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Community Ass'n for Restoration of Env't, Inc. v. United States Environmental Protection Agency

United States District Court, E.D. Washington

August 6, 2014

COMMUNITY ASSOCIATION FOR RESTORATION OF THE ENVIRONMENT, INC., a Washington non-profit corporation, Plaintiff,

For Community Association for Restoration of the Environment Inc, a Washington Non-Profit Corporation, Plaintiff: Andrea K Rodgers Harris, LEAD ATTORNEY, The Law Office of Andrea Rodgers Harris, Seattle, WA; Daniel C Snyder, LEAD ATTORNEY, PRO HAC VICE, Law Offices of Charles M Tebbutt PC, Eugene, OR.

For United States Environmental Protection Agency, Defendant: Vanessa Ruth Waldref, LEAD ATTORNEY, U S Attorney's Office - SPO, Spokane, WA.

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THOMAS O. RICE, United States District Judge.

BEFORE THE COURT is Defendant's Motion for Summary Judgment (ECF No. 34) and Plaintiff's Cross Motion for Partial Summary Judgment (ECF No. 39). This

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matter was heard with oral argument on July 23, 2014. Andrea K. Rodgers Harris and Daniel C. Snyder appeared on behalf of the Plaintiff. Vanessa R. Waldref appeared on behalf of Defendant. The Court has reviewed the briefing and the record and files herein, and is fully informed.


This case concerns Plaintiff's Freedom of Information Act (" FOIA" ) requests to the Environmental Protection Agency (" EPA" ) regarding information about certain dairies in the Lower Yakima Valley, Washington, and nitrate contamination in residential drinking water near the dairies. In the motion now before the Court, Defendant EPA seeks summary judgment on Plaintiff's claims and Plaintiff cross-moves for partial summary judgment on Counts I, II, III and V.


In September 2012, an EPA report, " Relation Between Nitrate in Water Wells and Potential Sources in the Lower Yakima Valley" (" Yakima Valley Nitrate Study" ), found that the dairies in the study (" Yakima Valley Dairies" ) are a likely source of nitrate in the residential drinking water wells downgradient of the dairies. ECF No. 35 at 2. Based on the results of the Yakima Valley Nitrate Study, the EPA offered to negotiate an agreement with the Yakima Valley Dairies. Id. On March 6, 2013, the EPA reached a legal agreement--the Administrative Order of Consent (" AOC" )--with four of the Yakima Valley Dairies regarding the nitrate pollution. Id. at 2-3. The dairies were: Cow Palace, LLC; George DeRuyter & Son, LLC and George & Margaret, LLC (part of both D& A and George DeRuyter & Sons Dairy); Liberty Dairies, LLC and H& S Bosma Dairy (part of Liberty Dairy); and D& A Dairy, LLC. Id. at 3. The EPA contends that it was in negotiations with R& M Haak & Sons Dairy, which was also mentioned in the study. Id. But CARE contends that the EPA knew that the Haaks had no financial resources to address the AOC criteria and that subsequent EPA actions indicate that no negotiations were occurring with the Haaks. ECF No. 39-2 at 2.

On February 14, 2013, CARE filed lawsuits against the four Yakima Valley Dairies that entered into the agreement with the EPA. ECF No. 35 at 3. Shortly before doing so, CARE began to submit FOIA requests to the EPA regarding the dairies and the nitrate pollution.

FOIA Request One

On January 29, 2013 at 4:50 p.m. Pacific Time, CARE submitted its first FOIA request to the EPA (" FOIA Request One" ), requesting electronic copies of all preliminary and/or final sampling results of the groundwater sampling in the Yakima Valley. ECF No. 35 at 4; ECF No. 41-1 at 2. The EPA contends that the 20-day statutory deadline for this request was February 28, 2013. ECF No. 35 at 5. CARE's counsel Charles Tebbutt sent a letter to the EPA Region 10 Administrator stating that CARE believed February 27 was the response deadline. Id. EPA Region 10 Counsel Allyn Stern contacted CARE attorneys Tebbutt and Daniel Snyder and informed them that the EPA would require additional time to complete the request. Id. The EPA provided written notice that, pursuant to the Agency's FOIA regulations under 40 C.F.R. § 2.104(d), the EPA would need an additional ten working days to complete FOIA Request One, until March 14, 2013. Id. The notice indicated that the extension was required because of " [t]he need for consultation, which shall be conducted with all practicable speed, with another agency or EPA offices [sic] having a substantial subject-matter interest in

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your request." ECF No. 35-3. All records responsive to FOIA Request One were released on March 6, 2013. ECF No. 35 at 6; ECF No. 39-2 at 5. CARE did not appeal the EPA's response to this request.

CARE also states that CARE's counsel spoke with Allyn Stern, Regional Counsel for EPA Region 10, on February 28. ECF No. 39-1 at 2. CARE maintains Stern informed him that the EPA would not make a timely determination on Request One; that the agency was seeking a time extension based on unusual circumstances; and that the EPA had located responsive records and was not reviewing them for disclosure exemptions under the FOIA, and would not produce responsive documents until after the terms of the AOC were agreed to bye the EPA and the dairies. Id.

FOIA Request Two

CARE submitted its second FOIA request (" FOIA Request Two" ) seeking records of communications exchanged between the dairies and EPA on Friday February 1, 2013 at 4:17 p.m. Pacific Time. ECF No. 35 at 6; ECF No. 41-2 at 2. The EPA states that the appropriate program office was assigned the request on February 6, 2013. ECF No. 35 at 6. CARE states that it received electronic notification that it had made the request on February 1. ECF No. 39-1 at 4. On March 5, 2013, the EPA sent a notice to CARE stating that the Agency required an extension because of " [t]he need for consultation, which shall be conducted with all practicable speed, with another agency or EPA offices having a substantial subject-matter interest in your request." ECF No. 35-4. The notice states that the new deadline for a disclosure determination is " ten days from today, March 21, 2013." ECF No. 35-4, Exhibit 14 (emphasis in original).[1] CARE wrote to the EPA seeking clarification that the correct deadline was March 19, 2013, but received no response. ECF No. 39-2 at 7.

The EPA responded to FOIA Request Two on March 28, 2013, requesting written assurance of payment so that the agency could complete the request. ECF No. 35 at 7. CARE issued payment on April 12, 2013. Id. The EPA provided CARE with its response to FOIA Request Two by granting in-part the release of approximately 43 records, and partially denied the request by withholding records under Exemption 4 and Exemption 7(A). Id. The EPA states that this response was dated April 30, 2013, while CARE maintains that it was May 2, 2013, and that the response was only an " interim response." ECF No. 39-2 at 8.

Exemption 7(A).

The EPA withheld 61 records under Exemption 7(A), which were comprised of communications between the Agency and the Yakima Valley Dairies that pertained to settlement negotiations. ECF No. 35 at 8. On May 30, 2013, CARE appealed the EPA's response. Id. The EPA did not issue a final appeal determination regarding Exemption 7(A) on June 27, 2013. Id. CARE filed its complaint on June 28, 2013. ECF No. 35 at 8. On July 9, 2013, Haak Dairy's counsel informed the EPA that the dairy sold all of its cows.[2] Id. On September 18, 2013, the EPA released all records held pursuant to Exemption 7(A). Id.

Exemption 4.

The EPA also withheld three notebooks under Exemption 4 as

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confidential business information claimed by three Yakima Valley Dairies. ECF No. 35 at 9. The Region 10 Office of Regional Counsel was delegated the responsibility of completing a confidentiality determination for the information claimed as confidential business information (" CBI" ) for the three Yakima Valley Dairies. Id. The EPA sent a letter to the dairies on May 3, 2013, informing them that the Agency received a FOIA request for information submitted to the EPA, which the dairies had claimed as CBI. Id. The Yakima Valley Dairies' substantiation deadline was May 28, 2013. Id. Counsel for the dairies contacted the EPA on May 22, 2013, requesting a ten working-day extension for their response, stating that:

[one attorney's] vision has been impacted by an adverse reaction to an insect bite she sustained on her eyelid. The swelling and discomfort associated with this has significantly impacted her ability to work this week and she will not be able to work the remainder of the week. Second, [another attorney] will be out for a previously scheduled vacation until Tuesday, May 28--the date the dairy responses are due. The fact that both [attorneys] are unavailable, coupled with the Memorial Day holiday and our inability to fully coordinate with our clients, significantly impair the Dairies' ability to fully respond to the EPA's request.

ECF No. 35-5. The EPA granted the Dairies' extension request. ECF No. 35 at 10. The agency received the substantiations from the three Yakima Valley Dairies on June 7, 2013. Id. On March 11, 2014, the Agency issued an adverse determination on a subset of the three dairies' CBI claims.[3] Id. The three dairies did not seek judicial review of this partial confidentiality determination, and the EPA released the information in the partial CBI determination to CARE on March 28, 2014. Id. CARE received documents that were heavily redacted. ECF No. 39-2 at 11.

On July 21, 2014, two days before the hearing on the motions now before the Court, the EPA filed a Notice of Case Update Regarding EPA's Final Confidentiality Determination. ECF No. 55. In it, the EPA states that it has determined that the information claimed as confidential by the dairies is not a trade secret or confidential business information, and will accordingly be released to CARE subject to the EPA's regulations at 40 C.F.R. § 2.205(f). ECF No. 55 at 2.

FOIA Request Three

Care submitted its third FOIA request (" FOIA Request Three" ) on July 12, 2013. ECF No. 35 at 11. The EPA contends that the request was submitted after 5 p.m. Eastern Time, and therefore received it on July 15, 2013. Id. On July 15, 2013, the EPA contacted CARE to clarify the scope of its FOIA request. ECF No. 35 at 12. On August 12, 2013, the Agency notified CARE that pursuant to its FOIA regulations under 40 C.F.R. § 2.104(d), the EPA would need additional time--until August 28, 2013--to complete FOIA Request Three. ECF No. 35-6, Exhibit 34. The EPA contends that this is a 10-day extension; CARE contends it was 12-day extension. On August 27, 2013, the EPA issued its response to FOIA Request Three and released 74 records. ECF No. 35 at 12. It also withheld certain information. Id. The EPA states that the records were withheld pursuant to FOIA Exemption 6, and that under this exemption it redacted personal information about the well users and dairymen. ECF No. 35 at 12. CARE contends that this justification is materially different than what the EPA told CARE in its August 27, 2013, letter;

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that the EPA did not inform CARE what information was redacted under what exemption until the present motion was filed, ECF No. 39-2 at 14; and that records were withheld pursuant to a private agreement reached between the American Farm Bureau Federation and the EPA, ECF No. 39-1 at 8.

The EPA maintains that the EPA also redacted another subset of information related to ongoing litigation in United States District Court in Minnesota. ECF No. 35 at 12. CARE contends that the EPA did not indicate which information was being redacted under which exemption or pursuant to a private agreement with a private litigant. ECF No. 39-2 at 14.

American Farm Bureau Reverse-FOIA litigation.

On July 5, 2013, the American Farm Bureau Federation (" AFBF" ) and the National Pork Producers Council filed a reverse-FOIA lawsuit against the EPA and its administrator in the District of Minnesota, seeking preliminary and injunctive relief prohibiting the release of certain information related to farms and their operations which had been collected by the Agency. ECF No. 35 at 13. The AFBF claimed that the EPA released farm information that should have been protected under FOIA Exemption 6. Id. The EPA decided to temporarily defer pending and subsequent FOIA requests seeking the same farm information the AFBF plaintiffs allege is subject to Exemption 6, based on the complexity of the Exemption 6 analysis before the district court and the nature of the alleged privacy interests at issue. Id. CARE contends that this is an admission that the EPA has violated the FOIA by deciding to defer properly made FOIA requests for reasons that are not cognizable under the statute. ECF No. 39-2 at 15. On September 11, 2013, the FOIA Office released in full the information withheld due to the pending litigation. ECF No. 35 at 14.[4]

FOIA Request Four

CARE submitted its fourth FOIA request (" FOIA Request Four" ) on August 28, 2013. ECF No. 35 at 14. The EPA states that the Region 10 FOIA Office received FOIA Request Four on August 29, 2013 and Region 10 was assigned as the lead office for this FOIA request. Id. The Region 10 FOIA Officer reassigned FOIA Request Four to the Headquarters FIOA Office on September 3, 2013. Id. at 15. The FOIA Office for the Office of Water received FOIA Request Four on September 4, 2013, and the deadline was calculated to be October 1, 2013. Id. CARE contends that the deadline should have been 20 days after the Agency's initial receipt of the request on August 28, 2013. ECF No. 39-2 at 16. On September 30, 2013, the EPA informed CARE that it would not complete FOIA Request Four within the 20-day statutory period because of " unusual circumstances," including the " Agency's need to search for an collect the requested records from field facilities or other establishments that are separate from the office processing the request." ECF No. 35-6, Exhibit 39. The notice stated that the Agency would respond to FOIA Request Four on or before October 16, 2013. Id. After the Federal Government reopened, the EPA contacted CARE on October 24, 2013, to request an alternative deadline of December 16, 2013, to complete FOIA Request Four, citing the federal government shutdown (between the end of the day September 30, 2013, and October 17, 2013). ECF No. 35 at 15-16. This extension sought more than the statutory 10-day extension. The

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EPA and CARE ultimately agreed on an alternative deadline which would require the Agency to complete FOIA Request Four by December 15, 2013, and provide an interim response by November 15, 2013. ECF No. 35 at 16. On November 14, 2013, the EPA provided its interim response by releasing seven records to CARE. Id. On December 13, 2013, the EPA issued its response to FOIA Request Four by releasing 22 partially redacted records and withholding approximately 288 documents ...

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