State denies right-to-know request
The state Office of Open Records has rejected a joint “right-to-know” request for information about the failure of the Duke Lake dam in Ryerson Station State Park in Greene County. The request was submitted by the Center for Coalfield Justice (CCJ), the Observer-Reporter newspaper in Washington and state Rep. Bill DeWeese, D-Waynesburg. In its notification letter, the Open Records Office said the Department of Environmental Protection (DEP) did not respond to the request in a timely manner so the request was deemed denied after five days, on April 6.
However, the DEP sent the parties a letter on April 12, indicating the DEP would “require an additional 30 days” to respond to the request. No mention was made of the deemed denial, and this interim response was therefore taken as a good faith effort on the part of the DEP to respond to the right-to-know request.
Given the deemed denial, the groups then had 15 days to file an appeal. Subsequent letters, emails, and phone conversations with the DEP never made mention of this fact. When the final response and denial was provided on May 7, the parties then made plans to file what they felt was a timely appeal by May 27.
“While the Right-to-Know law certainly includes this confusing provision, it is now clear to us that the law provides unnecessary cover to agencies at the expense of private citizens and other interested parties. Moreover, we feel the DEP response was ambiguous at best,” said Raina Rippel, CCJ executive director.
The CCJ, Observer-Reporter and DeWeese had requested numerous materials from the DEP associated with studies and correspondence regarding the dam failure at Ryerson Station State Park.
DeWeese said he was not happy with the misleading way the DEP handled communications regarding the open records request.
“It is outrageous that the Center for Coalfield Justice should have to resubmit this Right-to-Know Law request, which will likely add another 30 days to the five long years we have been waiting to get answers on what happened at Duke Lake,” DeWeese said. “I am none too pleased that a state agency has chosen to play a proverbial shell game with semantics, using the fine line between ‘interim response’ and ‘final response’ to mislead the Center for Coalfield Justice, the Observer-Reporter and myself.
“When the Legislature passed the new Open Records Law in 2008, it was with the caveat that it might need to be fine-tuned down the road, as specific situations arose,” DeWeese continued. “In my mind, a game-playing response may mean that time is at hand.”
An interim report from the DEP in February said long-wall mining at Consol Energy’s Bailey Mine caused ground movement that damaged the concrete dam, which was built in 1960. The park opened in 1967.
The 62-acre lake was drained in July 2005 after the DEP and Department of Conservation and Natural Resources (DCNR) found cracks in the dam and increased seepage from the structure.
Part of the spillway was removed in August 2005 to prevent ran and runoff from refilling the impoundment.
In January 2007, the DCNR filed a notice of its intention to sue Consol in Allegheny County Common Pleas Court. The DCNR is reportedly seeking $58 million in damages to repair the dam and other alleged environmental damage, and to restore the lake.
The court advised the DCNR to file its claim with the DEP, which is supposed to try to mediate a resolution and issue an order, which either side could appeal to the state Environmental Hearing Board. The board’s decision can be appealed in the court system.
DCNR was forced to spend over a million taxpayer dollars on their lawsuit against Consol alleging that mining damaged Duke Lake Dam. A similar right-to-know request was submitted to the DCNR, which, in contrast to the DEP, met all deadlines for response. An appeal of the DCNR denial is therefore still pending.
The CCJ, Observer-Reporter, and DeWeese plan to file a second right-to-know request shortly to the DEP.