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Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency

August 19, 2008


The opinion of the court was delivered by: Denise Cote, District Judge


This Opinion addresses cross-motions for partial summary judgment filed by the parties in this Freedom of Information Act ("FOIA") case. Plaintiff, a non-profit environmental organization, sought a fee waiver in connection with its request for certain records from the defendant, the United States Environmental Protection Agency ("EPA"). The EPA denied plaintiff's request for a fee waiver. Having exhausted its administrative appeals, plaintiff now moves for summary judgment on its complaint that the EPA wrongfully denied the fee waiver. The EPA opposes plaintiff's motion and cross-moves for partial summary judgment. For the following reasons, the parties' motions for summary judgment are each granted in part.


The following facts are undisputed. Plaintiff Natural Resources Defense Council, Inc. ("NRDC") is a large, well-known non-profit environmental organization. Its mission statement declares that the organization's purpose "is to safeguard the Earth: its people, its plants and animals, and the natural systems on which all life depends." For more than twenty years, NRDC has been active in the development, enforcement, and reform of pesticide laws, including those governing a family of pesticides known as ethylene bisdithiocarbamates ("EBDCs").*fn1

NRDC maintains that widespread use of EBDCs could result in dangerously high levels of exposure to a carcinogenic chemical that is produced when EBDCs degrade or are ingested on fruits or vegetables.

EBDCs were first registered in the United States in 1948. In 1992, the EPA restricted the use of EBDCs on potatoes by issuing a "Notice of Intent to Cancel and Conclusion of Special Review" (the "NOIC") which required a fourteen-day interval between the last application of EBDCs to potato crops and the potatoes' harvesting. The EPA allowed a shorter pre-harvest interval of only three days for EBDC use in nine states where potato crops were affected by blight late in the harvest cycle.*fn2

At the time, the EPA believed that the lack of any interval between EBDC application and harvesting could result in unacceptable dietary risks.

EBDCs came due for periodic reregistration with the EPA in 2003. During the reregistration process, an EBDC industry task force requested that the EPA alter its EBDC regulations and approve a nationwide three-day pre-harvest interval. Following the publication of certain reports assessing the health risks and mitigation options associated with EBDCs, the EPA determined that the industry task force's request to alter the EBDC regulations warranted a hearing. A notice of hearing was issued on July 11, 2007, explaining in some detail the basis for the EPA administrator's decision to hold the hearing. In particular, the notice of hearing referenced substantial new evidence marshaled by the industry task force showing that late blight was a continuing and growing problem for the nation's potato crop, and that EBDCs posed a lesser health risk than was previously thought. As the EPA notes, the administrator's decision to initiate a hearing on EBDCs "does not imply that EPA has finally decided to make the requested modification." "Rather, a decision to initiate a hearing means only that the Administrator has determined that the evidence submitted, if substantiated on the record in the hearing, may materially affect the evidentiary rationale upon which the prior order was based." Notice of Hearing on Request to Reduce Pre-Harvest Interval for EBDC Fungicides on Potatoes, 72 Fed. Reg. 37,771, 37,774 (Jul. 11, 2007) (the "Notice of Hearing").

On December 13, 2007, NRDC sent a FOIA request to the EPA for "all records reflecting or relating to any contacts, meetings, or communications with pesticide registrants and other outside entities or individuals concerning [EBDCs] and pesticide products containing EBDC . . . since August 18, 2003." The request enumerated eight categories of outside entities as being included in the search.*fn3 It also explained that "contacts, meetings, or communications" with outside entities concerning requests to reduce the pre-harvest interval for EBDC use on potatoes were included in this FOIA request. Finally, the request identified nine EPA officials who were likely to have responsive documents.*fn4

Pursuant to a provision in FOIA which provides for fee waivers for the information requested "if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester," 5 U.S.C. § 552(a)(4)(A)(iii), NRDC asked the EPA to waive the fee normally associated with FOIA requests. NRDC explained that the requested records would "shed light on the breadth and variety" of EPA discussions of EBDCs with pesticide registrants and others, would inform the public "on the nature and extent" of those contacts, and would contribute "to public understanding of the legal basis, policy justifications, and public health implications of governmental agency risk assessments and potential regulatory action or inaction." In support of its waiver request, NRDC attached exhibits purporting to show the public health concerns surrounding use of EBDCs, as well as documentation of the organization's "proven ability to digest and disseminate such information quickly and efficiently" and its "long history of incorporating information obtained through FOIA into reports, articles and other communications," thus "illustrat[ing] NRDC is well prepared to convey to the public any relevant information it obtains through this records request."

By letter dated December 28, 2007, Larry Gottesman, National FOIA Director for the EPA, rejected NRDC's request for a fee waiver. In one brief paragraph, Gottesman informed NRDC that its request had been denied because "the material requested is not in the public interest because it is not likely to contribute significantly to public understanding of government operations or activities." The letter apprised NRDC of its right to appeal the fee waiver denial through the EPA's administrative appeals protocol.

NRDC filed a timely administrative appeal on January 25, 2008, and included additional material substantiating its eligibility for a fee waiver. In its appeal, NRDC explained that EBDCs are "pesticides of widespread public health concern" and the "EPA is proposing to reverse a long-standing safety determination restricting the use and application of EBDC fungicides on potatoes nationwide, in response to a request from the chemical companies that manufacture EBDCs." Accordingly, NRDC claimed, the documents sought were important to the public because they would shed light on "the extent to which EPA has been heavily influenced in its decision by communications with or lobbying by the chemical companies." Having received no reply to its appeal, NRDC commenced this action against the EPA on March 11, 2008, seeking principally a declaration that the EPA has violated FOIA by failing to produce the records requested by NRDC, and an order requiring the EPA to produce those records at no cost to NRDC within twenty days.*fn5

On April 25, 2008, EPA assistant general counsel Kevin M. Miller wrote to NRDC and, in a nine-page missive, rejected its appeal of the fee waiver denial.*fn6 Evaluating NRDC's request for a fee waiver under the factors enumerated in FOIA as well as the EPA's implementing regulations, the EPA determined that the information sought by NRDC lacked "informative value" and would not make a "significant contribution to public understanding of government operations or activities." First, the denial letter indicated that the agency had established a publicly available docket of information concerning EBDC regulation collected during the EBDC reregistration procedure. Based in large part on the existence of this trove of publicly available information concerning EBDC regulation, the EPA determined that "[t]here is no reason to believe that your request will likely lead to an increased public understanding of EPA's review of EBDC given the vast amount of information already available in the public domain." The EPA accused NRDC of ignoring this publicly available information in making its FOIA request, faulting the organization for not addressing the "administrative process that has taken place, the available docket, or the explanations provided to the public in the Federal Register notice." The denial letter continued:

NRDC simply argues that non-public information will substantially increase public knowledge about the basis of EPA's decision to allow the hearing process to move forward. . . . NRDC appears to suggest that a fee waiver must be granted any time a request asks for nonpublic information concerning the basis for an agency's decision --- even though the basis for the agency's decision has been fully explained on the public record, ...

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