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HORSEHEAD INDUS. v. UNITED STATES EPA

March 23, 1998

HORSEHEAD INDUSTRIES, INC. and LAUREN H. KRAVETZ, Plaintiffs,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.



The opinion of the court was delivered by: GREEN

 Plaintiffs, Horsehead Industries, Inc. and its former attorney, Lauren H. Kravetz, (collectively "Horsehead") filed this action to obtain documents from the Environmental Protection Agency ("EPA") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1994). *fn1" In two unpublished opinions, this Court resolved the merits of the disputes over Horsehead's FOIA requests, ordering a portion of the requested records to be disclosed and holding that other documents were exempt from the FOIA disclosure requirements. Horsehead Indus., Inc. v. EPA, No. 94-1299 (Oct. 1, 1996) (hereafter "October 1996 Opinion"); Id. (Jan. 3, 1997) (hereafter "January 1997 Opinion"). What remains to be resolved is Horsehead's request for attorneys' fees. The Court finds that, under the FOIA, Horsehead is eligible to be awarded attorneys' fees, but that, upon consideration of the four principal factors that guide the Court's discretion in awarding fees, Horsehead is not entitled to a fee award. Therefore, Horsehead's request shall be denied.

 BACKGROUND

 In 1981, Horsehead acquired 2,137 acres of land in Palmerton, Pennsylvania, on which it conducted zinc-based manufacturing activities. On a portion of the site, Horsehead later operated a facility called Horsehead Resource Development Co., which recycled a lead-laden dust. Prior to Horsehead's acquisition of the land, primary zinc smelting activities were conducted on the site dating to 1898.

 In 1983, EPA listed the Palmerton Zinc Superfund Site on the National Priority List. 48 Fed. Reg. 40666 (Sept. 8, 1983). While studies were conducted regarding the nature of the contamination at the Palmerton Site, and although EPA may have developed preliminary conclusions that Horsehead was potentially responsible, it was not until 1991 that EPA Region III directed the National Enforcement Investigation Center ("NEIC") to conduct an investigation to determine the source or sources of the contamination and to provide support for possible enforcement action.

 In June 1993, the NEIC completed its draft report and circulated it for peer review. The peer review comments were submitted on June 8, 1993 ("Peer Review memorandum"). And, by way of his memorandum of July 3, 1993, Frederick MacMillan, Remedial Project Manager for Eastern Pennsylvania and the manager for the Palmerton site, provided comments on the draft report ("MacMillan memorandum").

 On July 7, 1993, EPA provided Horsehead with a "Notice of Potential Liability." This notice stated in relevant part: "This letter confirms notification of potential liability, as defined by [CERCLA] that your company, Horsehead Industries, Inc. (HII), including its division Zinc Corporation of America (ZCA), may have incurred with respect to the [Palmerton] Site." Pls. Mem. in Opp'n to Summ. J. Ex. 24 (EPA Region III Letter of July 7, 1993).

 In January 1994, prior to finalization of the NEIC report, EPA Region III issued a press release that disseminated the preliminary results of the source identification study. In this press release, EPA stated that "the study confirms that contamination remaining from historical primary zinc smelting significantly contributes to lead, cadmium and zinc contamination with Palmerton soil and homes." Pls. Summ. J. Mem. Ex. D (EPA Press Release 94-63 (Jan. 27, 1994)). The press release also stated:

 
These results, among others, support EPA's assertion that Horsehead Industries and Paramount Communications, both of which owned the zinc smelting plant at one time, are responsible for major portions of the residential contamination.
 
Final results of the source identification study are due soon and should show remaining major sources of contamination. No other information about source identification is available at this time, though EPA will deliver the report as soon as it is available.

 Id. at 2.

 In February 1994, Horsehead submitted FOIA requests to EPA Region III and to the NEIC seeking all drafts of the NEIC report, all comments on drafts of the report, and all data underlying the preliminary conclusions reported by EPA the previous month. EPA Region III provided one document responsive to Horsehead's request (a draft press release). NEIC stated that the only documents it had that were responsive to the request were exempt from disclosure under FOIA Exemption 7(A), claiming that their release could reasonably be expected to interfere with an enforcement proceeding. Horsehead appealed the denials within EPA, but received no response.

 In June 1994, the final report was released. The preliminary findings reported earlier that year were adopted as final. Also in June 1994, Horsehead filed the instant suit. In its Amended Complaint, Horsehead sought an order directing EPA to produce all documents responsive to its FOIA requests. EPA invoked FOIA Exemption 5, 5 U.S.C. § 552(b)(5), deliberative process, with respect to three documents: (1) the 1993 draft NEIC report; (2) the Peer Review memorandum dated June 8, 1993; and (3) the Mac Millan memorandum dated July 2, 1993. *fn2" After conducting in camera review of these documents, the Court largely sustained EPA's position, requiring disclosure of only a very slightly redacted version of Appendix III attached to the 1993 draft NEIC report. October 1996 Opinion at 20-21.

 The dispute was not fully resolved at that juncture, however, because EPA had failed to show that it had conducted an adequate search for documents at NEIC. EPA was directed to file an affidavit from a person at NEIC with personal knowledge demonstrating that EPA had "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." October 1996 Opinion (quoting Oglesby v. Department of the Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C. Cir. 1990)).

 Horsehead's FOIA requests had been made by its attorney, Kravetz, see Amended Compl. PP 25, 26 & Exs. C & D, and for present purposes, the relevant request is that issued to NEIC seeking

 
5. Any other data or other material in NEIC's possession that were used, reviewed or considered in preparing the Agency's statements in the January 27, 1994, public press release or the February 1994 Palmerton Zinc Superfund Site "Superfund Update," or that form [sic] the basis for the Agency's statements in these documents.

 Amended Compl. Ex. C.

 In response to the Court's Order, EPA ultimately filed two affidavits from Joe H. Lowry ("Lowry"), Senior Scientist at NEIC who, since July 1993, had been the principal person investigating the Palmerton Site. Nov. 5, 1996 Affidavit of Joe H. Lowry, Ph.D. P 2. In the first affidavit, it appears that an EPA FOIA officer described Horsehead's request to Lowry without providing him a copy, and in the process the request was construed too narrowly. See id. PP 6-7. Subsequently, however, Lowry reviewed the request itself, and he continued to believe it did not seek underlying factual data supporting the draft NEIC report. See Dec. 6, 1996 Affidavit of Joe H. Lowry, Ph.D. P 5.

 As a result, while conceding that such underlying factual data would not be exempt under FOIA, EPA's counsel argued to the Court that Horsehead's FOIA request only sought data that was generated in connection with the preparation of the press release or the Superfund Update. Claiming that agency personnel did not use, review or consider any specific documents or data in creating and discussing the press release or the Superfund Update, EPA argued that the documents containing the underlying data were not subject to Horsehead's FOIA request. EPA stated: "To the contrary, these documents were based upon the overall knowledge of the analytical work done to date." EPA Mem. in Response at 4 (emphasis added).

 This Court disagreed:

 
EPA's interpretation of the plaintiff's FOIA request is untenable. By construing the FOIA request narrowly, EPA seeks to avoid disclosing information that it concedes is subject to disclosure under FOIA. . . . Significantly, EPA does not claim that the "overall knowledge" obtained by agency personnel was not derived from the underlying factual data that the agency gathered regarding the Palmerton site, and it is this ...

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