EPA Eliminates Mandatory Newspaper Notice for Clean Air Act Permits

epa_logo-jpgThe Environmental Protection Agency (EPA) recently announced it was eliminating the mandatory requirement to provide newspaper notice of permitting and implementation actions under the Clean Air Act (CAA). The rule, which will take effect 30 days after it is published in the Federal Register, The rule requires notification on EPA’s new “National Public Notices Website” and allows other agencies that implement EPA-approved CAA programs to publish notices on their websites as well.

The rule doesn’t prevent permitting authorities from supplementing notice on their own websites with newspaper notice. In addition, it doesn’t override state laws requiring state and local environmental agencies to use newspapers to notify the public about EPA-approved permitting actions under the CAA. In those states, new laws would have to be passed to eliminate the newspaper-notice requirement.

EPA responded at length to comments PNRC submitted earlier this year (PDF) in response to the agency’s original proposal. (See pp. 28-38 of this “Internet version” of the rule (PDF) obtained by PNRC.) EPA appears to have been most sensitive to PNRC’s argument that eliminating newspaper notice would disadvantage rural, elderly and low-income Americans without Internet access. But the agency swept aside those concerns by citing a 2010 study that showed 44 percent of citizens “living below the poverty line” use library computers.

“We do not dispute that some individuals may continue to rely on newspapers rather than the Internet to obtain information and that there may be greater concentrations of such persons in some communities,” the agency said. “However … this does not take away the added benefits cited by other commenters of reaching additional individuals through the Internet and providing notice continuously during the public comment period.”

EPA disagreed with PNRC’s contention that public notices should be published by independent third parties, not the government agencies whose actions are subject to notification. But rather than address this “fox guarding the henhouse” argument, EPA noted instead that “(PNRC) has not demonstrated that newspapers generally exercise independent editorial control over the content of legal notices or … otherwise seek to check the veracity of what the newspaper company is paid to print in these sections of its publication.”

EPA was persuaded by PNRC’s arguments that public notices published in newspapers can provide verification that is absent on the web, and that EPA.gov doesn’t presently include hyperlinks referring users to the agency’s public notices. In response to those concerns, EPA adopted recommendations that weren’t included in its original proposal, encouraging permitting authorities to “certify” e-notice dates and “include hyperlinks” to public notices on their websites.

Perhaps the most surprising aspect of the new rule was EPA’s announcement that since mid-2015 it has been developing a “National Public Notices Website” to publish notices for all EPA actions subject to notice requirements. The agency expects the website to be completed and implemented by the end of the year, and it welcomed other permitting authorities to review the site for best practices. This announcement tells us, of course, that EPA began developing the site about six months before it issued its proposal to eliminate newspaper notice, but decided not to mention it until now.

The new rule follows the Obama Administration’s 2011 Executive Order requiring federal agencies to “end unnecessary printing” by “making information available online for the public.”

Q&A: Steve Key, Hoosier State Press Association

Steve Key

The Hoosier State Press Association has become a service bureau for public notices for the Indiana attorney general’s office. PNRC interviewed HSPA Executive Director Steve Key to learn more about the program.
PNRC: Steve, please tell us a little about how the program got started.
Steve Key: The Attorney General has the responsibility of notifying the public about unclaimed property, like uncashed dividends, escrow balances or property held by courts and other government agencies. In Indiana, the AG was seeking to eliminate the newspaper publication of unclaimed property lists and to replace them with postings to government websites. 
PNRC: What was their motivation?
Key: Publishing the list was a burden for them. They had to contact 92 separate newspapers and coordinate the publishing of 92 countywide unclaimed property lists. To say the very least, it wasn’t their core competency. From their perspective, it would have been much easier just to post the list on their website.
PNRC: So what happened?
Key: It all started with a legislative battle where we were on opposite sides. They tried to eliminate their responsibility to run newspaper ads. We prevailed. Afterwards, we sat down with the AG’s staff and offered to relieve them of their burden. They accepted the offer.
PNRC: How does the program work?
Key: The AG sends us their lists and HSPA publishes them in regional tabloids for insert in newspapers. The tabloids actually provide greater reach for the listed names and draws greater attention to the public notice advertisements as a stand-alone product than they ever received as ads in the classified section. Originally, the lists were distributed in three flights across the state, so that the AG could coordinate with additional advertising. The response when each flight hit the newspapers was so great, that the AG was forced to hire additional telephone operators to handle the crush of calls. That got their attention.
PNRC: What happened next?
Key: Over the past few years, the flights have expanded from three to five to smooth out the bump in calls to the AG and to eliminate their need to hire emergency part-time help. The AG is now a supporter of public notice in newspapers. In my view, it’s an example of turning an opponent into a proponent.
PNRC: My understanding is that HSPA now also serves as a service bureau for the state Alcohol and Tobacco Commission. Does that program differ in any way from the one with the AG? Can you tell us how?
Key: The monthly 92-county ATC meeting notices are merely a placement program for the state agency responsible for coordinating the county hearings. It’s a one-order, one-bill process for the state ATC and they have agreed to pay us a small per notice fee.
PNRC: How long have you been doing that program? How is it going so far?
Key: We’re into our second year and the ATC attorney recently told me the process is going “great” from their perspective.
PNRC: What has been the financial impact of these programs for HSPA? How about your member newspapers?
Key: Our members continue to publish the notices and collect the publication revenue. That wouldn’t be true if either the AG or ATC had eliminated the newspaper notice requirement. As to HSPA, we cover our costs with the ATC placements and make a profit from the AG contract — not for the placements, but for the service we do in creating the tabloids and coordinating the printing with one of our member newspapers.
PNRC: Have there been any challenges or downside to these programs?
Key: Unfortunately, the biggest challenge is with some of our members. We have the occasional newspaper that fails to run the ATC notice when requested, which forces us to scramble to get it run so the meeting doesn’t have to be rescheduled. The second challenge is collecting tearsheets in a timely manner. We’ll have one or two newspapers that don’t send them immediately, which holds up the billing for the month’s 92 placements. That can delay payment from the state, which triggers a credit hold by a newspaper, which requires us to call the publisher to explain the situation so a particular notice can be published on time. 

Customer service can be poor because some papers take public notice advertising for granted and don’t get excited about a $10.50 ad. Unfortunately, they fail to realize that lack of customer service can endanger the entire concept of public notice in newspapers.

Florida Governor Issues Order Requiring Immediate Notice of Pollution Incidents

florida_governor_rick_scott_2Florida Gov. Rick Scott last week ordered the Florida Department of Environmental Protection (DEP) to develop new rules requiring public and private facilities “to provide notification of incidents of pollution within 24 hours to DEP, local governments and the general public through the media.” DEP quickly issued an emergency order increasing notification requirements for pollution incidents, as well as a notice of rulemaking to make it permanent after the emergency expires in 90 days. Under the new rules, facility owners must notify “local broadcast television affiliates and a newspaper of general circulation in the area of the contamination.” The rules significantly change the current “patchwork quilt of notice requirements,” according to an attorney writing in the Daily Business Review (registration required).

The governor’s action came in response to the furor raised when DEP for three weeks “kept quiet about a massive sinkhole at a Polk County phosphate operation that dumped 215 million gallons of contaminated water into the (state’s) aquifer,” according to the Tampa Bay Times. Public officials originally defended the secrecy by noting that current law didn’t require the public to be informed about the incident. The governor said he will also propose a law next year to codify the new requirements.

Henninger Presents Public Notice Design Tips at Conference

ed_henninger_1Ed Henninger (photo courtesy Stan Schwartz, NNA) challenged publishers to add some design spice to their public notices during his speech at PNRC’s Best Practices conference on Sept. 22 in Franklin, Tenn. “If you make public notices difficult to read and treat them like an afterthought, nobody is going to look at them,” he said. Henninger followed with a humorous, rapid-fire presentation offering the following ideas:

  • Use a visual header in the public notice section (e.g., photo of the local courthouse)
  • Publish the contact information of public notice personnel
  • Use headlines to break up groups of public notices
  • Make lengthy notices more readable with columns and/or subheads
  • For auction notices, include photos of the items to be auctioned
  • Make public notices look like news, because that’s what they are
  • Publish a map to identify locations of the events promoted in the public notice section
  • Publish an index of public notice ads on the front page and/or in the public notice section
  • Provide the web address for each notice published in your paper
  • Publish old-timey photos in the public notice section (“People love old-timey photos”)
  • Include a “why public notices are important” statement in the public notice section
  • Add a glossary of public notice terms on the public notice page

Henninger offered to redesign public notices for free for the first publisher who called him after the conference. He also mentioned his grant program that helps to make redesigns affordable for newspapers with limited revenue.

PNRC Holds First Conference Devoted to Public Notice

pnrcThe Public Notice Resource Center’s premier public notice conference packed the room Sept. 22 on the first day of the National Newspaper Association’s Annual Convention in Franklin, Tenn. The half-day symposium featured panels on best practices, legislative strategy and the importance of publishing public notices on the web, and presentations on design and the state of public notice. The conference was sponsored by Tecnavia, Nevada Legal News and the Illinois Press Association.

“Whether newspapers remain in print for another hundred years or become totally digital or somehow get wired directly into Apple watches, we can still be the providers of public notice,” said PNRC President Brad Thompson, CEO of Detroit Legal News Co., in his introduction. “But only if we do the job right.” He explained the goal of the conference was to provide publishers with tools and tips to meet that challenge.

The legislative panel that followed addressed publishers’ role in helping the newspaper industry protect public notice in state capitals. Panelists described battles narrowly won and advised publishers to form and maintain relationships with elected officials and government agency personnel. Matt Paxton, publisher of the News-Gazette in Lexington, Va., also counseled the audience to pay close attention to what the other side is saying and fact-check their data. In Virginia, Paxton said, a legislator who sponsored a bill moving construction bid notices in Virginia Beach to government websites refused ever to support another public notice bill pushed by city officials after learning they had overstated the city’s annual public notice expense by $600,000.

The next panel discussed the strategic utility of the press association websites that now aggregate public notices in most states, and stressed the importance of publishers’ posting notices to their own sites and to their association’s. Every panelist agreed the websites serve a vital role in defending public notice. Several states have even taken the step of enacting eric_barneslegislation requiring public notices to be posted on their press association’s site. Panel moderator Eric Barnes, publisher and CEO of Memphis Daily News Co. (photo on right, courtesy Stan Schwartz, NNA) described the impact the law has had in Tennessee, and urged other newspaper groups to “get ahead of the game” and push for similar legislation in their states. Beth Bennett, executive director of the Wisconsin Newspaper Association, expressed frustration that lawmakers in her state continue to press for third-party online public notice providers even though they already have one in WNA.

PNRC co-director Tonda Rush presented an overview of PNRC’s “Best Practices for Public Notice” guide, which was released the day of the conference. She encouraged publishers to read the guide and challenged them to adopt the practices and encourage others to do the same. “Newspapers still have the greatest reach and print is still the most reliable platform for public notice,” she said. “But our game could use some work, and these best practices are a good place to start.”

The final panel drilled deeper into the best practices, including promoting readership and providing great customer service. Reporting the news inherent in public notices and citing the notices in the resulting coverage is a great way to draw reader attention, said Landmark Community Newspapers Editorial Director Benjy Hamm. Wayne Curtis, group publisher of ALM Media, suggested forming close relationships with local sheriffs, probate judges, and clerks of court (“the triumvirate”), and incorporating customer service metrics for public notice into employee reviews. Teri Saylor, owner of Open Water Communications, addressed the challenges that changing technology poses for maintaining newspaper archives. She also urged listeners to adopt formal third-party archiving agreements.

Ed Henninger gave a practical and entertaining design presentation that is covered in a separate post on this site.

Motivated by the conference’s success, at its board meeting the following day the PNRC Board of Directors decided to step up the organization’s production of public notice programming for the newspaper industry. In the future, look for more presentations, conferences and webinars from PNRC, to be held in conjunction with other newspaper groups.

PNRC Issues Best Practices Guide

47156904-3878-449e-979c-84e51f591869The Public Notice Resource Center issued “Best Practices for Public Notice” on Sept. 22 at its first industry-wide symposium on public notice. The brief guide is based on research by PNRC that identified the practices that publishers must follow to protect newspaper public notice and the public’s right to know. It includes easy-to-read, graphical presentations of the best practices as well as the full document issued by the charitable organization, whose mission is to collect, analyze, and disseminate information on public and private notifications to the public through local newspapers, and to educate the public on the value and use of its right to know.

PNRC will work with state press associations to make copies of the guide available to their member publishers.

New York Bill Allows Emailing of Meeting Notices to Newspapers

email_shiny_icon-svgGov. Andrew Cuomo signed a new law clarifying that public meeting notices required by state law may be emailed to newspapers for publication. A review of the applicable law indicates the statute formerly stated merely that notice “shall be given to the news media.” The bill signed by Gov. Cuomo adds the words “or electronically transmitted” to the statute. “This is a positive step that will save time in getting notices to the media and therefore getting them out to the public,” the president of the New York State Town Clerks Association told the Albany Times Union. The new law also requires notices of government meetings that are live streamed to the public to include the web address of the site streaming the meeting.

Government Website Leaves Residents with Little Notice about Bee-Killing Zika Spray

dead_beeMany residents in Dorchester County, South Carolina were upset by the lack of notice from government officials about a recent aerial insecticide spray that killed millions of honeybees, according to USA Today. The county sprayed naled, which is harmful to bees and other insects, in order to kill mosquitos that are known to carry Zika.

A local TV news station reported that many people said they had been notified by phone only 10 hours before the spray. County officials responded by noting that they had also posted a notice on the county website two days earlier.

Publisher Loses Public Notice Contract, Decides to Run Notices For Free

Calaveras County, California is in the throes of tumultuous change. Located in the Sierra Nevada foothills, the mountain community is considering whether to replace the 600 homes destroyed last year by wildfires with medical marijuana farms. The issue has opened a huge debate that has engaged many of the county’s approximately 45,000 citizens and led to a series a ballot measures.

It’s the kind of place that really needs its public notice.

BKphotoImagine, then, the anguish of Calaveras Enterprise Publisher Bruce Kyse (photo on left) when he learned his paper had lost the county’s public notice contract to the Valley Springs News, a much smaller competitor that has until now been distributed only in one small corner of the county. To make matters worse, the twice-weekly Enterprise failed to submit a bid and lost the contract because Kyse hadn’t read the notice requesting bids that was published in his own paper.

A lesser man would have raged at the fates and blamed others for his loss. By contrast, Kyse penned an editorial extolling the importance of public notice and pledging to continue to run the county’s legal notifications even without compensation.

“Calaveras County is going through unprecedented change at the moment,” Kyse wrote. “County officials and county residents are grappling with difficult and critical decisions that will chart the course for the county for decades to come. This is not the time to make it more difficult for county residents to obtain important information because of an error by the publisher of the only countywide newspaper. So, until some other solution is found, the Enterprise, at its own cost, will run the county’s legal notices in all its print and digital formats to make sure residents can get prompt and complete access to the county’s legal notifications.

PNRC President Speaks to County Clerks Group

083116-150x150-web“Public notice is truly a partnership between newspapers and local government,” PNRC President Bradley Thompson told the Michigan Association of County Clerks at their summer meeting on Aug. 22 in Grand Rapids. “We both have mandates to do it properly.”

Thompson (photo on left courtesy of Michigan Press Association), chairman and CEO of the Detroit Legal News Co., used the remainder of his speech to define what proper public notice entails, and to place it in context as part of the three-legged stool of transparent government: Public notice, open meetings and freedom of information.

“The Q&A and the clerks’ comments were much more interesting than my prepared remarks,” Thompson told us after the speech. “My major takeaway from that part of the program is that the clerks do look at us as partners in informing the public. It’s also clear they think we could be doing more to help them.”

The list of requests from the clerks included ensuring that public notice advertisements are always run properly, making them easier to read and find in both print and online formats, and helping them educate other elected officials regarding their responsibilities to hold open meetings and respond to FOIA requests.

“There was some complaining about how much we charge them,” noted Thompson, “but if we do a better job of delivering value, I think that will diminish. It’s certainly nice to have them more as allies than adversaries.”