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MEHL v. UNITED STATES EPA

August 26, 1992

LAWRENCE R. MEHL, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.



The opinion of the court was delivered by: STANLEY S. HARRIS

 This is an action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C.A. ยง 552 (1977 & Supp. 1991). Before the Court are plaintiff's motion for partial summary judgment and defendant's motion for summary judgment. After careful consideration of the entire record and an in camera inspection of the documents at issue, the Court denies plaintiff's motion, grants defendant's motion in part, and denies defendant's motion in part.

 Plaintiff seeks documents relating to the Environmental Protection Agency's (EPA) cleanup efforts at the Bunker Hill hazardous waste site in Idaho. *fn1" Plaintiff is the Vice President, General Counsel, and Secretary of Gulf Resources and Chemical Corporation (Gulf), which at one time owned the site. *fn2" On March 9, 1990, plaintiff sent identical FOIA requests to the EPA headquarters and to EPA Region 10, requesting documents mentioned in an EPA report regarding the site. The EPA identified and released a number of responsive documents and withheld portions of five documents. Plaintiff seeks access to the withheld portions of the documents.

 Background

 On February 26, 1990, the Inspector General (IG) of the EPA publicly released a report entitled "Special Review of EPA's Handling of the Bunker Hill Superfund Site" (Report). *fn3" The Report summarizes the IG's investigation into allegations that the EPA's Regional Administrator interfered with the routine enforcement actions of the EPA's Hazardous Waste Division (HWD) regarding the Bunker Hill site. The Report states that the Regional Administrator blocked or delayed enforcement actions against the current owner of the site, Bunker Limited Partnership (BLP), and that the delay had serious consequences on the condition of the site and the likelihood of recovery from BLP.

 The Report refers to a number of documents regarding the Bunker Hill site and the EPA's enforcement strategy there. Specifically, the Report identifies a "background paper," an "option paper," and an "ownership report." In his FOIA request, plaintiff requested those documents and other documents containing information discussed in the Report. The EPA located the three named documents and two additional documents, a "notice letter memo" and an "executive summary" of the option paper. The EPA released copies of the five documents with redactions. It withheld portions of the documents under FOIA exemptions 5 and 7. Plaintiff contends that the EPA waived any applicable exemptions for the five documents through public disclosure in the Report. Plaintiff also challenges the adequacy of the EPA's search in response to his requests.

 Discussion

 I. Search Issues

 Pursuant to the FOIA, the EPA must establish "that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). To meet that standard, the EPA "may rely upon reasonably detailed, nonconclusory affidavits." Weisberg, 745 F.2d at 1485. The affidavits must outline the method utilized in searching for responsive documents and they must reflect a systematic approach to the search. See Oglesby, 920 F.2d at 68.

 The EPA's affidavits do not establish the adequacy of the search conducted by the Region 10 office. The Bakalian affidavits, which address the search of that office's records, do not provide a description of the search. Instead, Bakalian asserts that he has "firsthand knowledge of the Bunker Hill case files" through his four-year involvement with the EPA's cleanup efforts and its responses to other FOIA requests. Bakalian refers to the use of a contractor to search for responsive records, but he does not explain how the contractor conducted the search. Although Bakalian's firsthand knowledge of the Bunker Hill files suggests that he is the appropriate person to supervise a search, it does not establish that the method of the search was reasonably calculated to uncover responsive materials. See Oglesby, 920 F.2d at 68 (comparing affidavits submitted by two agencies). Therefore, the defendant must submit an additional affidavit that describes the method used to search for documents in the Region 10 office's files. *fn5"

 Plaintiff argues that a factual issue exists regarding the adequacy of the EPA's search for the "option paper." The Report states that the option paper initially contained a recommendation in favor of naming certain PRPs for the Bunker Hill site. According to the Report, the Regional Administrator objected to the recommendation and deleted it from the option paper. In responding to plaintiff's request, the EPA released a redacted version of the option paper. That version does not reflect any recommendations. The Bakalian affidavits state that the EPA's search did not locate a version of the option paper that contains a recommendation in favor of naming PRPs. Bakalian's affidavit further states, based on personal knowledge, that the option paper never contained such a recommendation and that the description in the Report was mistaken. *fn6" Plaintiff contends that the discrepancy between the EPA's affidavit and the Report creates a genuine issue of material fact. Therefore, he argues, he is entitled to discovery regarding the adequacy of the EPA's search and the existence of an original version of the option paper.

 In general, the Court may rely on the affidavits submitted by the agency to establish the adequacy of the search. See Perry, 684 F.2d at 126; Goland v. CIA, 607 F.2d 339, 355 (D.C. Cir. 1978), cert. denied, 445 U.S. 927, 63 L. Ed. 2d 759 , 100 S. Ct. 1312 (1980). Because the affidavits contradict the information in the Report, the Court conducted an in camera inspection of the option paper. That inspection confirmed the representations in the agency's affidavits. A recommendation would have been inconsistent with the format of the option paper. The paper describes several potential enforcement strategies without ranking the options and without providing space for a recommendation. Therefore, the Court concludes that the description of the option paper in the Report indeed was mistaken. The Court further finds that the mistake does not create ...


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