Don Smith Executive Director donsmith@wvpress.org 304-342-1011, ext. 160 Toni Heady Advertising Director theady@wvpress.org 304-342-1011, ext. 164 Date: 8/1/16 Attention: Division of Air Quality Director William Durham Cabinet Secretary of DEP Randy Huffman Gov. Earl Ray Tomblin Topic: Proposed Legislative Rules 45CRS13 Hello, I’m Don Smith, executive director of the West Virginia Press Association: Thank you for this opportunity to address the Division of Air Quality’s proposed 2017 legislative rule 45CRS13, in particular section 45-13-18 Public Review Procedures. The West Virginia Press Association and its 77 member newspapers oppose the proposed rule, which, in summary, would remove public notification by Class I and Class II legal advertisements for stationary sources of air pollutants in a newspaper of general circulation in the area where the sources would be located, in favor of placing the notification on a WVDEP/DAQ webpage. The WVPA and its newspapers think the proposed rules represent a tremendous disservice — as well as real and measureable harm — to the 3422 Pennsylvania Avenue, Charleston, WV 25302 Don Smith Executive Director donsmith@wvpress.org 304-342-1011, ext. 160 Toni Heady Advertising Director theady@wvpress.org 304-342-1011, ext. 164 residents of West Virginia and, in particular, to the residents of each region designated in the respective permit application. In my remarks, I want to address facts and the vested interest the WVPA and its newspapers have in this issue. West Virginia newspapers are paid to run legal advertisements and public notices. That is a fact. Throughout our state’s history, government agencies have been required to alert citizens of certain government activities that may impact a local community, providing citizens with an opportunity to stay informed and take action when necessary. Newspapers have long partnered with government agencies by publishing public notices, enabling government agencies to be fully transparent and accountable to citizen taxpayers. The West Virginia Legislature sets the cost of legal advertising. That is business and West Virginia newspapers stand by their value. There is no better way of spreading news through a local community than the local newspaper, which is why the newspapers are the primary retail advertising source in their communities. The WVPA is very interested to learn the reason for the proposed rules and to see the evidence documenting that a permit placed on a DEP/DAQ webpage 3422 Pennsylvania Avenue, Charleston, WV 25302 Don Smith Executive Director donsmith@wvpress.org 304-342-1011, ext. 160 Toni Heady Advertising Director theady@wvpress.org 304-342-1011, ext. 164 would provide the same public notice to the residents of the impacted areas as a legal advertisement in a community newspaper. However, the vested interest I’m referring to is the presence our newspaper facilities and the homes of our employees in every county in West Virginia. Our employees, like all West Virginians, want to know what is happening in the area where they live and know the local newspaper as the source for that information. In today’s environmentally aware atmosphere — and in a state with documented serious health issues — it’s hard to understand the reason the WVDEP would decide to reduce public notification for a “stationary source of air pollutants” application to the people living actually living in an area being considered. We can think of few notifications more valuable, perhaps even lifesaving, than information on a new source of air pollutants. The WVPA and its newspapers think the proposed rules — when viewed in terms of impact on residents, workability and cost — greatly reduce public access in West Virginia, create problems for local and state residents and represent 3422 Pennsylvania Avenue, Charleston, WV 25302 Don Smith Executive Director donsmith@wvpress.org 304-342-1011, ext. 160 Toni Heady Advertising Director theady@wvpress.org 304-342-1011, ext. 164 tremendous liabilities for the state of West Virginia and all parties involved in such projects. There are a host of reasons why it’s important to continue to print public notices in newspapers, especially at this time in West Virginia. Public notice laws were created to notify the public of government actions that may affect the public’s interests or rights. Residents rely on local newspapers for this information. Providing public notice is not a formality, it’s a responsibility … a huge responsibility. These rules would take permit applications for designated stationary sources of air pollutants, which would seem to be of tremendous public interest, out of plain sight and bury them in the tangle of documents on governmentdesignated websites. Anyone looking for the information would have to know exactly what it is they’re searching for and when and where to look. Rather than going to their local newspaper where they have always gone to see these legal advertisements, citizens would be left searching for “a needle in a haystack.” 3422 Pennsylvania Avenue, Charleston, WV 25302 Don Smith Executive Director donsmith@wvpress.org 304-342-1011, ext. 160 Toni Heady Advertising Director theady@wvpress.org 304-342-1011, ext. 164 The public cannot reasonably be expected to keep track of governmental activities when there are literally hundreds of state agencies as well as counties, municipalities, special districts and school districts all with their own websites. Newspapers serve as the sole aggregate source for all public notices in the impact areas. Large portions of West Virginia are very rural and still do not have reliable Internet access or even cell phone service. Many in poor and senior communities cannot readily view Internet notifications. How could a citizen gain access to such vital information if they do not have access to Internet? Ironically enough, it often seems items such as a “stationary source of air pollutants” end up in economically challenged areas of our counties and not in the city centers or new subdivisions that have adequate Internet service. Local newspapers notify the entire community. Newspapers effectively “push” the public notices out to the public. If notices are only on government websites, it requires citizens to look for what they need to know. Publishing a public notice in a community newspaper enables citizens to be aware of 3422 Pennsylvania Avenue, Charleston, WV 25302 Don Smith Executive Director donsmith@wvpress.org 304-342-1011, ext. 160 Toni Heady Advertising Director theady@wvpress.org 304-342-1011, ext. 164 and understand what is happening in their neighborhood, city or town. That is the reason notices must be published in the county impacted. It prevents the notices from being hidden in a distant paper or a massive database. Government files are just that – files. Putting a permit application or a corporate document in an electronic database is not public notice. Publishing in a newspaper, bringing the matter directly to the attention of the community is public notice. Also government posting of public notices on a government-controlled website creates the potential for abuse and could result in public distrust. As an example, with permit applications for stationary sources of air pollutants – which could represent tremendous value in government contracts and/or controversial projects up for consideration, it might be tempting for government officials to manipulate the timing or access to these documents. At the very least, any issues with the posting or the government website would give the appearance of abuse. Newspapers offer objective, third-party neutrality. Publishing public notices in newspapers informs a wide audience in a local community of a government agency’s action; reaching citizens that are passive information 3422 Pennsylvania Avenue, Charleston, WV 25302 Don Smith Executive Director donsmith@wvpress.org 304-342-1011, ext. 160 Toni Heady Advertising Director theady@wvpress.org 304-342-1011, ext. 164 seekers and not aware that important notices impacting the community are on a government agency’s website. Further, publishing public notices in the newspaper serves an important audit role as the newspaper’s status as an independent third party is important for legal reasons to verify that the government agency has given the public notice. That doesn’t even take into consideration the liability – and loss of public confidence – an agency would experience if the government website suffers server issues and becomes inaccessible, the information is lost, manipulated or found to be in any way incomplete. We ask that you compare the cost of publishing these permits to the total dollar amount of projects and the liability in question. If the cost is an issue, would it not make more sense to include the actual cost into the permit fee structure and keep the public informed? In terms of keeping the taxpayers informed, placing advertising in newspapers is a very effective and cost-efficient part of government doing the 3422 Pennsylvania Avenue, Charleston, WV 25302 Don Smith Executive Director donsmith@wvpress.org 304-342-1011, ext. 160 Toni Heady Advertising Director theady@wvpress.org 304-342-1011, ext. 164 people’s business. With government websites, government entities will have to pay consultants or undertake the massive process internally to develop, maintain and – most importantly – secure websites for the distribution of a public notice. Securing websites so that the public notice is not altered or deleted by hackers will be the biggest expense facing government entities. With publication in printed newspapers, government officials do not have to worry that hackers will put into question whether the public was informed on important public issues. Clearly, developing and maintaining these dependable and secure government-controlled websites would greatly reduce, if not completely eliminate, any proposed savings on the publication. If a government website goes down today, it’s an inconvenience. With a government-controlled webpage, if the government website goes down during a public comment period, it could be a violation of state code and public 3422 Pennsylvania Avenue, Charleston, WV 25302 Don Smith Executive Director donsmith@wvpress.org 304-342-1011, ext. 160 Toni Heady Advertising Director theady@wvpress.org 304-342-1011, ext. 164 notification. If a government website crashes, was the publication requirement met? If action based on a permit is later challenged for lack of public notice, who is liable? The state? The applicant? The public and the source of the notice are able to verify that the notice was published and not altered once published. With a newspaper legal advertisement, an affidavit is provided by the publisher, which can be used in an evidentiary proceeding to demonstrate that a true copy was published as well as the exact wording that was used. It is difficult and costly to provide authentication of Internet site publications because Internet sites can be and often are edited after initial publication and it becomes virtually impossible to prove that any stakeholder witnessed any particular element of an Internet site at any given time. With a government controlled website, the government body will be the sole party both verifying that the notification was drafted, published, not edited once published, and posted on a state government Internet site for a particular length of time. In fact, there is great concern that once the notification is removed from 3422 Pennsylvania Avenue, Charleston, WV 25302 Don Smith Executive Director donsmith@wvpress.org 304-342-1011, ext. 160 Toni Heady Advertising Director theady@wvpress.org 304-342-1011, ext. 164 a government body’s Internet site or its platform is updated, there will be no record that the public notice ever existed. West Virginia doesn’t want to be in a position where government agencies are released from the obligation to notify the public of what they are doing before a decision is made. This state has worked hard to increase and maintain openness. Closing the door on disseminating this information would jeopardize the open and transparent government processes upon which West Virginians rely. Public notices need to be made available as widely as possible. Newspapers are already addressing the issue of greater availability. Most newspapers are on the Internet and post their public notices via their websites. Many West Virginia newspapers upload their notices to their own website and many are now posting public notices to the West Virginia Press Association’s website wvlegals.com on a daily or weekly basis. With this growth, state agencies get the value of printed legal advertisements and the benefit of internet listings at no additional costs. These 3422 Pennsylvania Avenue, Charleston, WV 25302 Don Smith Executive Director donsmith@wvpress.org 304-342-1011, ext. 160 Toni Heady Advertising Director theady@wvpress.org 304-342-1011, ext. 164 Internet listings are provided at no cost or liability to the publishing government body. The WVPA website allows users to enter “key word” searches. For a demonstration, go to www.wvlegals.com. The site is free to the public and to government agencies. It’s funded by West Virginia’s newspaper industry and gives additional value to the paid public notice print advertising in West Virginia newspapers. This site is an example of what many officials support: The use of private enterprise instead of public dollars to provide a demonstrably valuable public service. What publication of public notice means to West Virginia: The idea of ending any public notice and putting it, instead, on government websites may be the classic penny-wise, pound-foolish position. It reduces the placement and storage of legal public notices to the mere reproduction of words instead of public notification; however, it’s much more than that. It’s about the preservation of an evidentiary record. Viewed from the standpoint of the enduser of such ads, the printing of them is a far more cost-effective method of 3422 Pennsylvania Avenue, Charleston, WV 25302 Don Smith Executive Director donsmith@wvpress.org 304-342-1011, ext. 160 Toni Heady Advertising Director theady@wvpress.org 304-342-1011, ext. 164 assuring the integrity of this evidentiary record than installing the safeguards that would be required if government were to be trusted with this job itself. Remember, West Virginia newspapers publish public notices in print at a cost set by the Legislature and place them online at no additional cost. Additionally, the newspaper industry is funding wvlegals.com Thank you for your time and consideration, Don Smith Executive Director 3422 Pennsylvania Avenue, Charleston, WV 25302