Hall & Assocs. v. EPA, No. 19-330, 2022 WL 4482569 (D.D.C. Sept. 27, 2022) (Moss, J.)

Hall & Assocs. v. EPA, No. 19-330, 2022 WL 4482569 (D.D.C. Sept. 27, 2022) (Moss, J.)

Re:  Requests for records concerning extent to which EPA follows 2013 Eighth Circuit decision, Iowa League of Cities v. EPA, which relates to EPA’s regulation of wastewater treatment facilities

Disposition:  Granting in part and denying in part plaintiff’s motion for summary judgment; granting in part and denying in part defendant’s cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  Regarding one of plaintiff’s requests, the court holds that “the undisputed evidence in the record demonstrates that the EPA’s search was reasonably calculated to discover the requested documents.”  The court considers plaintiff’s arguments and first finds that “the agency’s failure to locate certain documents is not dispositive, because ‘[t]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.’”  Next, the court finds that “the terms the EPA used were reasonably calculated to uncover [the responsive records].”  “[Plaintiff], tellingly, does not identify what search terms the EPA should have used instead.”  The court notes that defendant used “supplemental search employed terms that were more expansive than [those used initially].”  Next, the court relates that plaintiff argues “that the EPA’s search was defective because [plaintiff] has ‘specifically identified a number of Agency records that are presumptively responsive given the timing of their development and content’ but that were not produced as part of the EPA’s response.”  The court finds that “[t]he EPA has the better of the argument” because the records that plaintiff identifies to support its argument “are not responsive to [plaintiff’s] request.”
  
  Regarding a request for “records that have the effect of an order and (1) classify blending as a bypass and/or (2) indicate that blending may be implemented as an interim measure, as well as (3) records ‘discussing’ the administrative order regarding the Passaic Valley Sewerage Commission,” the court finds that “[plaintiff] fails to identify any defect with the agency’s stated methodology:  it does not point to any different search terms the agency should have employed, nor does it argue that the EPA should have searched any different databases.”  “Rather, [plaintiff] insists that it is ‘impossible’ that the EPA’s search found no enforcement orders.”  “[Plaintiff] further asserts that responsive orders must exist.”  The court finds that “[t]he EPA has the better of [this issue].”  “As with its other adequacy challenges, [plaintiff] does not meaningfully contest the EPA’s search methodology and instead complains about the outcome of the search.”  “Challenges to a search based on disappointing or unexpected results, however, can only provide a basis for denying summary judgment if Hall presents ‘countervailing evidence’ that ‘raises substantial doubt’ as to the adequacy of the agency’s search.”  “[Plaintiff’s] efforts to carry that burden fall short in light of the EPA’s response and the presumption of good faith to which the agency’s declaration is entitled.”
   
• Litigation Considerations, Vaughn Index/Declaration:  The court highlights that “[t]he EPA maintains that [one] redacted paragraph was properly withheld under the deliberative-process, attorney-client, and attorney work-product privileges of FOIA Exemption 5, and submitted a detailed, 3-page Vaughn index entry describing the withheld material and setting forth the applicability of the three privileges.”  “This detailed entry is characteristic of the laudable Vaughn indices, which span 766 pages, which the EPA prepared and produced in this case.”
   
• Exemption 5, Deliberative Process Privilege, Attorney Work-Product Privilege, Attorney-Client Privilege:  Regarding “EPA’s redaction of a single paragraph from [a] November 20, 2013 email,” “the Court will deny [plaintiff’s] motion for summary judgment with respect to this issue and will grant the EPA’s cross-motion for summary judgment.”  The court relates that, “[w]ith respect to the deliberative-process privilege, the Vaughn index explains that ‘[t]he withheld information is “pre-decisional” because that information was generated as EPA considered judicial and administrative Clean Water Act enforcement action . . . .”  “The index further explains that ‘[t]he withheld paragraph is deliberative’ in that it ‘constitutes an exercise of judgment by the author’ who ‘identifies and distills key information from ongoing discussions . . . [concerning an] administrative enforcement action’ and ‘contains the staff attorney’s analysis of how the information affects the administrative enforcement action and recommendations for how to proceed.’”  “The redacted paragraph is also attorney-client privileged, according to the EPA, because it ‘comprises confidential communications between Office of Enforcement and Compliance Assurance attorneys and technical staff that relate to legal issues, strategies and decisions concerning an approach being considered by EPA for its . . . enforcement action[]’” and “[is] confidential.”  “Finally, the EPA contends that the redacted information is also protected by the attorney work-product privilege ‘because it was generated in reasonable anticipation of a civil judicial enforcement action[]’” which “‘was highly likely.’”  The court relates that, in response, “[plaintiff] takes an overly expansive view of the ‘working law’ doctrine, assuming that any statement that describes the agency’s existing policies is working law and thus outside the scope of Exemption 5.”  “This is so, [plaintiff] seems to believe, regardless of where a statement appears and how it is employed.”  “But [the court finds that] the test for whether information constitutes the ‘working law’ of an agency is more discriminating than [plaintiff] suggests.”  “Critically, ‘working law,’ as that term has been applied by the Supreme Court and the D.C. Circuit, generally refers to documents that carry some measure of authoritative weight within the agency, not to isolated sentences or facts included within a larger record that is not intended to convey or to implement settled agency policy.”  “Correctly understood, then, the inquiry into whether a document contains ‘working law’ often focuses as much on the ‘the function and significance of the document in the agency’s decisionmaking process’ as it does on the substance of the document’s statements.”  “[T]he paragraph redacted in this matter involves an attorney's distillation of key facts, legal analysis, and recommendations concerning ‘a specific, nonfinal enforcement action against the Passaic Valley Sewerage Commission’ and thus constitutes predecisional, deliberative, client confidential, attorney work product.”
  
  Separately, the court relates that EPA “withheld material [that] falls into two categories:  (1) briefing records and (2) records related to planning for a proposed rule concerning peak flows management.”  Responding to plaintiff’s challenges, “[f]or the reasons explained above, the Court is unpersuaded that the briefing records and planning documents constitute the working law of the agency.”  “As detailed in [defendant’s] declaration and accompanying Vaughn index, . . . the withheld materials were not used to guide or direct agency action or proceedings – they did not constitute a body of secret law used by the agency to discharge its responsibilities in dealing with regulated parties or the public.”  “The materials, instead, were generated to ‘facilitate[e] consideration and discussion during [a] rulemaking decision-making process’ . . . .”  “But even if the records do not constitute the working law of the agency, [plaintiff] is correct that the deliberative process privilege does not protect ‘purely factual information’ that is segregable and that does not reveal the opinions, analyses, or recommendations of agency staff.”  “So insofar as the withheld material merely sets forth the then-existing EPA policy regarding blending, that material may well fall beyond the scope of the deliberative process privilege.”  “In addition, although the attorney-client privilege protects factual information provided by a client to her attorney (in confidence) for purposes of obtaining legal advice, . . . the EPA’s Vaughn index invokes the attorney-client privilege ‘in part,’ without indicating which ‘parts’ are covered . . . .”  “Although the agency was entitled to withhold the opinions and analyses of staff prepared in the course of agency deliberations, these entries suggest that the records at issue likely contained some factual description of the then-existing (final) regulations and policies.”  “[N]either the EPA’s declarations nor its Vaughn index provide the Court with sufficient information to determine whether . . . eleven [specific] records contain any purely factual material – describing the then-existing EPA policy regarding blending – that is segregable and that can be disclosed without revealing internal, agency deliberations regarding future EPA policy regarding blending.”  “[T]he Court will order the EPA to provide redacted and unredacted versions of the documents to the Court for ex parte, in camera review . . . .”  Regarding other portions of this material, “if only the deliberative-process or attorney-client privileges were at play, the Court might order the EPA to submit the relevant documents for ex parte, in camera review.”  “The Court will decline to do so, however, because these records are also protected by the attorney-work-product privilege.”  “[T]he statements [plaintiff] seeks between the EPA and the attorneys with the Office of the Solicitor General were plainly prepared in anticipation of ongoing litigation before the Supreme Court, and, therefore, they fall within the protection of the work-product privilege.”  Additionally, the court notes that “[plaintiff] raises some reason to doubt the predecisional and deliberative nature of each of [other] documents, and the EPA’s rebuttals are not sufficient to justify granting summary judgment in its favor.”  “As an initial matter, the Court is unable to tell from the agency’s Vaughn index what portion of the email chains that have been withheld occurred before the date of the PVSC administrative order or after it.”  “With respect to . . . two [other] documents, the Court observes that deliberations regarding the content of an internal briefing about a final agency decision and draft summaries of a finalized orders present close calls with respect to the application of the deliberative-process privilege.”  “Given the nature of these documents and the fact that they post-date the . . . Administrative Order, there is a high likelihood that the content contains reasonably segregable factual information or that the release of these documents would not result in foreseeable harm to internal agency deliberative processes.”  “Out of an abundance of caution, therefore, the Court will order the EPA to submit [these documents] to the Court for ex parte, in camera review.”  “The Court will grant summary judgment to the EPA, however, with respect to the remaining two documents that Hall challenges . . . .”  “[A]s the EPA persuasively explains, that document is ‘a weekly report of issues across the EPA with recommended next steps and options being contemplated for future monitoring . . . or upcoming investigations.’”  “Understood in this light, that document is quintessentially deliberative and properly withheld.”  “With respect to [one] Document . . . , [plaintiff] suggests that the document ‘must contain factual information that should have been released earlier.’”  “Upon review of the EPA’s Vaughn index entry, the Court concludes otherwise.”  Finally, “[a]lthough the Court has concluded that for certain documents, in camera inspection would provide further clarity regarding the nature of the withheld information, the Court concludes that the agency’s descriptions are otherwise sufficient to support its Exemption 5 withholdings.”
  
  Separately, the court considers “three categories [of withheld information]: (1) drafts of [an] administrative order on consent, (2) emails discussing or transmitting a draft of the order, and (3) documents that address the order.”  The court notes that “[plaintiff] concedes that it is no longer ‘seeking any drafts or versions of the administrative order as those documents most likely contain some form of protected material.’”  Responding to plaintiff’s arguments concerning the remaining material at issue, “[t]he Court is unpersuaded that these references mean that the documents constitute working law and thus fall entirely outside of Exemption 5.”  “Nevertheless, upon review of the corresponding Vaughn index entries for these documents, the Court is unable to ascertain whether any purely factual statements regarding the agency’s existing policy toward blending and bypass may be present in these communications, and, if so, whether such statements are either (1) reasonably segregable from the surrounding exempt material or (2) inextricably intertwined with exempt material such that they remain covered by Exemption 5.”  “Thus, out of an abundance of caution, the Court will deny both parties’ motions for summary judgment with respect to these records and order the EPA to provide the Court with redacted and unredacted copies of the records for ex parte, in camera review.”
   
• Litigation Considerations, Foreseeable Harm Showing:  The court relates that “[plaintiff] . . . claims that the EPA’s foreseeable harm language is ‘boilerplate’ and ‘the type of language that the D.C. Circuit has previously rejected as inadequate.’”  “The Court . . . disagrees.”  “On the Court’s review, the agency’s Vaughn indices appropriately specify a particular harm that would result from disclosure and link that harm to the specific type of information contained in the withheld material.”  “That amount of justification suffices.”  “To be sure, many Vaughn index entries contain the same language, but that is because many of the withheld documents are similar – which explains why the parties have been able to group them into a small number of categories.”  “Above all else, however, [plaintiff] only makes a generalized attack on the agency’s Vaughn index and does not point to any specific entries that it finds problematic.”  “In the absence of a more directed criticism, the Court declines to order the EPA to supplement its foreseeable harm language.”