Chemcentral/Grand Rapids Corp. v. U.S. Environmental Protection Agency

91 C 4380 (N.D. Ill. October 6, 1992)

The court grants the U.S. Environmental Protection Agency's (EPA's) motion for summary judgment that agency documents regarding adoption of state regulations as applicable or relevant and appropriate requirements (ARARs) at specific Superfund sites are exempt from Freedom of Information Act (FOIA) disclosure under the deliberative-process privilege. Plaintiff, a potentially responsible party at a Wyoming, Michigan, site that is listed on the Comprehensive Environmental Response, Compensation, and Liability Act's national priorities list, sued EPA under FOIA for release of records regarding adoption of Michigan's regulations as ARARs at Michigan Superfund sites. FOIA exempts inter- or intraagency documents from disclosure that would not be available by law to a party other than an agency in litigation with the agency. The court holds that this exemption applies to materials safeguarded under the attorney-client privilege, attorney work product doctrine, and the agency deliberative-process privilege. The deliberative-process privilege protects "predecisional" and "deliberative" documents reflecting advisory opinions, recommendations, and deliberations. The court holds that documents discussing adoption of ARARs at specific sites are predecisional because selection of ARARs depends on site-specific variables. The deliberative-process privilege protects communications between federal agencies and outside consultants whose opinions are part of the agency's own deliberative process. The court also rules that the work product doctrine and attorney-client privilege protect certain documents from disclosure.

Counsel for Plaintiff
Louis Rundio
McDermott, Will & Emery
227 W. Monroe St., Chicago IL 60606
(312) 372-2000

Counsel for Defendants
Jonathan Hale, Ass't U.S. Attorney
U.S. Attorney's Office
219 S. Dearborn St., Rm. 122-N, Chicago IL 60604
(312) 353-5300

[23 ELR 20797]

Williams, J.:

Memorandum Opinion and Order

Plaintiff Chemcentral/Grand Rapids Corporation ("Chemcentral") brought this law suit pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 ("Section 552"), to compel defendant United States Environmental Protection Agency ("EPA") to disclose various records regarding certain Michigan Superfund sites. When defendant failed to respond to plaintiff's request within the time limitations established under Section 552(a)(6), plaintiff brought the instant law suit.

This case is currently before the court on the parties' cross motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 ("Rule 56"). Plaintiff seeks the disclosure of 44 documents which EPA claims are privileged. Upon this court's request, Magistrate Judge Weisberg issued a report on August 19, 1992, recommending that plaintiff's motion be denied and defendant's motion be granted. For the reasons stated below, this court adopts the Magistrate Judge's report and recommendation. Plaintiff's motion for summary judgment is denied and defendant's motion for summary judgment is granted.

Background

The facts of this case were fully explained in the Magistrate Judge's report and recommendation, so this court will only provide a brief explanation of the facts. Plaintiff's Grand Rapids facility in Wyoming, Michigan has been listed on the Comprehensive Environmental Response, Compensation, and Liability Act's ("CERCLA")¹ national priorities list ("NPL") for remedial action. In 1986, plaintiff was notified that it was a potentially responsible party ("PRP") with respect to the site. In June 1987, plaintiff and defendant entered into an Administrative Order on Consent that required plaintiff to conduct a Remedial Investigation and Feasibility Study ("RI/FS") of the site.

The Michigan Department of Natural Resources ("MDNR") identified Michigan Act 307 Rules, R. 299.5101 et seq. ("Act 307"), as a potential "applicable or relevant and appropriate requirement" ("ARAR") for all sites in Michigan. At a meeting held on July 26, 1990, defendant decided to implement Act 307 as an ARAR at CERCLA sites in Michigan. According to defendant, no determinations [23 ELR 20798] regarding whether Act 307 should be applied to specific Michigan sites, including plaintiff's site, were made at this meeting.

On June 11, 1991, plaintiff requested that defendant turn over all documents relating to its determination that Act 307 constituted an ARAR for remedial actions performed pursuant to CERCLA for sites located in Michigan. Plaintiff also sought all consent decrees, decisions, and orders in which Act 307 had been applied or considered as an ARAR or other "to be considereds" ("TBCs"). On June 21, 1991, plaintiff made a second FOIA request for all documents relating to defendant's consideration of whether a May 3, 1984 Michigan judgment order in a suit against plaintiff was an ARAR or TBC for remedial actions to be performed at plaintiff's Grand Rapids facility.

In a letter dated July 11, 1991, defendant erroneously stated that it did not have the documents plaintiff requested. On July 29, 1991, and August 13, 1991, defendant provided plaintiff with partial responses. On August 22, 1991, defendant provided plaintiff with four more documents and issued a formal denial that it possessed 7 of the requested documents. On September 4, 1991, defendant issued another formal denial that it possessed 63 of the requested documents. On August 15, 1991, defendant issued a denial regarding the judgment order request. It provided plaintiff with a copy of 1 requested document and told plaintiff that 6 more documents were withheld because they were privileged.

Plaintiff did not appeal defendant's denials within the agency. Since defendant failed to respond to plaintiff's requests within the time period established under Section 552(a)(6), plaintiff instead filed the instant law suit to compel production of the requested documents.

The Cross Motion for Summary Judgment

A motion for summary judgment should be granted when the pleadings and discovery "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56. After the moving party makes a properly supported motion for summary judgment, the nonmoving party bears the burden of refuting the motion by setting forth specific facts showing the existence of a genuine issue of fact for trial. Shlay v. Montgomery, 802 F.2d 918, 920 (7th Cir. 1986). When assessing a motion for summary judgment, the court must view all evidence in the light most favorable to the nonmoving party and draw all inferences in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Renovitch v. Kaufman, 905 F.2d 1040, 1044 (7th Cir. 1990).²

As explained by Magistrate Judge Weisberg, plaintiff seeks to compel disclosure of approximately 44 documents pursuant to FOIA.³ "[FOIA] seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands." EPA v. Mink, 410 U.S. 73, 80 [3 ELR 20057] (1972). Under FOIA, the agency must comply with requests for documents which are submitted in accordance with the agency's published procedures and reasonably describe the items held by the agency. See 5 U.S.C. § 552(a)(3). Virtually every document generated by an agency must be made available in some form, unless it falls within one of FOIA's 9 exemptions. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975). The agency bears the burden of persuasion that documents should not be made available to the public, see 5 U.S.C. § 552(a)(4)(B), and the exemptions are to be narrowly construed to further the broad disclosure policy of the statute. In the Matter of Ulyssus George Wade, slip op. at 7 (7th Cir. 1992).

In the instant case, defendant claims that the requested documents are exempt from distribution to the public pursuant to Section 552(b)(5) and its corresponding regulation, 40 C.F.R. § 2.118(a)(5) ("Exemption 5"). This exemption protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." As the Magistrate Judge properly noted, this exemption has been construed as safeguarding materials protected under the attorney-client privilege, the attorney work-product doctrine, and the executive or agency deliberative process privilege. Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 977 n.35 (7th Cir. 1981) (citations omitted).

Magistrate Judge Weisberg found that documents 1-7, 9, 16-18, 25, 27-28, 37-39, and 41 were protected by the deliberative process privilege. The deliberative process privilege protects agency documents "reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated. NLRB, 421 U.S. at 150 (citing Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966). It is intended, among other things, to: (1) assure that subordinates within an agency feel free to provide decisionmakers with uninhibited opinions and recommendations without fear of subsequent public ridicule or criticism, (2) protect against premature disclosure of proposed policies before they have been finally formulated or adopted, and (3) protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for an agency's actions. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (7th Cir. 1980). To qualify for protection under the deliberative process privilege, a document must be "predecisional" and "deliberative." In other words, it must have been generated before and reflect the give-and-take of the consultative process which occurs prior to the adoption of an agency policy. Id.

Several of the disputed documents relate to defendant's discussions regarding the application of Act 307 as an ARAR at individual Michigan sites. Plaintiff argues that the decision to treat Act 307 as an ARAR was made at the July 26, 1990 meeting. Therefore, according to plaintiff, subsequent discussions regarding the application of Act 307 should not be considered dialogue regarding the creation of a new agency policy. Rather, such discussions should be considered dialogue regarding the implementation of a previously established agency policy.

However, this court agrees with Magistrate Judge Weisberg that documents regarding the application of Act 307 to specific CERCLA sites are protected by the deliberative process privilege. As the Magistrate Judge properly noted, CERCLA provides that state standards must be met if they are "legally applicable to the hazardous substance or pollutant or contaminant concerned or [are] relevant and appropriate under the circumstances of the release or threatened release of such hazardous substance or pollutant or contaminant." 42 U.S.C. § 9621(d)(2)(A) (emphasis added); see also 40 C.F.R. § 300.430(b)(9). This language clearly indicates that Act 307 requires a site specific determination of cleanup standards.

Moreover, determining the applicability of Act 307 on a site-by-site basis ensures that site-specific variables are taken into account. As defendant suggests, site-specific variables which might affect the determination of whether to apply Act 307 to a specific site include: (1) the types of contaminants found at the site, (2) the possible exposure pathways of nearby human populations and the environment to site contaminants, and (3) the proposed remedial actions to clean up site contamination. Defendant's July 26, 1990 decision that Act 307 could be treated as an ARAR for Michigan sites was not based upon such site-specific factors. This court agrees with the Magistrate Judge that the July 26, 1990 decision merely signaled defendant's general belief that Act 307 was a possible ARAR for Michigan cleanup sites. Therefore, as Magistrate Judge Weisberg concluded, documents discussing the adoption of Act 307 as an ARAR to particular sites, including plaintiff's site, can properly be considered predecisional and subject to the deliberative process privilege.⁴

[23 ELR 20799]

The remainder of the disputed documents consist of communications between defendant and MDNR. Contrary to plaintiff's suggestion, Magistrate Judge Weisberg concluded that these documents were privileged because Exemption 5 protects communications between federal agencies and outside consultants or other persons whose opinions or recommendations are part of the agency's own deliberative process. See Dow Jones & Co., Inc. v. Dept. of Justice, 917 F.2d 571, 574-75 (D.C. Cir. 1990); Formaldehyde Institute v. Dept. of Health & Human Services, 889 F.2d 1118, 1121-23 (D.C. Cir. 1989). Since plaintiff does not object to and this court agrees with this determination, the court adopts the Magistrate Judge's finding that these documents are privileged.

Magistrate Judge Weisberg also found that documents 8-16, 18-36, and 40-44 are protected by the work product doctrine. The work product doctrine, embodied in Federal Rule of Civil Procedure 26(b)(3) provides:

[A] party may obtain discovery of documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials . . . the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

As the Magistrate Judge properly noted, the mere fact that litigation eventually ensues does not necessarily mean that related materials prepared by an attorney are protected by the work product doctrine. While litigation need not be imminent, the primary motivating purpose behind the creation of a document or investigative report must be to aid in possible future litigation. Binks Manufacturing Co. v. National Presto Industries, Inc., 709 F.2d 1109, 1119 (7th Cir. 1983) (citing Janicker v. George Washington University, 94 F.R.D. 648, 650 (D.D.C. 1982). A party seeking to assert the work product doctrine has the burden of proving that "at the very least, some articulable claim, likely to lead to litigation, [has] arisen." Coastal States Gas Corp., 617 F.2d at 865.

In the instant case, Magistrate Judge Weisberg found that the noted documents were protected by the work product doctrine because they were created in anticipation of litigation. He determined that if an agency was not just collecting background information, but had focused its attention on specific entities it believed may have violated the statute it was charge with enforcing, then the agency was contemplating litigation. According to the Magistrate Judge, the fact that the agency later declined to prosecute or the target settled before a suit had been filed does not affect the efficacy of the privilege. See Safecard Services, Inc., v. S.E.C., 926 F.2d 1197, 1202 (7th Cir. 1991); Coastal States Gas Corp., 617 F.2d at 865.

Applying this analysis to the instant case, Magistrate Judge Weisberg agreed with defendant that when defendant develops a remediation plan for a specific site and seeks legal advice in connection with it, materials prepared in connection with the giving of that legal advice are generated in anticipation of litigation. The disputed documents relate to four Michigan cleanup sites. As the Magistrate Judge explained in hisreport, defendant was already establishing remedial action, identifying potential PRP's, and negotiating with these PRPs with respect to each site. Since defendant would seek to compel the PRPs to fund the remedial actions through a law suit should such negotiations fail, Magistrate Judge Weisberg determined that the documents were generated in anticipation of litigation.

Plaintiff objects to this determination because it claims the disputed documents were created as part of the statutorily mandated process of establishing remedial plans for hazardous sites without regard to specific wrongdoing. According to plaintiff, such remedy selections do not constitute investigations of particular entities with an eye toward litigation as the Magistrate Judge suggests. This court is not persuaded that the documents were not generated in anticipation of litigation. Contrary to plaintiff's suggestion, the documents do not appear to have been generated without regard to the specific wrong-doing of identified PRPs. Nor do they merely provide general guidance for defendant's actions. Rather, the documents appear to discuss issues specific to the remedial plans prepared for and the PRPs identified with respect to each of the Michigan sites. Since this court agrees that the noted documents are protected by the work product doctrine, this court adopts the Magistrate Judge's determination that the documents are privileged.

Finally, Magistrate Judge Weisberg found that documents 10-11, 19-21, 24, 31, and 35 were protected under the attorney-client privilege. The attorney-client privilege is intended to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." United States v. Zolin, 491 U.S. 554, 562 (1989) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Generally, the privilege can be invoked:

(1) Where legal advice of any kind is sought[,] (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence[,] (5) by the client, (6) are at his instance permanently protected[,] (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.

United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983) (citing 8 Wigmore § 2292). The burden falls on the party seeking to invoke the privilege to establish all the essential elements. United States v. White, 950 F.2d 426, 430 (7th Cir. 1991).

Plaintiff objects to the Magistrate Judge's determination that the disputed documents were privileged because it claims that defendant has failed to adequately demonstrate that these documents remained confidential. According to plaintiff, the maintenance of confidentiality is an essential element of the attorney-client privilege. However, in this case, plaintiff argues that defendant has failed to "'demonstrate that the documents were circulated' no further than among those members 'of the organization authorized to speak or act for the organization in relation to the subject matter of the communication.'" Commonwealth of PA. Dept. Public Welfare v. United States Dept. of Health & Human Services, 623 F. Supp. 301, 305 (M.D. Pa. 1985) (quoting Coastal States Gas Corp., 617 F.2d at 863. Indeed, plaintiff contends that defendant's Vaughn Declaration demonstrates that anyone in the office of Regional Counsel and the Office of Superfund had access to the pertinent documents. See Vaughn Affidavit of Sherry Estes at PP70, 78. Therefore, plaintiff contends that, contrary to the Magistrate Judge's determination, defendant has failed to meet its burden of establishing the applicability of the attorney-client privilege.

However, as defendant suggests, it has provided sufficient evidence of confidentiality to sustain the Magistrate Judge's finding that the attorney-client privilege was applicable. For example, in his declaration, Rodger Field, Section Chief of Section I of the Solid Waste and Emergency Response Branch, Office of Regional Counsel, Region V, EPA, explained:

As a section Chief and as a former Acting Branch Chief, I am also familiar with the general treatment of documents seeking and transmitting advice from the Office of Regional Counsel. It is the preferred practice in our office for attorneys to specify, on the face of the document, that documents containing attorney advice are "Enforcement Confidential," or "Attorney Work Product," or some similar phraseology to indicate the confidential nature of the communications.

Defendant[s'] Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendants' Cross-Motion for Summary Judgment, Exhibit 1 at 2, P5. Contrary to plaintiff's suggestion, such statements clearly indicate that the confidentiality of the disputed documents was maintained and therefore, the attorney-client privilege is still applicable to them.

In addition, this court is not convinced that the Vaughn Affidavit [23 ELR 20800] of Sherry Estes suggests that anyone in the Office of Regional Counsel and the Office of Superfund had access to the pertinent documents as plaintiff suggests. In this affidavit, Estes states:

These documents have not been distributed to any but those employees with a need to review the legal advice contained therein, generally persons in [the Office of Regional Counsel] and the office of Superfund, WMD.

See Vaughn Affidavit of Sherry Estes at PP70, 78. Contrary to plaintiff's assertion, Estes' statement that those who reviewed the documents were generally from the Office of Regional Counsel does not indicate that no efforts were made to protect the confidentiality of the documents from other Office of Regional Counsel employees who did not need to review the documents. Indeed, Estes specifically stated that the documents were only distributed to those employees who needed to review the legal advice contained therein. Thus, Estes' statement actually lends support to defendant's claim that it maintained the confidentiality of the aforementioned documents.

Therefore, this court adopts Magistrate Judge Weisberg's report and recommendation, and finds that the disputed documents were not required to be released to plaintiff because they are protected by Exemption 5. Plaintiff's motion for summary judgment is denied and defendant's motion for summary judgment is granted.

Conclusion

For the reasons stated above, this court adopts Magistrate Judge Weisberg's report and recommendation. Plaintiff's motion for summary judgment is denied and defendant's motion for summary judgment is granted.

1. CERCLA, also known as "Superfund" was enacted in 1980 to ensure prompt and efficient cleanup of hazardous substance sites and to place the costs of those cleanups on those parties responsible for them. See 42 U.S.C. § 9600 et seq.

2. This court notes that it must review de novo the parties' arguments for summary judgment addressed in Magistrate Judge Weisberg's report and recommendations to which plaintiff has raised objections. 28 U.S.C. § 636(b)(1)(B) ("Section 636(b)(1)(B)"); Delgado v. Bowen, 782 F.2d 79, 81-82 (7th Cir. 1986). As explained in Section 636(b)(1)(B):

A Judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

3. See 5 U.S.C. § 552(a)(3); 40 C.F.R. § 2.100 et seq.

4. Having determined that the noted documents are not post-decisional, this court finds that defendant's July 26, 1990 decision did not constitute a "working law" as plaintiff suggests. This court agrees with plaintiff that a working law is a policy which affects the rights or liabilities of private individuals. Moreover, the public has a strong interest in knowing an agency's reasons for implementing a working law. See NLRB, 421 U.S. at 151-52. However, as explained above, the noted documents relate to predecisional matters in which the public only has a marginal interest and no right under FOIA to obtain. See id. at 150-51. Therefore, the Magistrate Judge properly concluded that they were privileged.

In addition, this court notes that the fact that Act 307 has subsequently been applied as an ARAR to all Michigan CERCLA sites addressed since July 26, 1990 does not necessarily mean that discussions following the July 26 decision did not relate to the creation of a new agency policy or only related to the implementations of the policy established on July 26. Therefore, contrary to plaintiff's contention, this fact has no bearing upon this court's determination.