Obama administration pounds chest about transparency, but will have to better than this

The other day the Obama administration's "Chief Information Officer" — or CIO… isn't that clever? — was in Seattle decrying a "culture of faceless unaccountability" in government. His boast:

"This is part of the President's agenda: to make sure we’re hardwiring transparency into the culture of the federal government."

What a bunch of horse patootie.

At least that's the way Vivek Kundra's chest-beating looks from the trenches, for me and for other journalists trying to get information from the federal government, and particularly from the U.S. Environmental Protection Agency.

Kundra's statement in front of a geek-heavy audience in Seattle is worth examining now because today kicks off Sunshine Week, the annual exercise in which open-government activists yap it up with fellow citizens about the importance of our democratic government being truly transparent with citizens. As a journalist, a fair amount of what I do is find out what government is up to, and tell my fellow citizens.

Now,  Kundra's statement about Obama's agenda may be correct. But I'm here to tell you, friends, that the agenda ain't trickling down to the trenches.

Want proof? In this post today I'll detail how the EPA simply failed to engage with us for a recent InvestigateWest story of great nationwide importance.

Later in the week, Lord willing and the crick don't rise, we'll examine the EPA's slow reaction to a simple Freedom of Information Act request we filed; how the Obama administration is fighting a large number of FOIA requests; and how the Obama administration appears to be squelching government scientists as much as the George W. Bush administration. Finally, we'll present a list of information sources to help citizens, citizen journalists and pavement-pounding reporters find out what's going on in our government.

Because we're planning only five posts, we probably won't get to squeeze in how Obama's vow of a more open legislative process is falling short.

Now, what follows today is the blow-by-blow on how the EPA just didn't get back to InvestigateWest in a substantive way recently. All we asked for was the agency's take on our story about toxic parking-lot sealants that coat huge swaths of our cities and suburbs.

EPA, in keeping with the Obama administration's supposed openness initiative, says it is "creating and institutionalizing a culture of open government." Judge for yourself. Here's what happened to InvestigateWest:

I learned that a study was forthcoming in a science journal that would show that pollutants from coal-tar sealants used on driveways and parking lots are making their way into people's homes at levels that are of concern to researchers.

I heard the study would be out in mid- to late December. On Dec. 10 I e-mailed the EPA's communications shop in D.C., the office responsible for answering reporters' questions or finding someone at the agency who can do so. Bottom line: When that story ran on MSNBC on Jan. 12, I had been unable — despite numerous e-mails to EPA — to get an actual EPA official on the phone to discuss the matter.

First the EPA public affairs officer, Enesta Jones, said the person who knew about the coal tar sealants was out that week. At the time, I was trying to finish the story that week, because we had heard publication of the study in the science journal was imminent.

It turned out we had a little breathing room on the deadline. So I tried back the next week. Jones' response this time? She had made a mistake. A different person was the one we needed to interview. And this person who we actually needed to respond to this was, uh, on vacation. Just like the person she thought was the right person had been on vacation the week before. 

Of course, the next week were the Christmas holidays. So pretty much everyone would be on vacation.

In desperation, I e-mailed Jones some questions. This is rarely a productive way to get information from anyone, since every answer potentially requires further questions. That's fine in an actual conversation. But when it's being done in an artificiallly constrained e-mail exchange, and especially when it involves complex topics like stormwater and polycyclic aromatic hydrocarbons, it's a recipe for a less-than-complete understanding of the topic by the journalist working the story.

Judge for yourself, but for me, the "answers" to these written questions, which I've reproduced below, were not all that revelatory.

Below I'm recounting the entire e-mail conversation between InvestigateWest and EPA, including my mistake in addressing Jones by an incorrect first name when I first was in contact with her seeking ageny comment.

Now, I don't want for any reader to walk away from this with the notion that this is an isolated occurrence. I hear from other journalists are encountering the same kind of treatment.

Here's one other example of the kind of thing I'm talking about: An AP reporter called up EPA when doing a story on the agency's decision to allow waste from coal-fired power plants to be spread on farm fields. The story  included this statement:

"EPA officials declined to talk about the agency's promotion of FGD gypsum before then and would not say whether the draft rule would cover it."
 

(Journos and other citizens — please get in touch with me if you've either had bad treatment or good treatment from agencies under the Obama administration when you were seeking information: rmcclure@invw.org.) 

What Kundra and others in the administration are beating their chests about is their efforts to put databases and other information readily into the hands of citizens via the internet. Fair enough. And far be it from me to stand in their way on that score.

But from what I've seen more than a year into the Obama administration's four-year term, the administration isn't interested in answering questions from dispassionate, knowledgeable and professional observers. It's more interested in running the federal government like a political campaign.

Let's hope this changes. Soon.

And now, on to that promised e-mail chain between me and EPA spokeswoman Enesta Jones: 

(Times are Pacific Standard)

 From: Jones.Enesta@epamail.epa.gov

To: rmcclure@invw.org

 dateThu, Dec 10, 2009 at 6:56 AM

Robert,

Dale forwarded your vm to me, because I handle press inquiries on water

in the press shop now.

What are you specific questions? What is prompting your interest? What's

the angle of your story? What is your hard deadline?

 

Thank you,

 

Enesta Jones

Press Office

U.S. Environmental Protection Agency

 robert mcclure <rmcclure@invw.org>

to: Jones.Enesta@epamail.epa.gov

 date: Thu, Dec 10, 2009 at 9:11 AM

 

Ernesta — Just left you a voicemail.

 

Thanks for getting back to me.

 

I'm working on a story about some new research about parking lot runoff that contains PAHs.

It's coming from parking lots with coaltar sealants.

 

Apparently Rep. Lyle Doggett of Texas has been asking EPA for some time now to look into this, and I understand that earlier this year the agency agreed to take some action.

 

One  question is: What is the agency doing about coaltar asphalt sealants? After I understand that, I'm sure I'd have additional questions. That's why I'd like to interview the EPA person working on this, or his or her supervisor if he or she is not available, by close of business Friday.

 

One other question that I forgot to mention in the vm, but which I'm sure the relevant agency official would know, concerns the original reclassification of coaltar under RCRA in 1991. Apparently the agency took action that year that allowed its use in parking lot sealants and perhaps other products? I'd like to get an explanation of what action the agency took in the early 1990s under RCRA regarding coaltar. (Coaltar is a byproduct of the coking of steel.)

 

The story is due Friday evening. My editor will be working on it over the weekend.

 

Thanks in advance for getting me set up to do this interview, Ernesta.

 

Robert McClure

InvestigateWest

(206) 718-0340

To robert mcclure <rmcclure@invw.org>

Date Thu, Dec 10, 2009 at 12:50 PM

 

We have been looking into coaltar asphalt sealants, but only to the

extent of researching what states and municipalities are doing to

address it.

 

The person most knowledgeable about this issue is out this week.

 

We're checking to see if we can find any other information. Can you wait

until next week when our best person is back?

 

Enesta Jones

Press Office

U.S. Environmental Protection Agency

 +++

robert mcclure <rmcclure@invw.org>

 

Jones.Enesta@epamail.epa.gov

To: robert mcclure <rmcclure@invw.org>

 Date: Thu, Dec 10, 2009 at 2:37 PM

 

Checking on RCRA…

 

I talked to Jenny's supervisor and was able to get some clarification.

All we have done is to look into situations where a state or city

attempted to prevent pollutants from coming into contact with stormwater

and found that one community (it may have been in Texas) banned the use

of PAHs.  We did no further work on it. You should talk directly with

the city.

 

Enesta Jones

Press Office

U.S. Environmental Protection Agency

 

 +++

robert mcclure <rmcclure@invw.org>

robert mcclure <rmcclure@invw.org>

to:p Jones.Enesta@epamail.epa.gov

 date: Fri, Dec 11, 2009 at 10:06 AM

 

Ernesta, I'm in contact with Rep. Doggett's office about PAHs and coaltar sealcoats. They sent me the attached letter from EPA, which seems to summarize where the agency was on this issue as of the summer at least. It looks like you all are building some sort of facility in New Jersey to do tests on this. Is that your read?

 

Also, and this is important: This letter mentions that EPA has completed a human health risk assessment, as requested by Congress. May I please have a copy of that assessment?

 

Thanks,

 

Robert McClure

InvestigateWest

 

 

 +++

 

Jones.Enesta@epamail.epa.gov

To: robert mcclure <rmcclure@invw.org>

Date: Mon, Dec 14, 2009 at 5:14 AM

Subject Re: document for InvestigateWest

 

Robert,

I am checking on the assessment.

Re: the Edison facility:

Contaminants in storm water runoff from parking lots may be derived from materials leached from various sealants, including coal tar products, and are likely to include other contributing sources (e.g., automobiles, air deposition). 

Initial laboratory studies are being designed to focus on research to assess environmental concentrations and evaluate the acute impacts of leached PAHs and co-occurring compounds on the potential toxicity to receiving waters and aquatic life. 

Specific to coal tar-based sealants, the ORD facility in Edison, NJ has completed the planning for experiments involving both bench-scale and full-scale applications of parking lot sealants, including the fate and bioavailability of PAHs.  Based on the monitoring findings, appropriate toxicity studies will be conducted.

Laboratory studies to address chemical releases and potential toxicity from volatilized and leached compounds from coal tar and latex sealant materials will begin in late 2009.  We expect preliminary results in approximately 18 months from the commencement of the studies.  ORD-Edison has a long history of providing leadership in storm water research, specifically identifying pollutant loading in storm water runoff. 

Related to this work, two full-scale facilities are also being developed  at the Edison facility.  One is a new parking lot that is being constructed to test the use of porous pavements and the other is an existing asphalt parking lot that can be used for sealant and run-off studies. 

Enesta Jones

Press Office

U.S. Environmentaln Protection Agency

 +++

 

Jones.Enesta@epamail.epa.gov

To: robert mcclure <rmcclure@invw.org>

Date: Mon, Dec 14, 2009 at 9:08 AM

Subject Re: document for InvestigateWest

 

Thanks, I am checking.

 

Enesta Jones

Press Office

U.S. Environmental Protection Agency

Desk: 202.564.7873

Cell: 202.236.2426

 +++

 

robert mcclure <rmcclure@invw.org>

to: Jones.Enesta@epamail.epa.gov

 

date: Mon, Dec 14, 2009 at 9:58 AM

subject Re: document for InvestigateWest

 

OK, thanks for checking the assessment, and for the information on the Edison facility.

 

You're arranging for an interview with the staffer who knows the most about the coal tar sealants, right?

 

Robert

 +++

 

Jones.Enesta@epamail.epa.gov

To: robert mcclure <rmcclure@invw.org>

 

Date: Mon, Dec 14, 2009 at 10:16 AM

Subject Re: document for InvestigateWest

 

I am checking.

Enesta Jones

Press Office, U.S. Environmental Protection Agency

 +++

 

Jones.Enesta@epamail.epa.gov

To: robert mcclure <rmcclure@invw.org>

 

Date: Mon, Dec 14, 2009 at 12:38 PM

 

The assessment is supposed to be released for peer review and public

comment on December 28.

 

Enesta Jones

Press Office,  U.S. Environmental Protection Agency

 +++

 

robert mcclure <rmcclure@invw.org>

to Jones.Enesta@epamail.epa.gov

 

date Tue, Dec 15, 2009 at 9:41 AM

 

Any progress on obtaining the human health risk assessment or setting up the interview, Ernesta? That person who was out of the office last week — is she available now?

 

Thanks,

Robert

 +++

 

robert mcclure <rmcclure@invw.org>

to: Jones.Enesta@epamail.epa.gov

 

date: Tue, Dec 15, 2009 at 9:42 AM

 

Oh, I beg your pardon – you said the HHRA is out 12/28?

I'm still interested in doing the interview this week.

Robert

 +++

 

Jones.Enesta@epamail.epa.gov

To: robert mcclure <rmcclure@invw.org>

 

Date: Tue, Dec 15, 2009 at 10:02 AM

 

We would be happy to talk to you after the risk assessment public

comment period closes.

Do you have specific questions?

 

Enesta Jones

Press Office

U.S. Environmental Protection Agency

 +++

 

robert mcclure <rmcclure@invw.org>

to: Jones.Enesta@epamail.epa.gov

 

date: Tue, Dec 15, 2009 at 10:08 AM

 

I would like to speak with someone this week, Ernesta, quite apart from the HHRA, regarding what EPA is doing in terms of dealing with the issue of PAHs coming off coaltar-sealed parking lots. I'm not trying to ask this person about the HHRA. Last week you told me there was a person at EPA who is fully versed on what I'm asking about. Are you telling me that person is not available for an interview this week?

 

Robert

 +++

Jones.Enesta@epamail.epa.gov

To: robert mcclure <rmcclure@invw.org>

 

Date: Tue, Dec 15, 2009 at 12:46 PM

 

 I am checking.

 

Enesta Jones

Press Office

U.S. Environmental Protection Agency

 +++

Jones.Enesta@epamail.epa.gov

To: robert mcclure <rmcclure@invw.org>

 

Date: Thu, Dec 17, 2009 at 9:58 AM

 

I thought that was the most knowledgeable person/office. I have since

learned it is another person/office. With the Holidays, we won't be able

to provide anyone this week. We would much prefer to talk about the

issue in January.

In the meantime, here are the answers to your other questions:

 

1. What is the agency doing about coal tar asphalt sealants?

 

The Office of Resource Conservation and Recovery (i.e., the part of EPA

that develops hazardous waste regulations under the Resource

Conservation and Recovery Act, or RCRA) is not currently engaged in any

activity related to coal tar-based asphalt sealant.  This is explained

below.

 

2. I'd like to get an explanation of what action the agency took in the

early 1990s under RCRA regarding coal tar (reclassification in 1991?).

Apparently the agency took action that year that allowed its use in

parking lot sealants and perhaps other products?

 

It might be helpful to clarify that coal tar-based asphalt sealant is a

product made with coal tar as an ingredient.  Coal tar itself is a

product, made from the recovery and refining of by-products (‘coke

by-products’) produced during the conversion of coal to coke.  (Coke is

used to make steel).  The rulemakings listed below addressed certain

residual materials generated during the production, recovery and

refining of coke by-products in the coke by-product industry.  EPA

determined that when discarded (e.g., sent to a landfill) these

residuals are defined as hazardous waste, and when recycled within the

coke by-product process, they are not wastes.

 

The recycling practices that the Agency studied during these rulemaking

processes were not the result of these rulemakings; rather, these

practices were already taking place within this industry.  In these

proposed and final rulemakings under RCRA, we reviewed industry

practices, analytical data, and public comments.  Our finding was that

these residuals represent a relatively small fraction of the raw

material into which they are inserted, and are very similar to the raw

material that they are displacing in terms of their chemical makeup and

concentration.  We based our conclusions on a review of the chemical

constituents, including PAHs (polynuclear aromatic  hydrocarbons) and

toxic metals, in the coke and coal tar products produced both with and

without the addition of the coke by-product residuals.

 

July 26, 1991  – EPA proposed a rule to regulate as hazardous waste

certain residuals generated by the production of coke, and by the

recovery and refining of coke by-products; and also to exclude from the

definition of solid waste these same residuals when recycled in certain

ways within the coke by-product industry (July 26, 1991 Federal

Register; 56 FR 35758).

 

June 22, 1992  – EPA promulgated a final rule to exclude these residuals

from the definition of solid waste when these materials are recycled in

certain ways in the coke by-product industry (June 22, 1992 Federal

Register; 57 FR 27880).

 

August 18, 1992  – EPA promulgated a final rule to list as hazardous

waste these residuals when discarded (i.e., when not recycled as per the

exclusion), and amended the recycling exclusion (August 18, 1992 Federal

Register; 57 FR 37284).

 

 

 

 

Enesta Jones

Press Office,  U.S. Environmental Protection Agency

 +++

robert mcclure <rmcclure@invw.org>

To: Jones.Enesta@epamail.epa.gov

 

Date: Thu, Dec 17, 2009 at 10:31 AM

 

This is really, really lame, Ernesta. Lame, lame, lame.

Robert

 +++

 

robert mcclure <rmcclure@invw.org>

to: Jones.Enesta@epamail.epa.gov

 

date: Thu, Dec 17, 2009 at 10:32 AM

 

I meant dodging the interview request was lame, btw.

I thank you for the history.

 

Robert

 +++

 

robert mcclure <rmcclure@invw.org>

to: Jones.Enesta@epamail.epa.gov

 

date: Thu, Dec 17, 2009 at 10:33 AM

 

I will be reporting, then, that the agency could not provide any experts on coal tar to speak with InvestigateWest despite repeated requests.

 

Robert

 +++

 

Jones.Enesta@epamail.epa.gov

To: robert mcclure <rmcclure@invw.org>

Date: Thu, Dec 17, 2009 at 10:36 AM

 

It's Enesta, not Ernesta.

What is the latest you can wait for an interview?

 

 

Enesta Jones

Press Office, U.S. Environmental Protection Agency

 +++

 

robert mcclure <rmcclure@invw.org>

to: Jones.Enesta@epamail.epa.gov

date: Thu, Dec 17, 2009 at 11:20 AM

 

I apologize for getting your first name wrong, Enesta.

 

I was supposed to have had the story finished by now. I intend to finish by Monday morning and turn in the story then. I will be fact-checking early next week and, of course, if the agency were to contact me then, I would inform my editor and she could make a call. I assume we would include agency comment.

 

But I thought you said early January, Enesta. That's far too late.

 

Robert

 +++

 

Jones.Enesta@epamail.epa.gov

To: robert mcclure <rmcclure@invw.org>

dateThu, Dec 17, 2009 at 11:29 AM

 

I am not sure we can provide an interview, We certainly do not want a

'no comment.'

 

If you provide me some specific questions, I can hopefully provide you

some written responses by COB tomorrow.

 

Enesta Jones

Press Office, U.S. Environmental Protection Agency

 +++

 

robert mcclure <rmcclure@invw.org>

to: Jones.Enesta@epamail.epa.gov

Date: Thu, Dec 17, 2009 at 12:02 PM

 

Is an interview possible next week?

Robert

 +++

 

robert mcclure <rmcclure@invw.org>

to: Jones.Enesta@epamail.epa.gov

 

Date: Thu, Dec 17, 2009 at 1:29 PM

 

 

Enesta, as you requested, I am attaching a list of written questions.

You'll recall that a week ago today I wrote to you after you asked what my questions are, and I said this:

 

 

"One  question is: What is the agency doing about coaltar asphalt sealants? After I understand that, I'm sure I'd have additional questions. That's why I'd like to interview the EPA person working on this, or his or her supervisor if he or she is not available…"

 

 

As you must be aware, the answer to one question often spurs another question. That is why communcating by telephone rather than by written questions is more efficient, and more enlightening for the journalist. And I know that's your goal: to provide as much relevant information, as efficiently as possible, to journalists working to understand the important matters with which your agency deals.

 

Sincerely,

—

Robert McClure

(206) 718-0340

InvestigateWest. Because democracy depends on journalism. www.invw.org

 

(NOTE TO READERS: Here are my questions. Look below to see the agency’s answers, and judge for yourself how revelatory they are./RM)

 

Questions from InvestigateWest journalist Robert McClure:

 

+ Rep. Lyle Doggett initially asked EPA to look into the issue of PAHs in runoff from coaltar-sealed parking lots in 2003, and has asked a number of times since then for agency action. Why the delay in taking action?

 

+ It now appears, based on the letter from EPA’s Lek Kadeli to Rep. Doggett of 7/29/09, that the agency intends to study this problem until at least the middle of 2011. Is that right?

 

+ Is the EPA aware of the studies done by the USGS, the city of Austin and the University of New Hampshire on this topic?

 

+ Are those studies not sufficient basis for agency action?

 

+ EPA has called PAHs "highly potent carcinogens that can produce tumors in some organisms, even at single doses."(http://www.epa.gov/R5Super/ecology/html/toxprofiles.htm#pahs) Given the studies that show discernible harm to aquatic life, and that PAHs are running off coaltar-sealed parking lots, should use of coaltar sealants be banned?

 

+ What does EPA expect to happen at the conclusion of the testing mentioned in the 7/29/09 letter to Rep. Doggett?

 

+ Rep. Doggett asked that EPA identify a point person for contact on this issue. That was in June. Has this person been designated? If so, who is it?

 

+ Is the draft PAHs Human Health Risk Assessment still scheduled for release on Dec. 28?

 

 +++

 

Jones.Enesta@epamail.epa.gov

To: robert mcclure <rmcclure@invw.org>

ccKemery.Dale@epamail.epa.gov

Date: Fri, Dec 18, 2009 at 3:18 PM

 

Robert,

We tried our best to answer all your questions since all the right folks

who can speak to this issue are out until the first of the year. If for

any reason you have follow-up next week when I am out of the office,

please contact my back-up, Dale Kemery. He can be reached at

kemery.dale@epa.gov and 202.564.7839. He is copied on this email.

 

 

 

1.) Rep. Lloyd Doggett initially asked EPA to look into the issue of

PAHs in runoff from coaltar-sealed parking lots in 2003, and has asked a

number of times since then for agency action. Why the delay in taking

action?

 

EPA is currently in the process of performing an analysis of stormwater

runoff exposed to two commercially representative asphalt sealants. The

bench and pilot testing is being performed to determine if coal tar

sealants are a source of contamination in stormwater runoff.   To date,

both the bench and the pilot testing samples have been collected and

sent out for analysis.  Once the results are received, we will

statistically analyze the data and draw conclusions.  The project is on

schedule, and as expected, the final report will be completed in

September 2010.

 

EPA's draft IRIS human health assessment for PAH mixtures has completed

internal EPA review and is currently in the interagency science

consultation stage.  Upon completion of the interagency science

consultation, this draft IRIS assessment will be released for public

review and comment and independent external peer review, coordinated by

the EPA Science Advisory Board.   The availability of the draft

assessment and the start of the public comment period will be announced

in the Federal Register.  The draft is expected to be released for

public comment in late January 2010.  The date for the external peer

review meeting has not been determined, but it will be announced in the

Federal Register as well.

 

2.) It now appears, based on the letter from EPA’s Lek Kadeli to Rep.

Doggett of 7/29/09, that the agency intends to study this problem until

at least the middle of 2011. Is that right?

 

The research project is on schedule, and as expected, the final report

will be completed in September, 2010.

 

3.) Is the EPA aware of the studies done by the USGS, the city of Austin

and the University of New Hampshire on this topic?

 

Yes. Researchers have spoken to USGS researchers in Austin Texas, and

researchers at the University of New Hampshire.

 

4.)  Are those studies not sufficient basis for agency action?

 

 

This project's testing is another piece in the overall assessment of

coal tar sealants.

 

 

6.) What does EPA expect to happen at the conclusion of the testing

mentioned in the 7/29/09 letter to Rep. Doggett?

 

Once the research results are received from the analysis of stormwater

runoff exposed to two commercially representative asphalt sealants, we

will statistically analyze the data and draw conclusions that will be

captured in a final report in September 2010.

 

7.) Rep. Doggett asked that EPA identify a point person for contact on

this issue. That was in June. Has this person been designated? If so,

who is it?

 

The point of contact on this research project is Sally Gutierrez, the

Director of the National Risk Management Research Laboratory, for the

analysis of the two commercially representative asphalt sealants.  Peter

Preuss, the Director of the National Center for Environmental

Assessment, is the point of contact for the question related to the IRIS

Health Assessment’s.

 

 

8.) Is the draft PAHs Human Health Risk Assessment still scheduled for

release on Dec. 28?

 

EPA's draft IRIS human health assessment for PAH mixtures has completed

internal EPA review and is currently in the interagency science

consultation stage.  Upon completion of the interagency science

consultation, this draft IRIS assessment will be released for public

review and comment and independent external peer review, coordinated by

the EPA Science Advisory Board.   The availability of the draft

assessment and the start of the public comment period will be announced

in the Federal Register.  The draft is expected to be released for

public comment in late January 2010.  The date for the external peer

review meeting has not been determined, but it will be announced in the

Federal Register as well.

 

Enesta Jones

Press Office

U.S. Environmental Protection Agency

 +++

 

— Robert McClure