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Via Email

Mr. Curt Coccodrilli Executive Committee

Delaware River Basin Commission 25 State Police Drive

PO Box 7360 West Trenton . New Jersey

08628-0360 Phone: (609) 883-9500 Fax: (609) 883-9522

Web Site: hllp://www.drbc.net

July 24, 2013

Northern Wayne Property Owners Alliance Email: curt.coccodrilli@aeoink.com

Re: FOIA Request

Dear Mr. Coccodrilli:

Carol R. Collier Executive Director

Robert Tudor Deputy Execut ive Director

I am writing in response to your request for records dated June 17, 2013. 1 Your letter included nine numbered parts, which are addressed in turn below.

l) The first part of your request asks for copies of FOIA requests by the Delaware Riverkeeper Network ("DRN") dated 10/21/09, 2/19/10, 1/4/11 , and 5/17/11 , along with "DRBC agreements signed with Delaware Riverkeeper Network" relating to these requests.

To the extent that such agreements as you requested exist, we were unable to locate them. We were able to locate the FOIA requests dated 2119110, 114111, and 5/17/l I , which we have attached. We were unable to locate the FOIA request dated 10/21/09. Although not specifically requested to do so, we are also attaching copies of our invoices and DRN' s checks for fees imposed for the records produced in connection with these requests. As these documents show, the Commission has not provided any special consideration to DRN with respect to the Commission's fees for the production of records. DRN is routinely charged for the production of documents in accordance with the fees set forth at Section 2.8.10 A. of the RPP, 18 C.F.R. § 401.11 O(a).

2) The second part of your request concerns the schedule of fees for FOIA requests and the Commission' s policy regarding exceptions to such fees. As noted above, the schedule of fees imposed for the production of Commission records is set forth at Section 2.8.10 A. of the RPP, 18 C.F.R. § 401.1 lO(a).2 As thi s provision states, the fees apply "[u]nless waived in accordance with the provisions of Section 2.8.11." The Commission also has general authority to waive rules under Section 2.9.3 of the RPP, 18 C.F.R. § 401.123.

When the Commission receives requests for one or more discrete documents that are familiar to the staff and that exist in a readily transmittable format, staff occasionally produces these documents at no charge to the requester because the effort required to do so is negligible. By way of example, I attach a scanned copy of a request you submitted via email to Pam V'Combe and Bill Muszynski of the DRBC on January 18, 2012, Ms. V'Combe's response of the same day, and your note of thanks. (I do not

1 As I informed you in a letter dated July 8, 2013, in accordance with Section 2.8.9 B.3 of the Delaware River Basin Commission 's Rules of Practice and Procedure ("RPP"), 18 C.F.R. § 40l. l09(b)(3), the Executive Director extended the time to respond to your June 17 request, which we received and logged on June 25 , 201 3 . 2 A current version of the RPP is available on the DRBC website, at http://www.sta te. n j . us/drbc/1 ibrary/docu men ts/ad min manual .pd f.

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include the attachment.) There is no mention of a fee in this email exchange. If your request of January I 8, 2012 were logged into the FOIA log, it would carry the notation "N/C" for "no charge."

Another category of FOIA requests that may result in no charge relates to in-person file reviews permitted under Section 2.8.8 B of the RPP, 18 C.F.R. § 40 1.108(b ), in which the requesters arrange to view existing paper files. If after reviewing the file 's contents the reviewer desires no photocopies of documents or makes or arranges for his or her own copies, then no cost is incurred, no charge is imposed and the notation "N/C" is made in the log. These types of requests most often involve project review files, which include project applications and related documents associated with reviews performed by the Commission pursuant to Section 3.8 of the Delaware River Basin Compact. These files do not have to be assembled but are maintained for every docketed faci lity in the basin.

As I explained in my letter to you of July 8, the log notation of a charge in the amount of $ 1.60 for 233 photocopies relating to an application by the Village of Deposit that you referenced in your request was the result of a clerical error that occurred when the amount of the invoice was entered into the public log. Our invoice dated July 8, 2011 (a copy of which was provided) demonstrates that the Commission actually imposed a fee of$ I 3 I .82 for the copies.

3) The third part of your request is for "[c]opies of all e-mail correspondence between Carol Collier ... and/or William Muszynski ... and/or Robert Tudor and the following, since 1/1/2007," accompanied by a list of 66 email addresses.3 The New Jersey Office of Treasury Division of Revenue and Enterprise Services (DORES), which provides the Commission with email and calendaring services, has assisted DRBC in identifying responsive documents. Some 950 records were found that meet your search criteria. Additional steps are required before a portion of this material is produced, however. First, the documents contain records that are exempt from disclosure in accordance with Section 2.8.12 of the RPP, 18 C.F.R. § 401.112,4 and other applicable privileges, and before documents can be furnished to you, exempt material must be segregated in accordance with Section 2.8.13 of the RPP, 18 C.F.R. § 401.113 (subject to Section 2.8.2 of the RPP, 18 C.F.R. § 401.102). NWPOA will not be charged for the time required to perform this task or for copies of documents that are not produced. Second, at $0.15 per page, the cost for producing non-exempt records is expected to run between $670 and $910, including a day of clerical time, and excluding any email attachments and postage. As the accompanying invoice indicates, the costs through July 6, 2013 for responding to your June 17 request for records exceed by $269 the $650 payment that you made in June. Accordingly, payment in the amount of $269 plus the additional sum of $750 toward the production of documents (a total of $ 1,019) is required at this time. If the actual cost of responding to your request exceeds this amount, I will so advise you. (Of course, if the actual cost of responding is less than this amount, we will return the difference.) At that point, you may choose to accept a portion of the production commensurate with the amount paid, or remit any additional sum required for the complete response. Provided that the Commission has received payment for all invoiced fees prior thereto, and allowing sufficient time for the Commission to pursue its regulatory

3 We have interpreted your request to include emails between one or more of these three individuals (i.e., Ms. Collier, Mr. Muszynski, and Mr. Tudor) and one or more of the individuals associated with the 66 email addresses that you have provided. Although because of the way in which you drafted your request it is possible to interpret it to include emails between the three individuals themselves, we have not interpreted it in that fashion because we do not believe that such an interpretation was intended. Please let us know if our interpretation is incorrect so we can provide you with a new estimated fee, which is likely to be significantly higher. 4 Among the 66 email addresses you have included is one for Paul Rush, Deputy Commissioner of the New York City Department of Environmental Protection, with whom the Commission exchanged data and information pursuant to either Section 2.8.12, 18 C.F.R. § 401.112 and/or Section 2.8.16 of the RPP, 18 C.F.R. § 401.116.

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Mr. Curt Coccodrilli July 24, 2013 Page 3

activities without di sruption, the non-exempt documents responsive to the third element of your request will be shipped to you or available for you to pick up on or before September 20, 2013.

4) The fourth part of your request is for "[c]opies of any correspondence between Carol Collier, Robert Tudor and/or William Muszynski and others relating to the films Gas/and or Gas/and Part II." Because the third part of your request asks for "all e-mail correspondence" (emphasis added) between three named staff members and 66 others, and because the seventh, eighth and ninth paits of your request distinguish between "e-mail" and "correspondence," we have interpreted the fourth part of your request to include only non-electronic correspondence (i.e., correspondence other than emails). Ms. Collier and Mr. Tudor's secretary searched nan-electronic files responsive to your request and found none. Mr. Muszynski's secretary has not yet completed this search but searched electronic files and did not locate any correspondence from Mr. Muszynski responsive to your request. To the extent Gasland and Gasland Part II are mentioned in any emails responsive to the third element of your request (which specifically seeks only emails), the records will be included in response to that part, in accordance with the above. If you wish to clarify or supplement the fourth part of your June 17 request, you are welcome to do so.

5) The fifth part of your request, for "[c]opies of any correspondence between Carol Collier, Robert Tudor and/or William Muszynski and others relating to NWPOA," resulted in the same uncertainty as the fourth. Ms. Collier and Mr. Tudor's secretary searched non-electronic files responsive to your request and found none. Mr. Muszynski' s secretary has not yet completed this search but searched electronic files and did not locate any correspondence from Mr. Muszynski responsive to your request. To the extent NWPOA is mentioned in any emails responsive to the third element of your request (which specifically seeks only emails), the records will be included in response to that part, in accordance with the above. If you wish to clarify or supplement the fourth part of your June l7 request, you are welcome to do so.

6) The sixth part of your request is for correspondence relating to "the Executive Director determination to impose a moratorium on gas drilling in the basin." The Commission possesses no records responsive to this request because the Executive Director did not make such a determination. As the official Minutes of the Commission's meeting of May 5, 2010 record, the Commission on that date by unanimous vote adopted a Resolution for the Minutes which (a) directed staff to develop draft regulations on well pad projects; (b) postponed the Commission's consideration of well pad dockets until DRBC regulations are adopted; and (c) stated the Commissioners' intention to consider water withdrawal dockets for natural gas development projects under the Commission's existing regulations. For the exact text and context of this resolution, please see the Minutes, which are available on the Commission' s website at http://www.state.nj.us/drbc/library/documents/5-05-lO_minutes.pdf.5

7) The seventh pa1t of your request is for "[c]opies of any correspondence, email, file memorandums, research reports or other materials pertaining to research conducted since September 21 , 2011, in regard to gas drilling regulations." A partial response to this portion of your request, consisting

5 Approximately one year earlier, on May 19, 2009, the Executive Director announced a determination notifying natural gas extraction project sponsors that they may not commence any natural gas extraction project located in shale formations within the drainage area of the basin's Special Protection Waters without first applying for and obtaining the Commission's approval. The complete text of the Executive Director's determination of May 19, 2009 is available on the Commission's website at http://www.state.nj.us/drbc/library/documents/EDD5- l 9-09.pdf. This determination by the Executive Director did not establish a moratorium. Additional documents and nanative relating to the regulation by the Commission of natural gas development activity in the Delaware Basin are available at http://www.state. nj. us/drbc/programs/natural/archi ves.html.

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of a bibliography and a compact disk, is being furnished by U.S. Mail. The items listed in the bibliography and included on the disk are those that were available as of this date in an electronic format saved to a central location by staff. There are many additional materials that are either exempt from disclosure in accordance with Section 2.8.12 of the RPP or other applicable privileges or that have not yet been placed by staff in the central file location. Additional materials in response to this request may follow after all staff have had an opportunity to contribute additional documents.

8) The eighth part of your request is for "copies of any correspondence or email with the New York City Department of Environmental Protection regarding gas drilling regulations." The New York City Department of Environmental Protection submitted written comments and oral testimony on the Commission 's draft natural gas regulations. Both items are available on the Commission's website at http://www.state.nj.us/drbc/programs/natural/draftregs-dec2010 _comments.html. The Commission staff has identified no other documents responsive to this request.

9) The ninth part of your request is for "copies of any correspondence or email with the New York State Attorney General's office regarding gas drilling regulations." The Commission has located one letter responsive to this request. A copy of the Attorney General's letter and attachment are being furnished by U.S. Mail. We have located no other correspondence with the New York State Attorney General's office other than filings in the litigation against the Commission initiated by his office in the Eastern District of New York in June of 2011 and other correspondence among attorneys relating to the litigation that may be responsive to this request. Fi lings in that matter may be obtained from PACER. The case number is l l-CV-2599.

I attach an invoice in the amount of $269.84, reflecting the fees applicable to the Commission's efforts to date in responding to your request of June 17, 2013, minus NWPOA's advance payment of $650. The Commission estimates the additional cost of producing emails responsive to the third part of your request at between $670 and $9 10 and seeks an advance of $750 against this sum at this time. If at some point prior to September 20 I am advised that the actual cost of responding to your records request exceeds NWPOA's payments, I will so advise you. At that point, you may choose to accept a portion of the production commensurate with the amount paid, or remit any additional sum required for the complete response.

Very truly yours,

q::t.:.:::-Commission Secretary and Assistant GeneraJ Counsel

Attachments

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