Hunton & Williams LLP v. U.S. Envtl. Prot. Agency, Civil Action No.: 15-1203 (RC)
| Decision Date | 31 March 2017 |
| Docket Number | Civil Action No.: 15-1208 (RC),Civil Action No.: 15-1203 (RC),Civil Action No.: 15-1207 (RC) |
| Parties | HUNTON & WILLIAMS LLP, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant. HUNTON & WILLIAMS LLP, Plaintiff, v. U.S. ARMY CORPS OF ENGINEERS, Defendant. HUNTON & WILLIAMS LLP, Plaintiff, v. U.S. DEPARTMENT OF THE ARMY, Defendant. |
| Court | U.S. District Court — District of Columbia |
Re Document Nos.: 36, 40, 46, 50, 52, 56
Plaintiff Hunton & Williams LLP (Hunton) filed this action seeking documents under the Freedom of Information Act (FOIA). Hunton requested records from three agencies—the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (Corps), and the U.S. Department of the Army (Army)—regarding the government's Clean Water Act (CWA) and Rivers and Harbors Act (RHA) jurisdiction over an industrial site in Redwood City, California. The developer of the site had requested an Approved Jurisdictional Determination (AJD) in 2012, in order to definitively establish the government's position on CWA and RHA jurisdiction. The Corps and the EPA share responsibility for issuing such AJDs.
In this case, after the Corps prepared a draft AJD addressing both CWA and RHA jurisdiction, the Army intervened to perform a "legal and policy review" in its role as the Corps' parent agency. After that legal and policy review was complete and the Corps had briefly returned to work on the AJD, the EPA stepped in and used its authority to take over the CWA portion of the AJD. As of August of 2016, the EPA had still not issued the CWA portion of the AJD.
Hunton, a law firm, submitted multiple FOIA requests for records from the EPA, the Corps, and the Army. Dissatisfied with the agencies' responses, Hunton filed this suit. Nowpending before the Court are motions for summary judgment by the EPA, the Army, and the Corps, as well as Hunton's motion for partial summary judgment concerning the Corps, Hunton's motion for partial summary judgment concerning the Amy, and Hunton's motion for an order governing further proceedings against the EPA.1
As explained below, because it concludes that the agencies have not adequately justified their application of FOIA exemptions to withhold documents, the Court will entertain supplementalbriefing and review selected documents in camera. However, the Court concludes that the agencies' searches were adequate. The motions are thus granted in part and denied in part.2
Hunton filed FOIA requests seeking information relating to the AJD for an industrial site in Redwood City, California.3 Compl. ¶ 5, ECF No. 1.4 The site, located near the San Francisco harbor, serves as an active saltworks and contains pools of water and salty brine. Compl. ¶ 6. The agencies refer to the site by a variety of names, including the Salt Plant, Saltworks, Redwood City, and Cargill. Compl. ¶ 5. The developers of the site sought an AJD to determine if the site was covered by the Clean Water Act (CWA)—a highly technical issue turning on whether the site contains "waters of the United States." Compl. ¶¶ 6, 9. An AJD would establish the government's position on the jurisdiction of both the CWA and the Rivers and Harbors Act (RHA). Compl. ¶ 9. The AJD at issue was requested on May 29, 2012, Compl. ¶ 9, and remained pending until at least August of 2016, EPA Reply at 18, ECF No. 57—a total time of more than 1500 days.
Three agencies—the Corps, the EPA, and the Army—played a role in this lengthy process. Typically, the EPA and the Corps share responsibility for issuing AJDs. Compl. ¶ 9. For the AJD at issue, the Corps informed the developers that it would take the lead with the EPA providing the Corps with "technical support." Compl., Ex. A, ECF No. 1-1. The Corps beganwork, and in May of 2014 was apparently "on the verge" of issuing an AJD determining both RHA and CWA jurisdiction. Compl. ¶¶ 15-16.
But the AJD did not issue in May of 2014. Instead, the Assistant Secretary of the Army for Civil Works (ASA(CW)) used her "oversight responsibility" over the Corps to conduct a "legal and policy review" of the AJD process, with the effect of delaying the AJD's issuance. Decl. of Paul DeAgostino (DeAgostino Decl.) ¶ 21, ECF No. 36-2; Compl. ¶¶ 21, 24. According to the ASA(CW), this review "only considered the procedural aspects of the determination and did not in any way consider the substantive question of whether the property in question is in fact jurisdictional." Darcy Mem. for the Chief of Engineers at 1, Ex. 1, ECF No. 46-1. The Army completed its "legal and policy review" in November of 2014 and the Corps once again returned to the AJD process. Compl. ¶ 24. In November of 2014, the Corps sent the EPA a "draft AJD" covering both RHA and CWA jurisdiction with the stated intent of issuing it in December of 2014. Pl.'s MSJ Against Corps, Ex. C, ECF No. 56-3. However, another delay arose. On March 18, 2015 the Corps informed the EPA that the Corps had "arrived at a decision" to "finalize and sign [the AJD] tomorrow." Pl.'s Reply Army, Ex. E, ECF No. 54-5.
On the eve of this planned issuance, the EPA used its authority to take over the CWA portion of the AJD. Brush Decl., Ex. E at 16, ECF No. 40-3; see also Mem. Agreement, Ex. 2, ECF No. 57-1. The Corps retained the authority to determine RHA jurisdiction, and issued an AJD with respect to the RHA on March 19, 2015. Compl. ¶ 27. The special case authority is typically used when "significant issues or technical difficulties are anticipated or exist, concerning the determination of the geographic jurisdictional scope of waters of the United States." Mem. Agreement. A few months later, in June of 2015, theagencies published a new rule altering the definition of "waters of the United States" in the CWA. See generally 33 C.F.R. § 328 (2015).
As of the briefing of these motions, the CWA portion of the Redwood City AJD had still not been issued by the EPA. EPA Reply at 18, ECF No. 57. Seeking insight into the EPA and the Corps' decisionmaking with respect to the Redwood City site, Hunton submitted multiple FOIA requests to the EPA, the Corps, and the Army. Nine of those requests are at issue here.
Four of Hunton's FOIA requests to the EPA are at issue in this suit. First, on May 30, 2014, Hunton submitted FOIA requests to the EPA seeking5:
Compl., Ex. E, ECF No. 1-5.
Next, Hunton sought the same records as in its initial request, but twice expanded the applicable date range to cover any documents created since the previous FOIA requests: on August 19, 2014, Hunton requested documents "since May 30, 2014,"6 Compl., Ex. H, ECF No. 1-8; and, on March 19, 2015, Hunton requested documents "since August 19, 2014."7
On March 23, 2015, Hunton submitted a fourth request to the EPA seeking:8
the Corps' "final" CWA JD (with attachments) and/or "final" combined RHA and CWA JD (with attachments) for Redwood City Saltworks. By "final," we mean the version of the document that was prepared for signature by Major General Peabody (whether or not the document was ever actually signed), and sent to the EPA.
Compl., Ex. N, ECF No. 1-14 (footnotes omitted). Hunton appealed each of the four requests administratively. Brush Decl. ¶ 29, ECF No. 40-2. The exhaustion of administrative remedies is not at issue here.9
Between June 2014 and June 2015, the EPA produced documents relating to Hunton's first three FOIA requests. Compl. ¶¶ 30, 48. To do so, EPA searched specific employee'saccounts in its email system using various search terms. Brush Decl. ¶ 16. "[C]ustodians" at EPA Region 9 and the EPA headquarters were also instructed "to search for and collect other responsive files that would not be contained in the email system" in response to these three requests. Brush Decl. ¶ 17. The EPA produced about 600 documents in full, withheld 12 documents in full, and withheld 320 documents in part. Brush Decl. ¶ 31. Of the withheld information, the information in 314 documents was withheld on the basis of the deliberative process privilege, the information in 23...
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