Environmental Protection Services v. U.S. E.P.A.

364 F.Supp.2d 575

ENVIRONMENTAL PROTECTION SERVICES, INC., Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Michael O. Leavitt, in his official capacity as Administrator, United States Environmental Protection Agency, Defendants.

No. CIV.A. 5:03CV230.

United States District Court, N.D. West Virginia.

March 23, 2005.

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Edward L. Kropp, Lindsey K. Griffith, Jackson Kelly, PLLC, Charleston, WV; Larry W. Blalock, Jackson & Kelly, Wheeling, WV; and Michael J. Halaiko, Miles & Stockbridge, PC, Baltimore, MD, for Plaintiff.

Helen Campbell Altmeyer, U.S. Attorney's Office, Wheeling, WV, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

STAMP, District Judge.

I. Procedural History

On October 3, 2003, the plaintiff, Environmental Protection Services, Inc. ("EPS"), filed a complaint in this Court seeking declaratory relief. The complaint alleges that the defendants, United States Environmental Protection Agency ("EPA"), and Michael O. Leavitt, in his official capacity as Administrator of the EPA, acted unlawfully in withholding records requested by the plaintiff through the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2004). In addition, the complaint seeks a preliminary and final injunction enjoining the defendants from withholding these records. On November 6, 2003, the defendants filed a motion to dismiss or, in the alternative, to effect proper service. The plaintiff responded indicating that it had subsequently provided proper service, and this Court denied the motion as moot on December 10, 2003.

The parties filed Vaughn¹ indices on May 5, 2004 and May 13, 2004. On May 10, 2004, the plaintiff filed a motion for an evidentiary hearing. On May 17, 2004, the defendants filed a memorandum in opposition to the plaintiff's motion for an evidentiary hearing along with a motion for protective order. On May 27, 2004, the defendants filed a motion for emergency stay of the agreed order vacating the first order and notice, to which the plaintiff responded in opposition. On June 7, 2004, this Court entered an order denying the defendants' motion for emergency stay of the first order and notice and scheduling order, denying as moot the defendants' motion for protective order, and denying without prejudice the plaintiff's motion for an evidentiary hearing.

On June 17, 2004, the plaintiff filed a second motion for an evidentiary hearing/discovery, to which the defendants responded in opposition. This Court denied the plaintiff's motion on August 23, 2004 and reset the deadlines for dispositive motion responses.

On June 4, 2004, the defendants filed a motion for summary judgment and a motion for leave to file a memorandum in excess of the page limit. On June 23, 2004, this Court granted the defendants' motion to file a memorandum in excess of the page limit and filed the defendants' supporting memorandum. The plaintiff later responded to the defendants' motion, and the defendants replied.

Now before the Court is the defendants' motion for summary judgment. After consideration of the applicable law, the Vaughn indices and supporting declarations, the briefs submitted, and the materials submitted in support of those briefs, this Court finds that the defendants' motion for summary judgment should be granted.

II. Facts

Plaintiff EPS is a West Virginia corporation with its principal place of business in West Virginia. The plaintiff operates a PCB electrical equipment waste disposal facility.

In its complaint, the plaintiff alleges that the defendants unlawfully failed to comply with the following two FOIA requests submitted by the plaintiff:

(1) FOIA request of October 2, 2002 submitted to EPA, Region III;

(2) FOIA request of September 4, 2002 submitted to EPA, Region II.

The plaintiff seeks a declaratory judgment from this Court requiring that the defendants comply with the plaintiff's FOIA requests and stating that the defendants have acted unlawfully in denying or otherwise failing to adequately respond to the plaintiff's FOIA requests. The plaintiff also seeks a preliminary and final injunction enjoining the defendants from acting unlawfully in withholding the requested records in violation of FOIA. Finally, the plaintiff seeks an award of costs and attorney's fees.

According to the plaintiff, the documents it seeks "are of great relevance to the public generally" because "they indicate a pattern or practice of holding regulated parties in different regions of the EPA to different standards, despite the fact that the PCB program, as a federal program, is intended to be applied uniformly nationwide." Compl. ¶ 28.

III. Applicable Law

A. Summary Judgment

Freedom of Information Act cases are generally resolved on summary judgment. Wickwire Gavin, P.C. v. United States Postal Serv., 356 F.3d 588, 591 (4th Cir.2004). Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "The burden then shifts to the nonmoving party to come forward with facts sufficient to create a triable issue of fact." Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir.1991)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

However, as the United States Supreme Court noted in Anderson, "Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Id. at 256, 106 S.Ct. 2505. "The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. 2505; see also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979) (Summary judgment "should be granted only in those cases where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law." (citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950))).

In Celotex, the Court stated that "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Summary judgment is not appropriate until after the non-moving party has had sufficient opportunity for discovery. See Oksanen v. Page Mem'l Hosp., 912 F.2d 73, 78 (4th Cir.1990). In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Freedom of Information Act

"The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). The government agency has the burden of establishing the adequacy of its search for the requested documents. Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir.1994). The FOIA also places the burden of justifying nondisclosure on the government agency. 5 U.S.C. § 552(a)(4)(B). Thus, the government agency has the burden to demonstrate that any document withheld falls within a stated exemption. See 5 U.S.C. § 552(a)(4)(B) ("the burden is on the agency to sustain its action [of withholding a record under a stated exemption]"). Moreover, the FOIA exemption must be narrowly construed in favor of disclosure. Wickwire Gavin, 356 F.3d at 591. Accordingly, FOIA requires that "any reasonable segregable portion of the record shall be provided ... after deletion of the portions which are exempt...." 5 U.S.C. § 552(b).

Subsection 552(b) delineates nine exemptions to the disclosure requirement. The government agency's burden of proving that an exemption applies may be met through affidavits which must be relatively detailed, nonconclusory and submitted in good faith. See Simmons v. United States Dep't of Justice, 796 F.2d 709, 711 (4th Cir.1986). The Fourth Circuit has stated that:

If the government fairly describes the contents of the material withheld and adequately states its grounds for nondisclosure, and if those grounds are reasonable and consistent with the applicable law, a district court should uphold the government's position. The court is entitled to accept the credibility of the affidavits, so long as it has no reason to question the good faith of the agency.

Spannaus v. United States Dep't of Justice, 813 F.2d 1285, 1289 (4th Cir.1987) (citing Barney v. IRS, 618 F.2d 1268, 1272 (8th Cir.1980)).

IV. Discussion

The EPA asserts that it has conducted an adequate search and provided all responses necessary pursuant to FOIA. Further, it claims that the plaintiff has been provided with indices documenting the legal reasons why any documents have been withheld pursuant to FOIA exemptions. In...