Hall & Assocs. v. United States Envtl. Prot. Agency
| Decision Date | 27 September 2022 |
| Docket Number | Civil Action 19-330 (RDM) |
| Court | U.S. District Court — District of Columbia |
| Parties | HALL & ASSOCIATES, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant. |
This Freedom of Information Act (“FOIA”) case concerns four FOIA requests in which Plaintiff, Hall & Associates (“Hall”), seeks records from Defendant, the Environmental Protection Agency (“EPA”) concerning the extent to which the EPA follows a 2013 Eighth Circuit decision, Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013), outside of the Eighth Circuit. Before the Court are the parties' cross motions for summary judgment. Dkt. 36; Dkt. 38. For the reasons set forth below, the Court will GRANT in part and DENY in part Plaintiff's motion for summary judgment, Dkt. 36, and will GRANT in part and DENY in part Defendant's cross-motion for summary judgment, Dkt. 38.
The FOIA requests in this case concern the EPA's regulation of wastewater treatment facilities. Every day, households and business in the United States send billions of gallons of wastewater to local facilities for cleaning and treatment. See Hall & Assocs. v. EPA, No. 181749, 2021 WL 1226668, at *1 (D.D.C. Mar. 31, 2021). After arriving at a treatment facility, wastewater is cleaned using two methods. First, a primary treatment process removes large and small solids, like plastic or sediment. Id. Next, a secondary treatment process eliminates the microscopic or dissolved waste that remains. Id. At many treatment facilities, primary treatment capacity exceeds secondary treatment capacity, meaning that, during periods of excess precipitation, a facility's secondary treatment processes may become overwhelmed. Id. When that happens, the facility might employ a process called “blending,” wherein excess water is diverted from the secondary treatment process into an auxiliary treatment facility, where the wastewater is treated and then merged back with water processed through the main treatment facility. Id. The blended water is then discharged into circulation for public use. Id.
The Clean Water Act authorizes the EPA to regulate the discharge of water from treatment facilities. See Ctr. for Regul. Reasonableness v. EPA, 849 F.3d 453, 454 (D.C. Cir. 2017); see also 33 U.S.C. § 1311. Pursuant to that authority, the EPA has promulgated a regulation generally prohibiting “bypass”-that is, the “intentional diversion of waste streams from any portion of a treatment facility.” 40 C.F.R. § 122.41(m). A treatment facility may not engage in bypass unless, among other things, it can show that there is “no feasible alternative” to doing so. Id.
In 2013, the Eighth Circuit considered a challenge to a series of letters the EPA had sent to Senator Charles Grassley setting forth its view that certain types of blending constitute a bypass and are therefore subject to a “no feasible alternatives” requirement, even if the blended discharge ultimately satisfies the water-quality requirements applicable to non-blended discharges. See Iowa League of Cities, 711 F.3d at 854, 859-60. The Eighth Circuit held that these letters amounted to a procedurally defective legislative rule and accordingly vacated the rule. Id. at 876. It further held that even apart from that procedural problem, the agency had acted “in excess of statutory authority” to the extent that the rule “impose[d] secondary treatment regulations on flows within facilities,” “rather than at the point of discharge into navigable waters.” Id. at 877-78.
In the wake of the Eighth Circuit's decision, the EPA released a “Desk Statement” on November 19, 2013, announcing that, while Iowa League of Cities was “legally binding within the Eighth Circuit,” outside of that circuit:
EPA will continue to work with States and communities with the goal of finding solutions that protect public health and the environment while recognizing economic constraints and feasibility concerns, consistent with the Agency's existing interpretation of the regulations.
Dkt. 36-2 at 180 (Pl.'s Ex. 18) (emphasis added); see also Hall & Assocs. v. EPA, 956 F.3d 621, 623 (D.C. Cir. 2020) (). Seeking information regarding the EPA's policy response to the Iowa League of Cities decision, Hall has submitted a series of FOIA requests to the agency, including the four requests at issue in this case.
Shortly after the Iowa League of Cities decision, officials from EPA Region VII (which encompasses Iowa, Kansas, Nebraska, and Missouri) asked EPA Headquarters to send personnel to the region's annual 4-State Government Affairs Meeting (“Four States Meeting”) to explain to the gathering of local, state, and federal stakeholders how the EPA would apply the Iowa League of Cities decision moving forward. Dkt. 36-3 at 7 (Pl.'s SMF ¶ 44); Dkt. 36-2 at 145 (Pl.'s Ex. 9). In response, EPA Headquarters sent three officials-Kevin Weiss, Connie Bosma, and Steven Neugeboren-to the Four States Meeting, which was held in Lenexa, Kansas (near Kansas City) on November 13, 2013. Dkt. 36-3 at 7 (Pl.'s SMF ¶ 45); Dkt. 36-2 at 153, 154 (Pl.'s Ex. 11). At that meeting, the EPA Headquarters officials explained that it was “EPA HQ's current contention that the [Eighth Circuit's] ruling will only be binding to the [Eighth Circuit] States,” but they also cautioned that “they don't have everything figured out yet” and “will be reviewing permits on a case-by-case basis.” Dkt. 36-2 at 155 (Pl.'s Ex. 11); see also Dkt. 36-3 at 7-8 (Pl.'s SMF ¶¶ 45-46).
On May 31, 2018, Hall submitted a FOIA request to the EPA seeking (1) “[a]ll records and correspondence concerning the November 2013 4-States Meeting transmitted between EPA HQ and EPA Region 7” that were “created on or after January 1, 2013;” and (2) “[a]ll records at EPA HQ addressing, in any way, EPA HQ personnel attendance at the meeting, including travel authorization records” (“Four States Meeting Request”). Dkt. 1-3 at 27 (Compl. Ex. 4); see Dkt. 36-3 at 17 (Pl.'s SMF ¶ 115). In response, the EPA's eDiscovery Division executed a search of the Microsoft Outlook email accounts of 19 custodians among the EPA Region 7 and Headquarters staff. See Dkt. 38-2 at 2 (Def.'s SOF ¶ 5); Dkt. 38-3 at 4-5 & n.5 (Revised Kloss Decl. ¶ 11) (hereinafter “Kloss Decl.”). The search applied a January 1, 2013 to January 1, 2018 date range and employed the following search terms: ((“4-States” AND “2013”) OR (“Governmental Affairs Meeting” AND “2013”)). Dkt. 38-2 at 2-3 (Def.'s SOF ¶ 5); Dkt. 38-3 at 5 (Kloss Decl. ¶ 11). This search yielded 3,782 potentially responsive records. Id. With respect to the second part of Hall's request, the EPA conducted a non-email search for records, including travel expense reports, relating to Kevin Weiss's, Connie Bosma's, and Steven Neugeboren's travel to the Four States Meeting. Dkt. 38-3 at 5 (Kloss Decl. ¶ 12). After reviewing these materials, the EPA released 18 records in full and 6 records in part, withholding some information pursuant to FOIA Exemption 6. Dkt. 36-3 at 17 (Pl.'s SMF ¶ 116); Dkt. 38-2 at 3 (Def.'s SMF ¶ 7). On December 19, 2018, Hall filed an administrative appeal challenging the adequacy of the search, Dkt. 36-3 at 17 (Pl.'s SMF ¶ 118).
Due to a lapse in appropriations that forced the EPA to close for normal business in early 2019, the EPA was unable to respond to Hall's appeal before the commencement of this suit. Dkt. 38-2 at 4 (Def.'s SOF ¶ 9); Dkt. 38-3 at 6 (Kloss Decl. ¶ 15). After the litigation began, the EPA conducted a supplemental search for records, applying a string search using the terms (“4-State*” OR “four state*” OR “Government* Affair* Meeting” OR “GA Meeting”) AND (“Kansas City” OR “2013”) to the original search date range and custodians. Dkt. 38-2 at 4 (Def.'s SOF ¶ 10); Dkt. 38-3 at 6 (Kloss Decl. ¶ 16). This search yielded 160,000 potentially responsive records, which the EPA was able to reduce to 20,000 after Hall agreed to limit the time frame of the search to the 2013 calendar year. Dkt. 38-2 at 4 (Def.'s SOF ¶ 11); Dkt. 38-3 at 6 (Kloss Decl. ¶ 17). To this batch, the EPA applied the following search string: (“4-State*” OR “four state*” OR “Government* Affair* Meeting” OR “GA Meeting”). Dkt. 38-2 at 4 (Def.'s SOF ¶ 11); Dkt. 38-3 at 7 (Kloss Decl. ¶ 17). After removing duplicates and non-inclusive emails, 150 potentially responsive records remained. Dkt. 38-2 at 4 (Def.'s SOF ¶ 11); Dkt. 38-3 at 7 (Kloss Decl. ¶ 17). From these, the EPA located four additional responsive records, which it released in full to Hall on May 26, 2020. Dkt. 38-2 at 4 (Def.'s SOF ¶ 11); Dkt. 38-3 at 7 (Kloss Decl. ¶ 17).
As part of its supplemental search, the EPA also completed a manual search of the travel system the EPA used in 2013, “GovTrip,” for records relating to Kevin Weiss's, Connie Bosma's, and Steven Neugeboren's travel to the Four States Meeting. Dkt. 38-3 at 7 (Kloss Decl. ¶ 18). This search located 9 pages of responsive travel records, which the EPA produced to Hall on April 10, 2020. Id.
On October 25, 2013, Hall submitted a FOIA request to the EPA seeking records addressing the impact of the Iowa League of Cities decision on permitting and enforcement.
Dkt. 36-3 at 12 (Pl.'s SMF ¶ 83); Dkt. 1-3 at 30 (Compl. Ex. 5); id. at 33 (Compl. Ex. 6) (describing Hall's modifications to the request). In response to that request, the EPA released, among other records, a partially redacted email dated November 20, 2013. Dkt. 36-3 at 12 (Pl's SMF ¶ 84); Dkt. 38-2 at 14 (Def.'s SOF ¶ 39)...
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