United States District Court, District of Columbia
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE
the Center for Biological Diversity, submitted a request to
the U.S. Environmental Protection Agency (“EPA”)
under the Freedom of Information Act, 5 U.S.C. § 552,
seeking records related the agency's revisions to the
aquatic life water quality criteria for the heavy metal
cadmium in 2015 and 2016. Compl. [Dkt. # 1] ¶ 1.
Thereafter, plaintiff filed this lawsuit, arguing, among
other things, that the agency unlawfully withheld certain
records under FOIA Exemption 5, and failed to reasonably
segregate and produce non-exempt information. Id.
¶¶ 48-73. The agency moved for summary judgment,
and plaintiff opposed the motion and filed its own motion for
summary judgment. For the reasons that follow, the Court will
grant EPA's motion for summary judgment and it will deny
Clean Water Act and Cadmium Report
304(a)(1) of the Clean Water Act, 33 U.S.C. §
1314(a)(1), directs the EPA to “develop and publish
water quality criteria that reflect the latest scientific
knowledge” on the effects of pollutants in bodies of
water. Decl. of Kathryn Gallagher [Dkt. # 15-2]
(“Gallagher Decl.”) ¶ 4. EPA publishes the
numeric concentration of pollutants that will protect against
unacceptable adverse ecological effects to aquatic life, as
well as “specific recommendations on the duration and
frequency of any exceedance of those numeric concentrations
that would remain protective.” Id. Under
Section 304(a)(1), the EPA's water quality criteria serve
as non-binding recommendations to states and tribes that are
responsible for adopting standards to protect the bodies of
water under their jurisdiction. Id.
December 1, 2015, EPA announced the release of a draft report
revising the aquatic life water quality criteria for cadmium
“to reflect the latest scientific information, and
current EPA policies and methods.” 80 Fed. Reg. 75097
(Dec. 1, 2015). The notice in the Federal Register marked the
beginning of a public comment period for “scientific
views on the draft.” Id. According to EPA,
cadmium is “a relatively rare, naturally occurring
metal” which is known for its industrial uses in the
“manufacturing of batteries, pigments, plastic
stabilizers, and metal coatings, alloys and
electronics.” Id. at 75098. “Chronic
exposure [to cadmium] leads to adverse effects on growth,
reproduction, immune and endocrine systems, development and
behavior in aquatic organisms.” Id.
submitted a public comment urging the agency to consult with
the U.S. Fish and Wildlife Service (FWS) and National Marine
Fisheries Service (NMFS) prior to taking any action. Ex. A to
Decl. of Brett Hartl [Dkt. # 16-5] at 1-2. EPA reviewed and
responded to public comments, including plaintiff's,
prior to releasing the final report. Gallagher Decl. ¶ 7.
The agency declined to follow plaintiff's recommendation
of coordinating with FWS and NMFS. EPA Response at 17. The
draft report also underwent an internal EPA review and
external peer review process. Gallagher Decl. ¶ 7
April 4, 2016, EPA announced the publication of the final
report titled Aquatic Life Ambient Water Quality Criteria
Cadmium - 2016 (“Final Cadmium Report”). 81 Fed.
Reg. 19176 (Apr. 4, 2016). This marked the culmination of the
agency's internal and external peer review process.
Gallagher Decl. ¶ 7. In the final report, EPA explained
that it revised the cadmium water quality criteria based on
“data that have become available since 2001.”
Final Cadmium Report at xii. The 700-page report, including
references, provides a detailed analysis of the scientific
models applied, the effects of cadmium on specific aquatic
organisms, the national criteria for cadmium, and an appendix
of the unused data with an explanation for why certain data
was excluded. See generally Final Cadmium Report.
April 5, 2016, plaintiff submitted a FOIA request to the EPA
seeking “all records relating to the revised water
quality criteria for cadmium, docket
EPA-HQ-OW-2015-0753.” Gallagher Decl. ¶ 2. On
January 4, 2017, the agency issued its “Final
Release” letter informing plaintiff that it had
identified 654 responsive documents, of which 280 were
withheld in their entirety, 87 were released with redactions,
and 287 were released in full. Attach. I to Gallagher Decl.
[Dkt. # 15-2]. The agency withheld some of the information
pursuant to FOIA Exemption 5. Id.; Gallagher Decl.
filed a timely administrative appeal, and the agency
subsequently released more records and revised some of its
redactions. Decl. of Brett Hartl [Dkt. # 16-4] (“Hartl
Decl.”) ¶ 17; Gallagher Decl. ¶ 11. After
plaintiff filed this suit on June 28, 2017, the agency
released additional records, and on December 18, 2017,
defendant supplied plaintiff with a Vaughn Index of
its withholdings and redactions. Gallagher Decl. ¶ 15.
parties met and conferred, and they agree that there are 67
records that remain in dispute in this matter. Gallagher
Decl. ¶ 19; Pl.'s Statement of Material Facts As To
Which There Is No. Genuine Issue [Dkt. # 16-2]
(“Pl.'s SOF”) ¶ 26. Of the 67 records
that remain in dispute, 34 have been withheld in full and 33
in part pursuant to the deliberative process privilege of
FOIA Exemption 5, 5 U.S.C. § 552(b)(5). See Ex.
C to Gallagher Decl. [Dkt. # 15-2] (“Vaughn
March 16, 2018, defendant moved for summary judgment,
Def.'s Mot. for Summ. J. [Dkt. # 15]; Def.'s Mem. of
P. & A. in Supp. of Mot. for Summ. J. [Dkt. # 15]
(“Def.'s Mem.”), and plaintiff opposed that
motion and cross-moved for summary judgment on April 16,
2018. Pl.'s Cross-Mot. for Summ. J. & Opp. to
Def.'s Mot. [Dkt. # 16] (“Pl.'s
Cross-Mot”). After the motions were fully briefed, the
Court ordered defendant to submit unredacted versions of a
portion of the withheld records for in camera
inspection to assist the Court in making a responsible de
novo determination of the agency's withholdings.
Min. Order (Feb. 12, 2019); Notice of Delivery of Docs. For
In Camera Inspection [Dkt. # 27].
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Most FOIA cases are appropriately
resolved on motions for summary judgment. Brayton v.
Office of the U.S. Trade Representative, 641 F.3d 521,
527 (D.C. Cir. 2011).
prevail in a FOIA action, the agency must establish that the
asserted exemption justifies the redactions and withholdings.
5 U.S.C. § 552(a)(4)(B). To satisfy that burden, the
agency “must provide a relatively detailed
justification, specifically identifying the reasons why a
particular exemption is relevant and correlating those claims
with the particular part of a withheld document to which they
apply.” Mead Data Cent., Inc. v. U.S. Dep't of
the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977).
“To enable the Court to determine whether documents
were properly withheld, ” the agency must submit a
“Vaughn Index and/or accompanying affidavits or
declarations” that specifically explains why certain
documents were redacted or withheld. Defs. of Wildlife v.
U.S. Border Patrol, 623 F.Supp.2d 83, 88 (D.D.C. 2009);
see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.
Cir. 1973); Judicial Watch, Inc. v. FDA, 449 F.3d
141, 145- 46 (D.C. Cir. 2006).
FOIA action, the Court may award summary judgment solely on
the information provided in affidavits or declarations that
describe “the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and
are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith.”
Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981). Such affidavits or declarations are
accorded “a presumption of good faith, which cannot be
rebutted by ‘purely speculative claims about the
existence and discoverability ...