro­duc­tive but also some­times tricky – rules vary, and you can find unex­pect­ed things. If you come across some­thing of inter­est or need help beyond what agency staff can pro­vide, give us a call, and we can find some­one who knows the issue and loca­tion well and/or just help you through the process ourselves.