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COHEN v. EPA

June 28, 1983

NEIL J. COHEN, Plaintiff,
v.
ENVIRONMENTAL PROTECTION AGENCY, Defendant


WILLIAM B. BRYANT, District Judge


The opinion of the court was delivered by: BRYANT

WILLIAM B. BRYANT, District Judge

 This action is before the court on the parties' cross-motions for summary judgment. The sole issue in this Freedom of Information Act (FOIA) case is whether the names of recipients of Environmental Protection Agency (EPA) notice letters, sent pursuant to § 104 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9603(c), are exempt from disclosure under Exemptions 7(A), 7(C) and 5 of FOIA. For the reasons stated below, the court finds that the information must be disclosed.

 Background

 EPA is responsible for the enforcement of CERCLA, 42 U.S.C. §§ 9601-9657, and its predecessor legislation, the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6987. Congress passed CERCLA in 1980 to augment RCRA and provide EPA with additional tools to combat hazardous waste pollution. CERCLA's Hazardous Substance Response Fund or "Superfund" helps pay for cleanup programs, particularly at abandoned disposal sites. 42 U.S.C. § 9604(a)(1). However, EPA must first establish that remedial action would not be adequately undertaken "by the owner or operator of the vessel or facility from which the release or threat of release emanates, or by any other responsible party." Id.

 Responsible parties are liable for "all costs of removal or remedial action incurred by the United States Government or a State" including "necessary costs of response incurred by any other person" and "damages for injury to, destruction of, or loss of natural resources, including the reasonable cost of assessing such injury." 42 U.S.C. § 9607(a)(4).

 Since Superfund monies are limited, EPA attempts to conserve them for abandoned or "orphaned" hazardous waste disposal sites. Kurent affidavit at 8. *fn1" The EPA attempts to identify responsible parties who, according to the statutory scheme, are directly liable for the costs of cleanup. Section 104 of CERCLA authorizes EPA to gain compliance through voluntary programs. 42 U.S.C. § 9604. Section 106(a) allows EPA the option of filing suit or issuing administrative orders to compel a responsible party to abate hazardous activities. 42 U.S.C. § 9606(a). Wilful violations of EPA orders can result in significant monetary penalties including punitive damages of up to three times the cost of cleanup. 42 U.S.C. §§ 9606(b), 9607(c).

 EPA notice letters state, generally, that the recipient is potentially responsible for the threatened or actual release of hazardous substances into the environment and may be liable for the costs of remedial cleanup. Some of the notice letters specifically describe the necessary corrective measure the EPA believes necessary to achieve compliance. All of the letters invite the recipient to open discussion with the EPA about developing voluntary cleanup programs. Kurent affidavit at 6.

 EPA released the substance of the notice letters to the plaintiff, but claims the identities of the individuals, corporations and other recipients are exempt from disclosure under FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A). In addition, in the case of 33 recipients who are individuals, nondisclosure is permitted under Exemption 7(C), 5 U.S.C. § 552(b)(7)(C). Finally, EPA contends that the list of recipients is entirely exempt from disclosure as an inter-agency memorandum under FOIA Exemption 5, 5 U.S.C. § 552(b)(5).

 Exemption 7(A)

 The underlying congressional objective in enacting FOIA was to facilitate access and "broad disclosure" of government records. FBI v. Abramson, 456 U.S. 615, 621, 72 L. Ed. 2d 376, 102 S. Ct. 2054 (1982); EPA v. Mink, 410 U.S. 73, 80, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973). It is well-settled law that FOIA exemptions are to be narrowly construed. FBI v. Abramson, supra at 630; Department of Air Force v. Rose, 425 U.S. 352, 361, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). Exemption 7 provides for nondisclosure of investigatory records specifically devoted to government enforcement activities. The present language of Exemption 7 is the result of 1978 amendments to FOIA, where Congress reacted to a series of court decisions granting an almost blanket exemption for investigatory documents. See, e.g., National Policy Review v. Weinberger, 163 U.S. App. D.C. 368, 502 F.2d 370 (D.C. Cir. 1974); Rural Housing Alliance v. United States Department of Agriculture, 162 U.S. App. D.C. 122, 498 F.2d 73 (D.C. Cir. 1974). In narrowing the scope of the exemption, Congress placed a significant burden on the government.

 Exemption 7(A) of FOIA exempts from disclosure "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). A two-pronged analysis must be applied to an Exemption 7(A) claim. Pratt v. Webster, 218 U.S. App. D.C. 17, 673 F.2d 408 (D.C. Cir. 1982); Campbell v. HHS, 221 U.S. App. D.C. 1, 682 F.2d 256 (D.C. Cir. 1982). The threshold issue is whether the records are "investigatory" and "compiled for law enforcement purposes." Once this is determined, the court must examine whether release of the records would actually "interfere" with the agency's law enforcement function by resulting in concrete adverse consequences. Campbell v. HHS, supra.

 The documents at issue appear to meet the threshold test. Although they were not developed solely for investigatory purposes, the notice letters are instrumental in the agency's efforts to determine "responsible parties and develop effective cleanup programs." Kurent affidavit at 10. *fn3" The notice letters assist EPA in meeting its dual goals of cleaning up hazardous waste disposal sites and conserving the finite funds provided by Congress. The agency achieves these goals primarily by negotiating settlements with responsible parties after preliminary investigations indicate the recipients of notice letters were involved with hazardous waste disposal. Kurent ...


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