Using FOIA for Environmental Advantage



Since 1967, the Freedom of Information Act (FOIA) has allowed concerned citizens the right to access information about industrial facilities. Fortunately, FOIA isn’t only useful to the concerned citizen, it can be a helpful tool for historical recordkeeping, competitive intelligence, and permitting for your facility.

FOIA requires government agencies to make available any records reasonably requested, barring nine exemptions that cover topics such as national security, trade secrets, and law enforcement. Each state has incorporated its own interpretation of what can and cannot be obtained through a FOIA request into state laws. In addition, each state regulatory agency has one or two FOIA officers that manage the FOIA requests. These officers are typically in charge of locating the requested documents, scanning them, and/or setting up review time and space.

Recordkeeping Archive

State environmental agencies will typically have some documentation on a site from as far back as the start of the Clean Air Act/Clean Water Act regulations in the 1970’s (assuming the site existed back then) to the present day. These records are documentation of the story of permitting and compliance at a site, such as: construction permits, operating permits, permit applications, compliance documents, stack tests, state reporting documents, and much more!

Submitting a FOIA request for your own facility might be useful if you are unfamiliar with the history of environmental permitting or compliance at your site. It can be helpful to have all of your site’s permitting and compliance history in one location for easy browsing.

Another reason to submit a FOIA request for your own facility is to put yourself in the shoes of a concerned citizen. When reviewing information on your site, consider whether your trade secrets are being adequately protected (more on this later), and whether the available documentation reflects a positive image to the public. The best time to do this is prior to a public meeting or public comment period that might be required for construction or operating permits at your site.

Competitive Intelligence

Industries that are fiercely competitive already know how hard it is to ensure that important trade secret information is removed from public records submitted to the regulatory agency. There is a danger that some trade secrets may have slipped through the cracks, and not been redacted correctly in the public copy. Examining your own facility’s records is worthwhile to determine if your trade secrets are on public display and, submitting a FOIA request for a competitor’s site might also provide insights that can be used for competitive advantage.

Furthermore, a FOIA request for a competitor or a facility of interest can also provide insights on how the state or federal regulatory agency handled a project similar to one your site is considering, thus identifying potential roadblocks in advance.

Permitting Insights

Historically, the main reason for environmental professionals to research other industries is when they are required to use the RACT/BACT/LAER Clearinghouse (RBLC) to complete a control technology review for permitting. The RBLC database contains extensive historical control technology determinations and can be searched by facility, process type, or pollutant.

State agency personnel frequently update this database with information as new permits are issued. States have varying approaches to the level of detail they enter into the RBLC. However, more information on sites that lack a detailed description can only be obtained via a FOIA request of the original permit application or the issued permit.

Even if the level of detail is adequate, it can still be advantageous to supplement an RBLC search with a FOIA request because not all permit nuances are accurately captured by the RBLC. For example, for a true apples-to-apples comparison of two RBLC permit limits, it is helpful to know the averaging period for the emission limits, compliance method for the limits, and whether the limits reflect startup, shutdown, or normal operation. This extra information can only be found by submitting a FOIA request for the final permit and permit application. In addition, the resulting information will identify whether the site was built as planned and whether they can operate as planned. Armed with this information, you can decide whether another site’s control technology is appropriate for your site.

FOIA Request Tips

Before you prepare to submit a huge stack of FOIA requests, first try to identify EQ Winter 2016 Using FOIA FIg 1what is already available to you online. More and more state agencies are providing Title V and Minor NSR permits online. Each state takes a different approach to sharing information, however, and you won’t know what’s available in your state until you look.

If the information you seek is not available online, then a FOIA request to your state regulatory agency may be worthwhile. Depending on the state and the dates of the information requested, you may receive the electronic files by email or you may receive a letter by mail asking you to schedule a time to come to the agency’s reading room to review the files. Some states charge a small fee for finding the files requested or photocopying/scanning the files.

In closing, take a note from the concerned citizen’s book, FOIA requests are an easy way to learn about your site’s recordkeeping history, gain competitive intelligence on your neighbors, and have confidence in your RBLC search results. If you need assistance in the strategy or mechanics of a FOIA request, contact your local Trinity office at (800) 229-6655.