Exhibit 1
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Exhibit 1
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November 26, 2013
The Honorable Gina McCarthy Administrator United States Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 RE: Need for Nationwide Consistency on Implementation of the 8th Circuit’s Iowa League of Cities Decision Dear Administrator McCarthy, As you are aware, on March 25, 2013, the 8th Circuit Court of Appeals issued a ruling in Iowa League of Cities v. EPA (Docket No. 11-3412) that vacated, on procedural and substantive grounds, the unadopted legislative rules set forth in two U.S. Environmental Protection Agency (EPA) guidance letters. The decision addressed EPA’s reinterpretation and enforcement of three key federal rules (bypass rule, Secondary Treatment rule and Water Quality-Based Permitting rule) that apply nationwide. Specifically, the Court held that EPA’s prohibition of bacteria mixing zones in primary contact recreation waters, regardless of the degree of possible health risks, unlawfully eliminated state discretion to utilize such mixing zones and, therefore, constituted a revised rule that did not go through the proper rulemaking procedures under the Administrative Procedure Act (APA). The Court also found that EPA’s blending prohibition, which restricted how municipalities could design facilities to address peak flow processing (thereby reducing CSO and SSO discharges or system backups), exceeded the Agency’s statutory authority under the Clean Water Act (CWA) and was inconsistent with both EPA’s secondary treatment rule and bypass rule (711 F.3d 844 (8th Cir. 2013)).
Case 1:14-cv-00808-JDB Document 1-3 Filed 05/15/14 Page 3 of 67 We understand that even though this decision came down more than seven months ago and was never stayed, clarification requests regarding the implementation of this decision have gone unanswered and EPA has yet to withdraw its prior objections to NPDES permits based on these now vacated policies. We also understand based on recent public comments from EPA officials that the Agency believes the decision to have binding legal effect only in the 8th circuit and that it will be applied to permittees elsewhere in the country on a case-by-case basis. We would note that Congress expressly granted the circuit courts original jurisdiction to review the NPDES regulations at issue under Section 509 of the CWA to ensure nationwide uniformity and that EPA regulations provide for only one circuit to render an opinion on a petition for review. Consequently, we believe there is no legal basis to assert that the 8th Circuit decision does not apply nationwide. In closing, the Agency’s attempt to modify nationally applicable NPDES rules without undertaking a rulemaking was struck down in no uncertain terms. The issues in this case have been causing delay and confusion for municipal entities throughout the country in addressing wet weather compliance and have greatly increased local costs, unnecessarily. For example, even by its own estimates, the municipal cost implication of implementing just one of these rule interpretations was estimated by EPA to exceed $150 billion nationwide, with similar extraordinary costs associated with the other provisions. It is time to put that confusion and conflict to rest. Accordingly, we respectfully request confirmation that EPA will apply the Iowa League of Cities decision uniformly across the country and so advise its Regions and delegated States. Sincerely,
Tom Cochran CEO and Executive Director The U.S. Conference of Mayors
Clarence E. Anthony Executive Director National League of Cities
Chuck Thompson Executive Director and General Council International Municipal Lawyers Association
Matthew D. Chase Executive Director National Association of Counties
Ken Kirk Executive Director National Association of Clean Water Agencies
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Exhibit 2
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Exhibit 3
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Hall & Associates
Telephone: (202) 463-1166
Suite 701 1620 I Street, NW Washington, DC 20006-4033 Web: http://www.hall-associates.com
Fax: (202) 463-4207
Reply to E-mail:
[email protected] October 25, 2013 VIA ONLINE FOIA SYSTEM National Freedom of Information Officer U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW (2822T) Washington, D.C. 20460 E-mail: [email protected] RE:
Freedom of Information Act Request for Records Associated with Iowa League of Cities v. EPA decision
To Whom This May Concern: This is a request for public records pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as implemented by the Environmental Protection Agency (“EPA”) at 40 C.F.R. Part 2. For purposes of this request, the definition of “records” includes, but is not limited to, documents, letters, memoranda, notes, and e-mail messages sent by EPA personnel from EPA accounts and any private accounts regarding EPA matters. On March 25, 2013, the Court of Appeals for the Eighth Circuit issued a decision in the Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) vacating the mixing zone rule contained in the June 2011 letter and the blending rule contained in the September 2011 letter. The court held that the bacteria mixing zone prohibition in primary contact recreation waters “eviscerate[d] state discretion” to utilize such mixing zones and, therefore, constituted a revised rule that did not go through proper rulemaking procedures. Id. at 874. Additionally, the court found EPA’s blending prohibition was both procedurally and substantively improper as it was “irreconcilable with both the secondary treatment rule and the bypass rule” (id. at 875) and “exceeds EPA’s statutory authority” under the CWA. Id. at 877. This request seeks any records containing the following: 1. Any communication between EPA Headquarters and EPA Regional offices discussing the impact of the Iowa League of Cities decision on permitting and enforcement actions;
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2. Any communication between EPA Regional offices and state entities discussing whether the Iowa League of Cities decision should be or should not be followed in future regulatory actions; and, 3. Any EPA legal or regulatory analysis regarding the effect of the Iowa League of Cities decision including whether the decision will be followed by all EPA Regions nationwide. Please contact the undersigned if the associated search and duplication costs are anticipated to exceed $250.00. Please duplicate the records that are responsive to this request and send them to the undersigned at the above address. If any requested records are withheld based upon any asserted privilege, please identify the basis for the non-disclosure. If the Agency lacks records responsible to a particular item, please note that in the response. If you have any questions regarding this request, please do not hesitate to contact this office so as to ensure that agency resources are conserved and only the necessary documents are reproduced. Sincerely, /s/ John C. Hall JOHN C. HALL
2
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Exhibit 4
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Hall & Associates
Telephone: (202) 463-1166
Suite 701 1620 I Street, NW Washington, DC 20006-4033 Web: http://www.hall-associates.com
Fax: (202) 463-4207
Reply to E-mail:
[email protected] November 18, 2013 VIA ONLINE FOIA SYSTEM National Freedom of Information Officer U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW (2822T) Washington, D.C. 20460 E-mail: [email protected] RE:
Freedom of Information Act Request for Records Associated with Iowa League of Cities v. EPA decision- Amended Request
To Whom This May Concern: On October 25, 2013, we submitted a FOIA request to Headquarters and to the ten EPA regional offices for records associated with the Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013). Specifically the request sought any records containing the following: 1. Any communication between EPA Headquarters and EPA Regional offices discussing the impact of the Iowa League of Cities decision on permitting and enforcement actions; 2. Any communication between EPA Regional offices and state entities discussing whether the Iowa League of Cities decision should be or should not be followed in future regulatory actions; and, 3. Any EPA legal or regulatory analysis regarding the effect of the Iowa League of Cities decision including whether the decision will be followed by all EPA Regions nationwide. As a number of the Regional Offices have indicated that Headquarters will consolidating these FOIA requests (although this has not been confirmed by Headquarters), we are submitting this amended FOIA request only to EPA Headquarters in anticipation of such consolidation. Amended request: Last week, EPA Headquarters personnel including Connie Bosma, Kevin Weiss, and Steven Neugeboren, met with EPA Region 7, the States within Region 7, and representatives from the
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regulatory community to discuss the implementation of the Iowa League of Cities decision. Therefore, we would like to amend our FOIA request to include all records to date, falling within the three categories specified above including documents regarding last week’s meeting between EPA Headquarters, EPA Region 7, the States, and the regulated community. As previously stated in the original FOIA request, for purposes of this request, the definition of “records” includes, but is not limited to, documents, letters, memoranda, notes, and e-mail messages sent by EPA personnel from EPA accounts and any private accounts regarding EPA matters. Additionally, please contact the undersigned if the associated search and duplication costs are anticipated to exceed $250.00. Please duplicate the records that are responsive to this request and send them to the undersigned at the above address. If any requested records are withheld based upon any asserted privilege, please identify the basis for the non-disclosure. If the Agency lacks records responsible to a particular item, please note that in the response. If you have any questions regarding this request, please do not hesitate to contact this office so as to ensure that agency resources are conserved and only the necessary documents are reproduced. Sincerely, /s/ John C. Hall JOHN C. HALL
2
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Exhibit 5
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Exhibit 6
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Hall & Associates
Telephone: (202) 463-1166
Suite 701 1620 I Street, NW Washington, DC 20006-4033 Web: http://www.hall-associates.com
Fax: (202) 463-4207
Reply to E-mail:
[email protected] December 2, 2013 USEPA Headquarters William Jefferson Clinton Building 1200 Pennsylvania Ave., N.W. Mail Code: 4203M Washington, D.C. 20460 RE:
Freedom of Information Act Request for Records Associated with Iowa League of Cities v. EPA decision- Amended Request
Dear Mr. Weiss: On November 21, 2013, EPA requested written assurance for payment regarding FOIA requests submitted by H&A on October 25, 2013, to Headquarters and to the ten EPA regional offices for records associated with the Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013). As Nancy Stoner, EPA Acting Assistant Administrator for Water, has announced EPA’s position that the Iowa League of Cities decision only applies in the 8th Circuit (i.e., the Agency will not being applying the decision nationwide), H&A would like to modify and narrow the October 25, 2013, FOIA requests as follows. Please provide only the following records: 1. Any legal or regulatory analysis or briefing materials prepared in support of the agency’s decision to only apply the Iowa League of Cities decision in the 8th Circuit; 2. Any notifications given to the Regional offices from EPA Headquarters regarding the agency’s aforementioned decision to only apply the Iowa League of Cities decision in the 8th Circuit; and, 3. Any documents explaining how peak flow processing (also known as “blending”) and bacteria mixing zones for CSO and stormwater discharges will be addressed in permitting and enforcement actions within the 8th Circuit versus outside of the 8th circuit. As previously stated in the original FOIA request, for purposes of this request, the definition of “records” includes, but is not limited to, documents, letters, memoranda, notes, and e-mail
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messages sent by EPA personnel from EPA accounts and any private accounts regarding EPA matters. Additionally, please contact the undersigned if the associated search and duplication costs are anticipated to exceed $250.00. Please duplicate the records that are responsive to this request and send them to the undersigned at the above address. If any requested records are withheld based upon any asserted privilege, please identify the basis for the non-disclosure. If the Agency lacks records responsible to a particular item, please note that in the response. If you have any questions regarding this request, please do not hesitate to contact this office so as to ensure that agency resources are conserved and only the necessary documents are reproduced. Sincerely, /s/ John C. Hall JOHN C. HALL
2
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Exhibit 7
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Exhibit 8
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)URP 7R &F 6XEMHFW 'DWH $WWDFKPHQWV
-RKQ+DOO :HLVV.HYLQ .HLVKD6HGODFHN %RVPD&RQQLH 5( 5HYLVHG:ULWWHQ$VVXUDQFHRI3D\PHQWIRU%OHQGLQJ)2,$ :HGQHVGD\'HFHPEHU 30 LPDJHSQJ
Kevin Please consider this email the official written confirmation. All the Regional FOIAs requests regarding the implementation of the Iowa League decision are hereby withdrawn. Thanks John John C. Hall Hall & Associates 1620 I Street, NW, Suite 701 Washington, DC 20006 Phone: 202-463-1166 Fax: 202-463-4207 E-Mail: [email protected] The information contained in this e-mail is confidential and intended only for use by the individual or entity named. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by replying to this e-mail and destroying the original e-mail and any attachments thereto.
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Exhibit 9
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Exhibit 10
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From: To: Cc: Subject: Date: Attachments:
Keisha Sedlacek Weiss, Kevin; John Hall Bosma, Connie RE: Revised Written Assurance of Payment for Blending FOIA Monday, December 16, 2013 10:21:03 AM image001.png
Kevin: We will agree to pay the estimated $1,073.25 for the records. However, we do find it inconceivable that with the limited scope of documents we are asking for and the fact that we have narrowed our request to only include Headquarters documents, that the cost has only dropped to $1,073.25 from the Agency’s original estimate of $3442.00. We do reserve our right to dispute the charges based upon the records we receive. Keisha
Keisha M. Sedlacek, Esq. Hall & Associates 1620 I Street, NW Suite 701 Washington, DC 20006 Ph.: 202.463.1166 Fax: 202.463.4207 E-Mail: [email protected] PRIVILEGED AND CONFIDENTIAL – ATTORNEY-CLIENT WORK PRODUCT The information contained in this e-mail is confidential and intended only for use by the individual or entity named. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by replying to this e-mail and destroying the original e-mail and any attachments thereto.
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Exhibit 11
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Case 1:14-cv-00808-JDB Document 1-3 Filed 05/15/14 Page 44 of 67 COST WORKSHEET FOR FOIA REQUEST # EPA-HQ-2014-000552 Fill Out Part 2 EVEN if requester was not billed. Please complete and return to Diane C. Jones, OW FOIA (4101M) with a copy of FOIA response letter, and Bill of Collection (if any).. 1.
Use this table to figure FOIA billable charges to requester
Costs:
Clerical Staff - $4.00/15 minutes Professional Staff - $7.00/15 minutes Manager= s Time - $10.25/15 minutes $.15/page (double-sided $.30)
Photocopies: Authentication: $25.00 No Fee Charged for < = $14.00 NEW: Bills sent between $14.01-25.00, no payment assurance required Written Assurance of payment from requester for amounts >$25.00, then billed
Time
Amount $
Task
29.25 hours
$ 861.25
Search
5 hours
$ 153.00
Review
10 copies
$ 1.50
# of Photocopies - ($.15/page - Color Copies Extra) $2.25 Cost of Disk/Mailer Computer System Time
N/A
Authentication
TOTAL
$1015 .75 Use this table to figure administrative costs to Agency.
2.
Administrative cost figured in one-minute increments x employee salary - FOR ALL EMPLOYEES INVOLVED IN RESPONDING TO FOIA. These costs NOT BILLED to requester. Time
Amount $
Task
30 minutes
$
14
Initially read FOIA
34.25 hours
$ 1,014.25
Search & Review
$ 1.50
Photocopying time/costs ($.15/page) Authentication Phone call(s) to REQUESTER
2 hours
$
56.00
Phone calls to FOIA Office, colleagues, attorneys
1 hour
$
28.00
Typing & proofing letter/envelope
1 hour
$
41.00
Proof & Sign FOIA + ALL Concurrences Other time spent on FOIA Computer Time/Programming Costs Maps/Disks/CD ROM, Photos, Etc. Costs
Case 1:14-cv-00808-JDB Document 1-3 Filed 05/15/14 Page 45 of 67 Approx. Mailing/Postage Costs ($.37 per 4pgs. + $.23 per add= l. ounce)
TOTAL
$ 1,154.75
Preparer’s Name/Mail Code:_Kevin Weiss (4203M)
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Exhibit 12
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Hall & Associates
Telephone: (202) 463-1166
Suite 701 1620 I Street, NW Washington, DC 20006-4033 Web: http://www.hall-associates.com
Fax: (202) 463-4207
Reply to E-mail:
[email protected] January 14, 2014 USEPA Headquarters/FOIA Office William Jefferson Clinton Building 1200 Pennsylvania Ave., N.W. Mail Code: 4203M Washington, D.C. 20460 RE:
Freedom of Information Act Request EPA-HQ-2014-000552
Dear Ms. Nagle: After reviewing the Agency’s partial response to Hall & Associates (“H&A”) dated December 24, 2013 (“Partial Response”), it is clear the Agency conducted the wrong assessment. On November 13, 2013, EPA informed the public that the Iowa League of Cities decision did not apply outside the 8th Circuit. In our December 2, 2013, modified request, we asked the Agency to provide only the following records: 1. Any legal or regulatory analysis or briefing materials prepared in support of the agency’s decision to only apply the Iowa League of Cities decision in the 8th Circuit; 2. Any notifications given to the Regional offices from EPA Headquarters regarding the agency’s aforementioned decision to only apply the Iowa League of Cities decision in the 8th Circuit; and, 3. Any documents explaining how peak flow processing (also known as “blending”) and bacteria mixing zones for CSO and stormwater discharges will be addressed in permitting and enforcement actions within the 8th Circuit versus outside of the 8th circuit. None of the documents provided by the Agency in its Partial Response or withheld as predecisional are responsive to H&A’s FOIA request for records supporting EPA’s decision to apply the Iowa League of Cities decision only in the 8th Circuit. The first two documents related to a powerpoint presentation entitled “NPDES Litigation Update,” simply summarized the Court’s decision and do not pertain to the final decision rendered by the Agency (i.e., part 1 of the request). The emails provided state that the Region will be discussing the decision at a meeting and that no new agency statements regarding the decision have been released. Once
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again, these provide no notification of when the Agency’s decision was actually made (i.e., part 2 of the request) on how to implement the decision (i.e., part 3 of the request). Finally, the desk statement summarizes the decision and provides one open-ended statement that the Agency is “reviewing the decision and discussing potential next steps with the Department of Justice.” It is especially confusing as to why the Agency provided the desk statement as the document was released the day after the decision was issued and therefore, could not possibly (and does not) provide the insight into the Agency’s position that the decision only applies in the 8th Circuit as announced by Nancy Stoner, EPA Acting Assistant Administrator for Water, on November 13, 2013. Regardless, none of the documents provided by the Agency in its Partial Response are responsive to H&As FOIA request nor is it apparent that the documents withheld were related to the actual request. Moreover, EPA has charged H&A a fee of $1,015.75 for conducting a search and review of records which clearly do not respond to H&As FOIA request. H&A is more than willing to pay for the Agency’s review, as evidenced by the payment assurance given by H&A, so long as the review is for the records actually requested by H&A. Here, clearly, that is not the case and H&A will not pay the Agency for a non-responsive, frivolous response. Finally, there is no such thing under FOIA as a “partial response.” The request is overdue and the documents requested must be produced if they exist. As EPA’s action is not responsive to H&As FOIA request, please provide the records that are responsive to H&As FOIA request (i.e., records related to EPA’s decision to implement the Iowa League of Cities decision only in the 8th Circuit). If the Agency does not promptly identify the requested documents by the latest January 31, 2014, when it said it would be releasing the remaining responsive documents, then we will be forced to take this matter into court given the circumstances. If you have any questions regarding this request, please do not hesitate to contact this office so as to ensure that agency resources are conserved and only the necessary documents are reproduced. Sincerely, /s/ John C. Hall JOHN C. HALL Cc: Kevin Weiss
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Exhibit 13
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Exhibit 14
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Exhibit 15
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Exhibit 1
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November 26, 2013
The Honorable Gina McCarthy Administrator United States Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 RE: Need for Nationwide Consistency on Implementation of the 8th Circuit’s Iowa League of Cities Decision Dear Administrator McCarthy, As you are aware, on March 25, 2013, the 8th Circuit Court of Appeals issued a ruling in Iowa League of Cities v. EPA (Docket No. 11-3412) that vacated, on procedural and substantive grounds, the unadopted legislative rules set forth in two U.S. Environmental Protection Agency (EPA) guidance letters. The decision addressed EPA’s reinterpretation and enforcement of three key federal rules (bypass rule, Secondary Treatment rule and Water Quality-Based Permitting rule) that apply nationwide. Specifically, the Court held that EPA’s prohibition of bacteria mixing zones in primary contact recreation waters, regardless of the degree of possible health risks, unlawfully eliminated state discretion to utilize such mixing zones and, therefore, constituted a revised rule that did not go through the proper rulemaking procedures under the Administrative Procedure Act (APA). The Court also found that EPA’s blending prohibition, which restricted how municipalities could design facilities to address peak flow processing (thereby reducing CSO and SSO discharges or system backups), exceeded the Agency’s statutory authority under the Clean Water Act (CWA) and was inconsistent with both EPA’s secondary treatment rule and bypass rule (711 F.3d 844 (8th Cir. 2013)).
Case 1:14-cv-00808-JDB Document 1-3 Filed 05/15/14 Page 3 of 67 We understand that even though this decision came down more than seven months ago and was never stayed, clarification requests regarding the implementation of this decision have gone unanswered and EPA has yet to withdraw its prior objections to NPDES permits based on these now vacated policies. We also understand based on recent public comments from EPA officials that the Agency believes the decision to have binding legal effect only in the 8th circuit and that it will be applied to permittees elsewhere in the country on a case-by-case basis. We would note that Congress expressly granted the circuit courts original jurisdiction to review the NPDES regulations at issue under Section 509 of the CWA to ensure nationwide uniformity and that EPA regulations provide for only one circuit to render an opinion on a petition for review. Consequently, we believe there is no legal basis to assert that the 8th Circuit decision does not apply nationwide. In closing, the Agency’s attempt to modify nationally applicable NPDES rules without undertaking a rulemaking was struck down in no uncertain terms. The issues in this case have been causing delay and confusion for municipal entities throughout the country in addressing wet weather compliance and have greatly increased local costs, unnecessarily. For example, even by its own estimates, the municipal cost implication of implementing just one of these rule interpretations was estimated by EPA to exceed $150 billion nationwide, with similar extraordinary costs associated with the other provisions. It is time to put that confusion and conflict to rest. Accordingly, we respectfully request confirmation that EPA will apply the Iowa League of Cities decision uniformly across the country and so advise its Regions and delegated States. Sincerely,
Tom Cochran CEO and Executive Director The U.S. Conference of Mayors
Clarence E. Anthony Executive Director National League of Cities
Chuck Thompson Executive Director and General Council International Municipal Lawyers Association
Matthew D. Chase Executive Director National Association of Counties
Ken Kirk Executive Director National Association of Clean Water Agencies
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Exhibit 2
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Exhibit 3
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Hall & Associates
Telephone: (202) 463-1166
Suite 701 1620 I Street, NW Washington, DC 20006-4033 Web: http://www.hall-associates.com
Fax: (202) 463-4207
Reply to E-mail:
[email protected] October 25, 2013 VIA ONLINE FOIA SYSTEM National Freedom of Information Officer U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW (2822T) Washington, D.C. 20460 E-mail: [email protected] RE:
Freedom of Information Act Request for Records Associated with Iowa League of Cities v. EPA decision
To Whom This May Concern: This is a request for public records pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as implemented by the Environmental Protection Agency (“EPA”) at 40 C.F.R. Part 2. For purposes of this request, the definition of “records” includes, but is not limited to, documents, letters, memoranda, notes, and e-mail messages sent by EPA personnel from EPA accounts and any private accounts regarding EPA matters. On March 25, 2013, the Court of Appeals for the Eighth Circuit issued a decision in the Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) vacating the mixing zone rule contained in the June 2011 letter and the blending rule contained in the September 2011 letter. The court held that the bacteria mixing zone prohibition in primary contact recreation waters “eviscerate[d] state discretion” to utilize such mixing zones and, therefore, constituted a revised rule that did not go through proper rulemaking procedures. Id. at 874. Additionally, the court found EPA’s blending prohibition was both procedurally and substantively improper as it was “irreconcilable with both the secondary treatment rule and the bypass rule” (id. at 875) and “exceeds EPA’s statutory authority” under the CWA. Id. at 877. This request seeks any records containing the following: 1. Any communication between EPA Headquarters and EPA Regional offices discussing the impact of the Iowa League of Cities decision on permitting and enforcement actions;
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2. Any communication between EPA Regional offices and state entities discussing whether the Iowa League of Cities decision should be or should not be followed in future regulatory actions; and, 3. Any EPA legal or regulatory analysis regarding the effect of the Iowa League of Cities decision including whether the decision will be followed by all EPA Regions nationwide. Please contact the undersigned if the associated search and duplication costs are anticipated to exceed $250.00. Please duplicate the records that are responsive to this request and send them to the undersigned at the above address. If any requested records are withheld based upon any asserted privilege, please identify the basis for the non-disclosure. If the Agency lacks records responsible to a particular item, please note that in the response. If you have any questions regarding this request, please do not hesitate to contact this office so as to ensure that agency resources are conserved and only the necessary documents are reproduced. Sincerely, /s/ John C. Hall JOHN C. HALL
2
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Exhibit 4
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Hall & Associates
Telephone: (202) 463-1166
Suite 701 1620 I Street, NW Washington, DC 20006-4033 Web: http://www.hall-associates.com
Fax: (202) 463-4207
Reply to E-mail:
[email protected] November 18, 2013 VIA ONLINE FOIA SYSTEM National Freedom of Information Officer U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW (2822T) Washington, D.C. 20460 E-mail: [email protected] RE:
Freedom of Information Act Request for Records Associated with Iowa League of Cities v. EPA decision- Amended Request
To Whom This May Concern: On October 25, 2013, we submitted a FOIA request to Headquarters and to the ten EPA regional offices for records associated with the Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013). Specifically the request sought any records containing the following: 1. Any communication between EPA Headquarters and EPA Regional offices discussing the impact of the Iowa League of Cities decision on permitting and enforcement actions; 2. Any communication between EPA Regional offices and state entities discussing whether the Iowa League of Cities decision should be or should not be followed in future regulatory actions; and, 3. Any EPA legal or regulatory analysis regarding the effect of the Iowa League of Cities decision including whether the decision will be followed by all EPA Regions nationwide. As a number of the Regional Offices have indicated that Headquarters will consolidating these FOIA requests (although this has not been confirmed by Headquarters), we are submitting this amended FOIA request only to EPA Headquarters in anticipation of such consolidation. Amended request: Last week, EPA Headquarters personnel including Connie Bosma, Kevin Weiss, and Steven Neugeboren, met with EPA Region 7, the States within Region 7, and representatives from the
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regulatory community to discuss the implementation of the Iowa League of Cities decision. Therefore, we would like to amend our FOIA request to include all records to date, falling within the three categories specified above including documents regarding last week’s meeting between EPA Headquarters, EPA Region 7, the States, and the regulated community. As previously stated in the original FOIA request, for purposes of this request, the definition of “records” includes, but is not limited to, documents, letters, memoranda, notes, and e-mail messages sent by EPA personnel from EPA accounts and any private accounts regarding EPA matters. Additionally, please contact the undersigned if the associated search and duplication costs are anticipated to exceed $250.00. Please duplicate the records that are responsive to this request and send them to the undersigned at the above address. If any requested records are withheld based upon any asserted privilege, please identify the basis for the non-disclosure. If the Agency lacks records responsible to a particular item, please note that in the response. If you have any questions regarding this request, please do not hesitate to contact this office so as to ensure that agency resources are conserved and only the necessary documents are reproduced. Sincerely, /s/ John C. Hall JOHN C. HALL
2
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Exhibit 5
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Exhibit 6
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Hall & Associates
Telephone: (202) 463-1166
Suite 701 1620 I Street, NW Washington, DC 20006-4033 Web: http://www.hall-associates.com
Fax: (202) 463-4207
Reply to E-mail:
[email protected] December 2, 2013 USEPA Headquarters William Jefferson Clinton Building 1200 Pennsylvania Ave., N.W. Mail Code: 4203M Washington, D.C. 20460 RE:
Freedom of Information Act Request for Records Associated with Iowa League of Cities v. EPA decision- Amended Request
Dear Mr. Weiss: On November 21, 2013, EPA requested written assurance for payment regarding FOIA requests submitted by H&A on October 25, 2013, to Headquarters and to the ten EPA regional offices for records associated with the Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013). As Nancy Stoner, EPA Acting Assistant Administrator for Water, has announced EPA’s position that the Iowa League of Cities decision only applies in the 8th Circuit (i.e., the Agency will not being applying the decision nationwide), H&A would like to modify and narrow the October 25, 2013, FOIA requests as follows. Please provide only the following records: 1. Any legal or regulatory analysis or briefing materials prepared in support of the agency’s decision to only apply the Iowa League of Cities decision in the 8th Circuit; 2. Any notifications given to the Regional offices from EPA Headquarters regarding the agency’s aforementioned decision to only apply the Iowa League of Cities decision in the 8th Circuit; and, 3. Any documents explaining how peak flow processing (also known as “blending”) and bacteria mixing zones for CSO and stormwater discharges will be addressed in permitting and enforcement actions within the 8th Circuit versus outside of the 8th circuit. As previously stated in the original FOIA request, for purposes of this request, the definition of “records” includes, but is not limited to, documents, letters, memoranda, notes, and e-mail
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messages sent by EPA personnel from EPA accounts and any private accounts regarding EPA matters. Additionally, please contact the undersigned if the associated search and duplication costs are anticipated to exceed $250.00. Please duplicate the records that are responsive to this request and send them to the undersigned at the above address. If any requested records are withheld based upon any asserted privilege, please identify the basis for the non-disclosure. If the Agency lacks records responsible to a particular item, please note that in the response. If you have any questions regarding this request, please do not hesitate to contact this office so as to ensure that agency resources are conserved and only the necessary documents are reproduced. Sincerely, /s/ John C. Hall JOHN C. HALL
2
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Exhibit 7
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Exhibit 8
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)URP 7R &F 6XEMHFW 'DWH $WWDFKPHQWV
-RKQ+DOO :HLVV.HYLQ .HLVKD6HGODFHN %RVPD&RQQLH 5( 5HYLVHG:ULWWHQ$VVXUDQFHRI3D\PHQWIRU%OHQGLQJ)2,$ :HGQHVGD\'HFHPEHU 30 LPDJHSQJ
Kevin Please consider this email the official written confirmation. All the Regional FOIAs requests regarding the implementation of the Iowa League decision are hereby withdrawn. Thanks John John C. Hall Hall & Associates 1620 I Street, NW, Suite 701 Washington, DC 20006 Phone: 202-463-1166 Fax: 202-463-4207 E-Mail: [email protected] The information contained in this e-mail is confidential and intended only for use by the individual or entity named. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by replying to this e-mail and destroying the original e-mail and any attachments thereto.
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Exhibit 9
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Exhibit 10
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From: To: Cc: Subject: Date: Attachments:
Keisha Sedlacek Weiss, Kevin; John Hall Bosma, Connie RE: Revised Written Assurance of Payment for Blending FOIA Monday, December 16, 2013 10:21:03 AM image001.png
Kevin: We will agree to pay the estimated $1,073.25 for the records. However, we do find it inconceivable that with the limited scope of documents we are asking for and the fact that we have narrowed our request to only include Headquarters documents, that the cost has only dropped to $1,073.25 from the Agency’s original estimate of $3442.00. We do reserve our right to dispute the charges based upon the records we receive. Keisha
Keisha M. Sedlacek, Esq. Hall & Associates 1620 I Street, NW Suite 701 Washington, DC 20006 Ph.: 202.463.1166 Fax: 202.463.4207 E-Mail: [email protected] PRIVILEGED AND CONFIDENTIAL – ATTORNEY-CLIENT WORK PRODUCT The information contained in this e-mail is confidential and intended only for use by the individual or entity named. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by replying to this e-mail and destroying the original e-mail and any attachments thereto.
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Exhibit 11
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Case 1:14-cv-00808-JDB Document 1-3 Filed 05/15/14 Page 44 of 67 COST WORKSHEET FOR FOIA REQUEST # EPA-HQ-2014-000552 Fill Out Part 2 EVEN if requester was not billed. Please complete and return to Diane C. Jones, OW FOIA (4101M) with a copy of FOIA response letter, and Bill of Collection (if any).. 1.
Use this table to figure FOIA billable charges to requester
Costs:
Clerical Staff - $4.00/15 minutes Professional Staff - $7.00/15 minutes Manager= s Time - $10.25/15 minutes $.15/page (double-sided $.30)
Photocopies: Authentication: $25.00 No Fee Charged for < = $14.00 NEW: Bills sent between $14.01-25.00, no payment assurance required Written Assurance of payment from requester for amounts >$25.00, then billed
Time
Amount $
Task
29.25 hours
$ 861.25
Search
5 hours
$ 153.00
Review
10 copies
$ 1.50
# of Photocopies - ($.15/page - Color Copies Extra) $2.25 Cost of Disk/Mailer Computer System Time
N/A
Authentication
TOTAL
$1015 .75 Use this table to figure administrative costs to Agency.
2.
Administrative cost figured in one-minute increments x employee salary - FOR ALL EMPLOYEES INVOLVED IN RESPONDING TO FOIA. These costs NOT BILLED to requester. Time
Amount $
Task
30 minutes
$
14
Initially read FOIA
34.25 hours
$ 1,014.25
Search & Review
$ 1.50
Photocopying time/costs ($.15/page) Authentication Phone call(s) to REQUESTER
2 hours
$
56.00
Phone calls to FOIA Office, colleagues, attorneys
1 hour
$
28.00
Typing & proofing letter/envelope
1 hour
$
41.00
Proof & Sign FOIA + ALL Concurrences Other time spent on FOIA Computer Time/Programming Costs Maps/Disks/CD ROM, Photos, Etc. Costs
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TOTAL
$ 1,154.75
Preparer’s Name/Mail Code:_Kevin Weiss (4203M)
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Exhibit 12
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Hall & Associates
Telephone: (202) 463-1166
Suite 701 1620 I Street, NW Washington, DC 20006-4033 Web: http://www.hall-associates.com
Fax: (202) 463-4207
Reply to E-mail:
[email protected] January 14, 2014 USEPA Headquarters/FOIA Office William Jefferson Clinton Building 1200 Pennsylvania Ave., N.W. Mail Code: 4203M Washington, D.C. 20460 RE:
Freedom of Information Act Request EPA-HQ-2014-000552
Dear Ms. Nagle: After reviewing the Agency’s partial response to Hall & Associates (“H&A”) dated December 24, 2013 (“Partial Response”), it is clear the Agency conducted the wrong assessment. On November 13, 2013, EPA informed the public that the Iowa League of Cities decision did not apply outside the 8th Circuit. In our December 2, 2013, modified request, we asked the Agency to provide only the following records: 1. Any legal or regulatory analysis or briefing materials prepared in support of the agency’s decision to only apply the Iowa League of Cities decision in the 8th Circuit; 2. Any notifications given to the Regional offices from EPA Headquarters regarding the agency’s aforementioned decision to only apply the Iowa League of Cities decision in the 8th Circuit; and, 3. Any documents explaining how peak flow processing (also known as “blending”) and bacteria mixing zones for CSO and stormwater discharges will be addressed in permitting and enforcement actions within the 8th Circuit versus outside of the 8th circuit. None of the documents provided by the Agency in its Partial Response or withheld as predecisional are responsive to H&A’s FOIA request for records supporting EPA’s decision to apply the Iowa League of Cities decision only in the 8th Circuit. The first two documents related to a powerpoint presentation entitled “NPDES Litigation Update,” simply summarized the Court’s decision and do not pertain to the final decision rendered by the Agency (i.e., part 1 of the request). The emails provided state that the Region will be discussing the decision at a meeting and that no new agency statements regarding the decision have been released. Once
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again, these provide no notification of when the Agency’s decision was actually made (i.e., part 2 of the request) on how to implement the decision (i.e., part 3 of the request). Finally, the desk statement summarizes the decision and provides one open-ended statement that the Agency is “reviewing the decision and discussing potential next steps with the Department of Justice.” It is especially confusing as to why the Agency provided the desk statement as the document was released the day after the decision was issued and therefore, could not possibly (and does not) provide the insight into the Agency’s position that the decision only applies in the 8th Circuit as announced by Nancy Stoner, EPA Acting Assistant Administrator for Water, on November 13, 2013. Regardless, none of the documents provided by the Agency in its Partial Response are responsive to H&As FOIA request nor is it apparent that the documents withheld were related to the actual request. Moreover, EPA has charged H&A a fee of $1,015.75 for conducting a search and review of records which clearly do not respond to H&As FOIA request. H&A is more than willing to pay for the Agency’s review, as evidenced by the payment assurance given by H&A, so long as the review is for the records actually requested by H&A. Here, clearly, that is not the case and H&A will not pay the Agency for a non-responsive, frivolous response. Finally, there is no such thing under FOIA as a “partial response.” The request is overdue and the documents requested must be produced if they exist. As EPA’s action is not responsive to H&As FOIA request, please provide the records that are responsive to H&As FOIA request (i.e., records related to EPA’s decision to implement the Iowa League of Cities decision only in the 8th Circuit). If the Agency does not promptly identify the requested documents by the latest January 31, 2014, when it said it would be releasing the remaining responsive documents, then we will be forced to take this matter into court given the circumstances. If you have any questions regarding this request, please do not hesitate to contact this office so as to ensure that agency resources are conserved and only the necessary documents are reproduced. Sincerely, /s/ John C. Hall JOHN C. HALL Cc: Kevin Weiss
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Exhibit 13
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Exhibit 14
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Exhibit 15
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