Above the Law -- Maybe NOT!

from the FERC Office of the General Counsel

 ... The source of your appeal is a determination dated March 22, 20 II, in which Leonard Tao, Director of the Office of External Affairs (Director), withheld names and addresses of individual permit applicants who are seeking to develop or otherwise use project lands and waters. In particular, you have asserted that the Commission has not provided adequate basis for its decision not to fully release the requested information and you have asserted that the Commission's response is inconsistent with the proper application of FOIA Exemption 6. See 5 U.S.C. § 552(b)(6). After reviewing your appeal, the underlying FOIA request, the Director's determination, and the pertinent legal authority, I am reversing the Director's determination


Michael A. Bardee
General Counsel

Since when are the FERC and AEP above the law …

Each January Appalachian Power Company forwards a report on SMP activities for the previous year to the FERC.
AEP files their annual reports as CONFIDENTIAL so the public-at-large cannot view them. Recently TCRC and others requested these reports be declassified so the public-at-large and localities can evaluate how the SMP is being implemented and whether the FERC is exercising sufficient and necessary oversight. Since AEP refused to supply these reports, formal requests were made to the Freedom Of Information Act (FOIA) officer at FERC.
FERC refuses to declassify the annual reports and will only provide redacted reports, devoid of all names, addresses, and map locations. FERC refused to even supply a redacted copy of the 2010 report. FERC claims (FOIA Exemption 6) that the information in these reports is the equivalent of personnel or medical records and its release would constitute an “unwarranted invasion of privacy.” 
Each permit that AEP grants in recorded with the Clerk of the Court in the appropriate County and thus becomes part of the public record. Exactly whose privacy are we protecting -- AEP’s or FERC’s or both?
AEP won’t make these reports public because it would reveal its tyrannical, arbitrary, and capricious enforcement actions; and the FERC doesn’t want these records released because it would reveal it has utterly failed to regulate AEP and is the muscle behind these overbearing enforcement policies.
We’ve looked at the statistics for permit approvals and violation resolution. For example in 2009:
  • The AEP enforcers recorded 202 violations, but as of February 2010 only 15 were cleared.
  • Inspections for permit reassignments resulted in 18 violations, but it took an average of 213 days to re-assign those permits to the new owners; reassignment durations ranged from 652 to 36 days.
  • Of the 26 violations recorded in 2008, only 5 were resolved (as of February 2010) and it took between 175 and 706 days to resolve them. Of those that remained unresolved, they have been open for between 450 to 727 days (as of February 2010) for an average of 535 days.
These statistics reveal there are serious problems with AEP’s enforcement policy. Clearly the FERC is ok with this as they have accepted this report. We however are not ok with FERC.
The annual SMP reports contain the following:
(1) A list of all dredging activities;
(2) A list of all permits issued for modifying the vegetative buffer or for the removal of vegetation and measures implemented to mitigate for the removal of woody debris;
(3) A list of all complaints, compliance, and enforcement actions, and measures taken to resolve these actions;
(4) A list of all permit applications, including information concerning when they were received, the activity requested (including the size and parameters of the request), when they were granted or denied, and when the activity performed or the status of the activity if it is still pending;
(5) A list of all variances requested, including information concerning when they were received, why they were granted or denied or any action taken to process the request, and when the request was acted on.
(6) A list of compliance inspection results and AEP actions taken to bring violators into compliance.
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Apr 25, 2011, 6:58 AM
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Apr 25, 2011, 6:58 AM
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Jul 23, 2011, 5:34 AM