Key Points: Who’s protecting our right to know?

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By Steve Key

The Environmental Protection Agency responded to HSPA’s letter of concern about IDEM’s decision to replace public notice advertising with government website posting to give notice of hearings, as required by the Clean Air Act.

Unfortunately and not surprisingly, Deputy Assistant Administrator Janet McCabe didn’t acknowledge any need to step into the fray or change the EPA’s current regulations and guidance pertaining to public notification.

In broad terms, she spoke of the EPA policy to be “media neutral on the method of notice … as long as the state has determined that the public would have routine and ready access to such alternative publishing venues.”

The answer is illustrative of the lack of understanding many have concerning public notice and the difference between placing that notice in someone’s hands compared to making that notice accessible to someone.

In my letter to the EPA, I argued that media neutrality should apply only when it can be shown that the alternative to newspaper publication actually fulfills the requirement for public notice.

Indiana Department of Environmental Management Commissioner Thomas Easterly made it clear he believes the posting of the notices on the agency website adequately reaches those known to regularly comment or attend the hearings.

As Rep. Matt Pierce, D-Bloomington, said – IDEM’s website reaches “the usual suspects.”

So IDEM is satisfied that its web-posted notices are viewed by an average of 105 unique visitors a week.

This is compared to the combined circulation of the five Indiana newspapers IDEM was using to publicize the notices – 382,100. Taking into account the average number of people who read a particular copy of a newspaper, IDEM was placing notices in the hands of 802,400 people a week.

Public notice is a policy intended to reach citizens in general, not those with a special interest in compliance with the Clean Air Act.

The public in general may trust government officials to do right by them, may be too busy to act, or may be apathetic to government actions. Engraved invitations hand-delivered to homes wouldn’t guarantee a crowd at an IDEM hearing.

But attendance isn’t necessarily the goal of public notices. The opportunity to be involved is the key.

It’s an obligation of government agencies in a democracy to let citizens know what is being contemplated, proposed or acted upon. The public can become involved or not, but they have the opportunity to hold their government accountable.

Public notice also serves to protect the public agency from accusations that it acted secretly because it can show that notice was placed in the hands of a large cross-section of the public.

The posting of notices on a government website that the public doesn’t know exists doesn’t do the job.

Common sense says average citizens have no inkling that they need to check IDEM’s website periodically on the chance that there may be an upcoming hearing that would spur them to action.

Numerous surveys conducted in different states show that the public expects and wants its government units to place public notices in their local newspapers rather than be solely on a government website.

Pulse Research of America this year in Indiana found more than 70 percent of adults preferred public notices in newspapers while less than 2 percent preferred government website postings.

IDEM and the EPA don’t appear to hear or care what most taxpayers want in this case.

Steve Key is executive director and general counsel for HSPA.

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