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Hall & Associates v. United States Environmental Protection Agency

United States District Court, D. Columbia.

February 4, 2014


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[Copyrighted Material Omitted]

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For HALL AND ASSOCIATES, Plaintiff: Philip D. Rosenman, HALL & ASSOCIATES, Washington, DC.



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JAMES E. BOASBERG, United States District Judge.


This Freedom of Information Act case has its origins in Environmental Protection Agency policies related to New Hampshire's Great Bay estuary. Plaintiff Hall & Associates, a consulting group that believes EPA has been too stringent, filed eighteen FOIA requests seeking information related to the agency's National Pollutant Discharge Elimination System permit program. EPA produced three responsive records totaling 25 pages but withheld parts of one two-page draft letter pursuant to FOIA Exemption 5; it also assessed Plaintiff $431 in fees. Believing the withholding and fees improper, Plaintiff filed suit, and both parties have now moved for summary judgment.

Plaintiff spills much ink castigating EPA for its policy decisions related to discharge into the estuary. These are, of course, concerns the Court cannot adjudicate in this case; whatever the merits of Plaintiff's substantive claims, they have no bearing on EPA's FOIA obligations. As to the specific arguments that the Court may consider, it finds that EPA's FOIA-related decisions are amply supported by the record. As a result, it will grant Defendant's Motion and deny Plaintiff's.

I. Background

This dispute arose from a series of decisions regarding the ecology of the Great Bay estuary, which is located in the Granite State. In 2005, EPA directed the state's Department of Environmental Services to develop " numeric nutrient criteria" that would govern the water-treatment obligations of the cities surrounding the estuary. From 2006 to 2008, EPA and the Department worked to collect and review data that would inform those criteria. As Plaintiff tells it -- the Court does not endorse these facts but merely presents them, as they have little bearing on the disposition of this FOIA case -- EPA disregarded the evidence it collected and, " [d]espite numerous objections from the regulated community and various [scientists]," promulgated regulations based on certain causes of ecological deterioration that " no valid analysis" could support. See Pl. Mot., Exh. 1 (First FOIA Request) at 3-4. Plaintiff and its clients, it would appear, are unhappy with the rigor of these regulations.

In response to this " scientific fraud," the major cities surrounding Great Bay formed the Great Bay Coalition to review the regulatory and scientific bases for EPA's actions. See Pl. Mot. at 3. Noting numerous " fundamental scientific errors with the document," id. at 4, the Coalition sought to subject the agency's decisions to peer review. EPA agreed but, according to Plaintiff, " refused to allow any community involvement in the peer review" and " [u]ltimately . . . limited the peer review to the skewed record previously developed." Id.

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The community's response was swift. In a letter dated May 4, 2012, the Coalition, through Plaintiff, notified the EPA Administrator and Inspector General that it believed EPA Region 1 -- the office that administers the NPDES program and issues water-related permits in New Hampshire -- had committed " science misconduct" during the development of the Great Bay estuary rules. See Compl., ¶ ¶ 2, 12; First FOIA Request at 12. The Coalition demanded that an independent panel of experts be appointed to take over an impending review of Great Bay water-quality compliance and permitting. It asked, further, that the Inspector General open an investigation into Region 1's actions. See id., ¶ 12; Def. Mot., Exh. 1 (Declaration of Stephen Perkins), ¶ 6; First FOIA Request at 1-2.

In a letter dated September 27, 2012, Nancy Stoner, EPA's Acting Assistant Administrator for the Office of Water responded to the Coalition's allegations. Stoner notified the Coalition that EPA had " initiated a careful review" of the concerns raised in the letter, and she concluded that EPA " ha[d] not seen any evidence that Region I . . . engaged in scientific misconduct." Pl. Mot., Exh. 4 (Letter from Nancy Stoner to Great Bay Coalition) at 1.

Stoner's correspondence did not placate the Coalition. According to Plaintiff, the letter " did not offer any explanation as to why any of the specific factual allegations raised by the Coalition were actually in error," even though " it was these specific factual/scientific statements that were the basis" for the scientific-misconduct allegations. Pl. Mot. at 7; Perkins Decl., ¶ 5. Acting on its dissatisfaction, the Coalition then filed eighteen separate FOIA requests. Following several weeks of correspondence seeking to clarify the scope of those requests, EPA notified Plaintiff that " [d]ocuments transmitted by Region 1 to Headquarters to refute the specific scientific allegations in the FOIA requests were deemed responsive." Perkins Decl., ¶ 11.

In total, EPA located four responsive records totaling 26 pages. See id., ¶ 16. Although the Region claims that all four records contained deliberative material, it nonetheless released three of the four after determining that doing so would cause no harm to EPA programs or the individuals involved. It did, however, redact portions of one draft letter -- namely, a draft response to Plaintiff's accusations of misconduct prepared by a Region 1 lawyer at the request of the central office. EPA indicated that it had redacted parts of the letter to protect the agency's deliberative process, and it invoked FOIA Exemption 5 to support that decision. See id., ¶ ¶ 16, 18.

Since FOIA regulations define Plaintiff as a " commercial requester," see 40 C.F.R. § 2.107(c)(1), EPA assessed the organization $413.90 " for the time spent searching for records, reviewing the records for possible disclosure, and for the cost of each page of duplication." Def. Mot., Exh. 2 (Declaration of Cristeen Schena), ¶ 6. That time included 1.5 hours EPA staff spent searching for relevant documents and 8.5 hours a Region 1 attorney spent reviewing the collected documents to determine whether they were responsive to Plaintiff's FOIA requests, deciding whether relevant exemptions applied, discussing with program staff whether materials deemed deliberative should nonetheless be disclosed, summarizing his findings, and coordinating the Region's response with EPA headquarters. See id., ¶ ¶ 7-8.

After exhausting its administrative remedies, Plaintiff filed this action, arguing that the agency's decision to invoke the protection of Exemption 5 was improper and that the fees charged were unreasonable. The Parties filed cross-motions for

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summary judgment, to which the Court ...

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