Public not allowed
EPA says policy is enough to close GWTP hearing

Copyright © 2009
Gallup Independent
By Kathy Helms
Diné Bureau

GALLUP — Even if members of Congress wanted to listen in on a show-cause hearing between the U.S. Environmental Protection Agency and the city of Gallup regarding a June spill at the Gallup Wastewater Treatment Plant, they would not be allowed to do so.

David Bary, public information specialist for EPA, Region 6, in a previous interview, said provisions of the Clean Water Act allow for the city of Gallup to present its information in a show-cause meeting. “These meetings are not open to the public because of the sensitive nature of potential enforcement action,” he said.

The closed show-cause conference call is scheduled for April 14. EPA’s decision to close such meetings is based on a memorandum from EPA headquarters in Washington issued during the tenure of former EPA Administrator Stephen L. Johnson under the Bush administration and is supported by memos issued by EPA as far back as 1990.

“The memorandum for the agency’s national office in Washington points out that some of the negotiations between the city and the agency are not a public forum, and the agency has, for many years, adhered to its policy of these show-cause meetings being closed, and it’s a very good reason,” Bary said.

“The violation that’s of issue here is between the Environmental Protection Agency and the city of Gallup, New Mexico. Nobody else is involved here. In order to have frank and candid discussions during settlement discussions, it’s critical that these hearings are available only to stakeholders, in this case, the city of Gallup and the Environmental Protection Agency.

“It’s not open to members of the public. If a member of Congress were to ask to participate, or sit in on, or listen to our discussions during these enforcement activities, we would have to tell them the same thing. This is a closed meeting and is between the Environmental Protection Agency and the respondent — in this case the city of Gallup, New Mexico, only,” he said.

In a Dec. 4 administrative order, EPA cited the city with violations of the Clean Water Act following a June 24 spill that dumped about 1,800 gallons of raw sewage went into the Rio Puerco River.

Patrick Rogers, attorney for the Independent, contacted the EPA and requested any specific law or legal precedent that requires these conferences to be held in secret.

Rogers said, “While the policy of the EPA states that it is the EPA policy to provide for an open process, the EPA thus far has not provided any specific law or regulation to explain why the ‘open process’ will be secret in this instance. The matters under consideration have a great impact on the people of Gallup and something more than a policy that says the EPA will proceed in the open but close this meeting should be provided from the EPA.”

Leonard DeLayo, executive director for the New Mexico Foundation for Open Government, said recently that he believes the meeting should be open. “I think something of this magnitude, when it’s public health, it should be open and they should not be allowed to close the conference call or any other meeting concerning it.”

U.S. Rep. Ben Ray Luján, New Mexico-District 3, was observing Good Friday with his family and was unavailable for comment. Lance Allgood, executive director for Gallup Joint Utilities Administration, was in meetings Friday and did not return two calls made to his office by the Independent.

According to the 2006 memorandum from Granta Y. Nakayama entitled “Restrictions on Communicating with Outside Parties Regarding Enforcement Actions,” when sensitive enforcement information is released by EPA through either discussions or written communications, it may result in less protection of public health and the environment and jeopardize settlement negotiations.

The memo states that central to EPA’s enforcement work is the need to keep information that is not already in the public domain confidential while EPA is engaged in an enforcement matter. “Although oftentimes the existence of an enforcement action is widely known, specific and sensitive enforcement information should be closely guarded. Therefore, communication with outside parties about enforcement-sensitive information should not occur.”

Outside parties include members of Congress and congressional staff, representatives of state or local governments that do not enter into a joint prosecution or confidentiality agreement with EPA or the federal government, representatives of the media, industry, trade associations, environmental or public interest groups, and members of the general public.

“It is common practice that once settlement negotiations begin in any given enforcement matter, that the parties agree, in writing, that such communications will be held confidential between the parties to the fullest extent allowed by law,” the memo states, adding that the agreements are not only for the protection of the party subject to the enforcement proceeding, but also to protect EPA if the matter is not settled and proceeds to adjudication.

Congress should not be a party in enforcement actions and should not be privy to settlement exchanges on the appropriate remedy required to settle an enforcement matter, the memo states.