EPA/DOJ offer limited response to questions on Fort Smith consent decree negotiations

U.S. Environmental Protection Agency (EPA) and Department of Justice (DOJ) officials have responded to Talk Business & Politics’ requests for comment on the recent (Aug. 10) meeting between their representatives and a delegation from the city of Fort Smith.

The meeting was what EPA/DOJ has called “pre-settlement/pre-enforcement discussions.” Thus far, the bodies have not disclosed that any formal records of the meeting exist, only acknowledging it happened on the date stated in a Friday (Aug. 17) press release from the city. Specifically, EPA spokeswoman Cynthia Fanning said in a telephone conversation the materials  (i.e., minutes and recordings) did not exist, while DOJ spokesman Wyn Hornbuckle declined to provide a formal response on the possible existence of said materials.

Talk Business & Politics asked the DOJ if there were minutes or recordings of the meeting, and are they “not FOIA-able?” The email stated Talk Business & Politics was “just trying to understand the legal mechanism that would exclude negotiations from being subject to FOIA since this is a publicly-funded utility.”

The DOJ representative stated it was standard procedure for the agency to treat all “pre-settlement/pre-enforcement discussions confidentially.”

“FOIA is a different process, and I am not sure what that would yield,” Hornbuckle said, adding a link to the DOJ’s Make an FOIA Request page to his response.

A formal FOIA request was submitted on Tuesday (Aug. 21) asking for “minutes, recordings, or any documentation that was created in regard to an in-person Aug. 10 meeting between the EPA Region 6 Dallas office, DOJ representatives, and a delegation from the city of Fort Smith to discuss the city’s federal consent decree.” Also, Talk Business & Politics has asked the agency to produce any “written or recorded conversations the city has had with the EPA/DOJ since the Aug. 10 meeting” through Aug. 21.

While the requests are out there, it could take a month or longer to get an answer as the DOJ website notes, “The time it takes to respond to each request varies depending on the complexity of the request itself and the backlog of requests already pending at the component.”

The site continues: “In some circumstances, the component will be able to respond to the request within the standard time limit established by the FOIA, which is (20) working days, or approximately one month. In other instances, there might be a longer period of time needed before the request can be handled. For example, some DOJ components, such as the FBI and DEA, receive thousands of requests each year. Many of these requests require a line-by-line review of hundreds or even thousands of pages of documents. Although these components make every effort to respond to FOIA requests as quickly as possible, in some cases they simply cannot do so within the twenty-day time period specified in the FOIA. Generally, if you make a request for a small volume of material, the component will be able to process the request more quickly as a ‘simple’ request.”

The city shared its side of the discussion in an Aug. 17 press release, asking for a cap on sewer rates at no higher than 1.9% of median household income (MHI) for the remaining term of the decree, among other modifications. Talk Business & Politics asked the EPA/DOJ what the next step forward is and what, if any, requests would the agencies be open to. Neither was willing to address the questions.