Citing ‘Active Investigation’ exemption, DOE denies public records request

By Rone Tempest

— April 30, 2013

Citing a disclosure exemption that protects active law enforcement investigations, a Department of Energy laboratory has denied a WyoFile Freedom of Information Act request for more details on the suspended $9.9 million Two Elk federal stimulus research project in Wyoming’s Powder River Basin.

WyoFile editor in chief Dustin Bleizeffer said his non-profit Wyoming news site plans to appeal the case to the next level of the DOE.

“It is not our intention to interfere with any federal investigation,” said Bleizeffer. “We feel everything we requested is public record since it involves public monies that fall under the transparency requirements of the American Recovery and Reinvestment Act of 2009. None of the records we requested were specifically compiled for law enforcement purposes.”

In his April 23 denial letter, R. Paul Detwiler, chief counsel of the National Energy Technology Laboratory, Morgantown, West Virginia, said exemption 7 (a) of the federal Freedom of Information Act “provides for the withholding of a law enforcement record that, if disclosed, would reasonably be expected to interfere with enforcement proceedings. This exemption protects an active investigation due to interference from premature disclosure.”

However, not all records used or even compiled for law enforcement purposes are exempt from release under the Freedom of Information Act. Detwiler did not explain how the records sought by WyoFile — a simple request for the current status of the Two Elk stimulus project, and for invoices for payment from public funds filed by North American Power and its subsidiary North American Land & Livestock Company — were part of any law enforcement action.

WyoFile made its Freedom of Information Act request in an April 1 email as part of its ongoing coverage of the Two Elk development and its promoter, North American Power Group Ltd., Greenwood Village, Colorado. North American Power Group is also the developer of the long-delayed $1 billion Two Elk coal-fired power plant on the same site as the stimulus project south of Gillette.

In an April 16 story, WyoFile reported that the Two Elk stimulus project grants were suspended by DOE officials in January 2012, subsequently audited by the DOE Inspector General and sent to the US Attorney’s office in Pittsburgh, Pa., for review. The case is currently in the hands of Pittsburgh-based assistant U.S. attorney Paul Skirtich, a specialist in prosecutions under the federal False Claims Act.

A 2008 Wyofile story detailed how North American Power Group and its chief executive Michael J. Ruffatto convinced two successive Wyoming governors, Jim Geringer and Dave Freudenthal, that the proposed Two Elk project was a “solid waste disposal and recycling facility.” This creative definition of a coal-fired power plant allowed North American Power to qualify for $445 million in federal tax exempt bonds under an exception in the U.S. Tax Code normally reserved for public landfills and sewage treatment plants. The tax-exempt status was subsequently revoked by the IRS after an audit showed that little progress had been made on construction of the plant more than a dozen years after it was first proposed.

A 2011 story based on material obtained by WyoFile in an earlier Freedom of Information request showed that Ruffatto had used a pair federal stimulus grants to pay himself and his Wyoming representative Brad Enzi, the son of Wyoming’s senior U.S. senator Mike Enzi, more than $1 million in salaries and benefits over a 23-month period.

Ruffatto, 67, charged the government $214.38 an hour for his work, totaling more than $500,000 a year. Enzi, 37, a communications graduate of the University of Wyoming, was paid $80 an hour for his work on the carbon sequestration research science grant. In one month alone, Enzi was paid $17,363.72 from stimulus monies.

— Rone Tempest is a former national and foreign correspondent for the Los Angeles Times. From 2008-2010 he was WyoFile’s editor. He lives in Lander.

National Energy Technology Laboratory’s letter to Rone Tempest

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