A federal court in Washington has determined that the U.S. Environmental Protection Agency (EPA) did not violate the Freedom of Information Act (FOIA) in responding to requests for information relating to its investigation of nitrate levels in groundwater and residential drinking water wells in the Lower Yakima Valley. Cmty. Ass’n for Restoration of the Env’t, Inc. v. EPA, No. 13-3067 (E.D. Wash., order entered August 6, 2014). Because the environmental organization (CARE), which is a plaintiff in Resource Conservation and Recovery Act (RCRA) citizen suits against the dairies whose documents are part of the FOIA requests, also alleged Administrative Procedure Act (APA) violations against EPA, the court granted its request to allow the parties to brief the merits of CARE’s APA claim.

Meanwhile, the dairies subject to the RCRA actions have filed a lawsuit against EPA, seeking an order prohibiting EPA from disclosing to CARE or other members of the public any of the purportedly confidential information and documents that were allegedly voluntarily produced to the agency as part of negotiations leading to a consent order related to the agency’s nitrate investigation and findings in the Lower Yakima Valley region. Cow Palace, LLC v. EPA, No. 14-3104 (E.D. Wash., filed July 31, 2014). They claim that the material is protected under Federal Rule of Evidence 408, “which prohibits use of settlement communications to establish liability.”

They also contend that in July 2014 EPA issued final determination letters as part of CARE’s FOIA requests, finding some of the dairies’ material not entitled to confidential treatment, despite a court order issued in March in the RCRA litigation denying CARE’s request to remove the “confidential” designation from business information the dairies produced under a stipulated protective order. The RCRA court found that the records constitute confidential information about the dairies’ business operations. The dairies claim that “EPA should have denied CARE’s FOIA requests for disclosure of information that had previously been determined by the Court to be confidential business information that is not subject to public disclosure.” In this regard, they claim that the agency’s action was arbitrary and capricious and an abuse of discretion.

According to the dairies’ complaint, “CARE’s only reason for making its FOIA request to EPA is so it can use the Dairies’ internal, confidential documents as part of a public relations campaign to smear the Dairies with allegations of wrongdoing.” The dairies further note that CARE does not need duplicative records from EPA to support its RCRA lawsuit, because the organization already “possesses much of the information and documents that are the subject of the Final Determinations.”


Issue 533

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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