Smith ex rel. Smith Butz, LLC v. Pa. Dep't of Envtl. Prot.
Decision Date | 08 May 2017 |
Docket Number | No. 1431 C.D. 2016,1431 C.D. 2016 |
Parties | Kendra SMITH ON BEHALF OF SMITH BUTZ, LLC, Petitioner v. PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent |
Court | Pennsylvania Commonwealth Court |
John M. Smith and Kendra L. Smith, Canonsburg, for petitioner.
Jacqueline C. Barnett, Director, General Law Division, Harrisburg, for respondent.
Donna M. Doblick, Pittsburgh, for intervenors Core Laboratories LP and ProTechnics.
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE JULIA K. HEARTHWAY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY SENIOR JUDGE PELLEGRINI
Kendra Smith, on behalf of Smith Butz, LLC (Requester), petitions for review of a Final Determination of the Office of Open Records (OOR) denying in part her request to the Pennsylvania Department of Environmental Protection (DEP) for access to records relating to Core Laboratories d/b/a ProTechnics, division of Core Laboratories, LP (ProTechnics), under the Pennsylvania Right-to-Know Law (RTKL).1
On February 1, 2016, Requester submitted a RTKL request, later amended,2 for all records held by the DEP relating to ProTechnics, a business that performs drilling diagnostics using radioactive tracers. The request sought records related to ProTechnics' activities at all drill sites throughout the Commonwealth, including:
(Reproduced Record (R.R.) at 3a–4a.)
Because the request was statewide in scope, the DEP tasked its Central Office as well as its Southeast, Northeast, Southcentral, Northcentral, Southwest and Northwest Regional offices to gather those documents that responded to the request. On February 8, 2016, the DEP invoked a 30–day extension. See Section 902(b) of the RTKL, 65 P.S. § 67.902(b). On March 9, 2016,3 the DEP partially denied the RTKL request.
On March 28, 2016, Requester appealed to the OOR, challenging the DEP's denial and giving reasons why the records should be released. The OOR then directed the DEP to notify any third parties that may be affected by the release of the documents of their right to participate in the appeal. See Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c). Soon thereafter, ProTechnics requested to participate in this appeal, and the OOR granted the request. The OOR then invited all parties to supplement the record.
The DEP then submitted a position statement along with ten affidavits4 and privilege logs.5 The DEP's position statement contended that it was partially denying the RTKL request because the records were exempt under the Radiation Protection Act (RPA)6 exception, the attorney-client privilege and/or the attorney work product doctrine,7 as well as certain RTKL exceptions.8
ProTechnics submitted a position statement contending that certain records were exempt from disclosure because they contain trade secrets and/or confidential proprietary information. See Section 708(b)(11) of the RTKL, 65 P.S. § 67.708(b)(11). In support thereof, ProTechnics attached the sworn affidavit of Will Williams, the Director of U.S. Operations for ProTechnics.
On July 27, 2016, after reviewing the submissions of the parties, the OOR issued its final determination partially denying Requester's appeal. The net effect is that the DEP was not required to release "all of the identified records in its privilege logs except for a small subset of records regarding ProTechnics' license information and limited information regarding gas well pads." (DEP's Brief at 8.)9 Requester then filed this appeal in which she contends that the OOR erred in not releasing the requested records for a number of reasons.10
Requester contends that under the DEP's RPA regulation, she is entitled to its investigation reports for three separate incidents regarding well sites11 where ProTechnics used radioactive tracers.
The RTKL exempts from disclosure any records relating to an agency investigation.
Under its regulations promulgated under the RPA,12 the DEP exempts from disclosure only "[a] report of investigation, not pertaining to safety and health in industrial plants, which would disclose the institution, progress or results of an investigation undertaken by the Department." 25 Pa. Code § 215.14 (emphasis added).13 Requestor contends that since the regulation does not exempt from disclosure any records of investigation "pertaining to safety and health in industrial plants," those records should be disclosed. The DEP contends that the records need not be released because a "well site" is not an "industrial plant."
The term "industrial plant" or its component words are not defined in the RPA or its regulations. When terms in a statute are not defined, "[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage. ..." See 1 Pa.C.S. § 1903(a).14 Because both parties agree that what takes place on a well pad is industrial in nature, the question is does a "well site" fall within the definition of "plant."
Webster's Ninth New Collegiate Dictionary 899 (1989) defines "plant" as:
Id. (Emphases added.)
The DEP contends that a well site is not a "plant" within that definition as a well site is not a "factory or workshop" because to fall within those terms the activity must take place in a building. Because a well site is not enclosed in a building, it contends that a well site is not a plant. The DEP also contends that its interpretation of what is a "plant" should be given deference because it is charged with enforcing the regulation at issue.
For its part, Requester contends that a well site is a "plant" because all the drilling apparatus, holding tanks and other machinery that produce natural gas fall within the definition of "plant" as that term is commonly understood to mean "the land, buildings, machinery, apparatus, and fixtures employed in carrying on a trade or an industrial business." Id.
In deciding what is meant by the term "industrial plant," initially, we point out that while we agree with the DEP that, normally, deference is given to an agency's interpretation of its own ambiguous regulation, giving deference here is "undoubtedly inappropriate ... when it appears that the interpretation is nothing more than a ‘convenient litigation position.’ " Christopher v. SmithKline Beecham Corporation , 567 U.S. 142, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012) (...
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