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granting "Defendants leave to file rebuttal declarations because they had not had an opportunity to respond to the extra record materials Defendants' response was essential to [its] review of the underlying motions."
Summary of this case from Sierra Club, Inc. v. BosworthOpinion
No. C 03-3926 SBA.
September 10, 2004
This matter comes before the Court on the motion for summary judgment, filed by defendants United States Department of Energy ("DOE"), National Nuclear Security Administration ("NNSA"), Lawrence Livermore National Laboratory ("LLNL"), and Los Altos National Laboratory ("LANL") (collectively, "Defendants"), and the motion of Tri Valley Cares, et al., ("Plaintiffs") for summary judgment or in the alternative for partial summary judgment. Having read and considered the arguments presented by the parties in their moving papers, the Court finds this matter appropriate for disposition without a hearing. The Court hereby GRANTS Defendants' motion for summary judgment and DENIES Plaintiff's motion for summary judgment or in the alternative partial summary judgment.
BACKGROUND
A. Factual Background
The National Nuclear Security Administration (NNSA) of the Department of Energy (DOE) is responsible for national programs to address biological, chemical, and nuclear threats to the country. Lawrence Livermore National Laboratory (LLNL) hosts NNSA research in support of this goal. This research requires that the laboratory contain infectious agents that pose risks to human health. See LLNL AR1 at ii-iii.
Citations to LLNL AR refer to the portion of the case's administrative record concerning the Lawrence Livermore National Laboratory, which begins with the Environmental Assessment (EA) performed by the DOE.
The Center for Disease Control (CDC) and the National Institutes of Health (NIH) maintain guidelines — "accepted as the international `gold standard' for safely conducting microbiological research," according to the CDC — that define four distinct safety levels for facilities that conduct biological research. See id. at A-2. These levels, known as Biosafety Levels (BSL) 1 through 4, require increasingly rigorous safeguards to protect laboratory personnel and the environment. Id. The CDC and the NIH assign BSLs to individual biological agents. Id. at 1 n. 2.
DOE does not currently operate any facilities beyond BSL-2, but the agency has determined that "key elements" of its research agenda require the containment standards of a BSL-3 facility. Id. at ii. Though there are more than 250 BSL-3 facilities within the United States, including facilities at the San Francisco and Davis campuses of the University of California, the agency has determined that these facilities have already been committed to other projects or are otherwise unsuitable for its needs. Id. at ii, C-9. DOE therefore proposes the assembly of a one-story, 1500 square-foot BSL-3 facility at LLNL with an operational design life of 30 years. Id. at ii. DOE also discusses several design alternatives, including one in which no new BSL-3 facility is constructed; this "No Action Alternative" would "not meet the NNSA's identified purpose and need for action." Id. at iii.
Pursuant to the National Environmental Policy Act of 1969 (NEPA), the DOE prepared an Environmental Assessment (EA), the purpose of which was to determine whether to prepare a full Environmental Impact Statement (EIS) or to issue a Finding of No Significant Impact (FONSI). The DOE first issued a draft EA on July 24, 2002; this was followed by a public comment period that ended on September 7, 2002. In December 2002, the DOE issued a final EA. Based on this EA, the DOE then chose to issue a FONSI and to authorize construction of a BSL-3 facility at LLNL.
Plaintiffs are: several individuals who live near LLNL; an organization which represents their interests and of which they are members; and several other parties. Plaintiffs challenge the DOE's FONSI (and its authorization to construct the BSL-3 facility) under NEPA, 42 U.S.C. §§ 4321- 4370d, arguing that the EA is insufficient and that it ignores numerous dangers and threats. Plaintiffs also challenge the DOE's alleged failures to: (1) file a programmatic EIS (PEIS) pursuant to the Council of Environmental Quality's NEPA regulations, 40 C.F.R. § 1508.25, for DOE's nationwide Chemical and Biological National Security Program (CBNP); (2) file a site-wide EIS for LLNL; and (3) respond to requests issued by Plaintiffs under the Freedom of Information Act (FOIA), 5. U.S.C. § 552.
B. Procedural Background
In a May 2004 Order, this Court considered Defendants' motion to strike certain declarations Plaintiffs submitted in support or their motion for summary judgment and their opposition to Defendants' motion for summary judgment. The Court granted the motion in part, and struck most of the declarations as being extra-record materials. Generally, in reviewing an administrative decision, this Court may only consider information that was available at the time the Agency made its decision. Airport Cmty. Coalition v. Graves, 280 F. Supp. 2d 1207, 1213 (W.D.Wash. 2003) (noting that consideration of "new information represents `Monday morning quarter backing.' If the court were to consider this new information in an arbitrary and capricious analysis, the court would effectively transform that analysis into de novo review, a level of review for which the court is not authorized.")
The Court, however, did allow certain declarations (or portions of them), based on the Ninth Circuit's rule that there are four exceptions in which a court may consider extra-record materials in APA cases. Those four exceptions are: (1) to determine whether the agency has considered all relevant factors and has explained its decision; (2) when the agency has relied upon documents or materials not included in the record; (3) when necessary to explain technical terms or complex matters; and (4) when Plaintiffs make a showing of agency bad faith. Southwest Center for Biological Diveristy v. United States Forest Service, 100 F.3d 1443, 1450 (9th Cir. 1996).
1. Declarations Struck by the Court
The Court struck the following declarations in whole:
(1) the Declaration of Colin King;
(2) the Declaration of Susan Wright;
(3) the Declaration of Mark Wheelis;
(4) the Declaration of Scott Ritter;
(5) the Declaration of Marylia Kelley;
(6) the Declaration of Peter Strauss;
(7) the Declaration of Dolores Gallego;
(8) the Declaration of Peter Stockton.
2. Declarations or Portions of Declarations Admitted by the Court
The Court admitted the following declarations to assist it in determining whether DOE considered all the relevant factors in issuing the EA:
(1) only Paragraphs 1 and 3 of the Declaration of James Coughlan, to establish Plaintiffs' standing;
(2) those portions of the Declaration of Matthew Zipoli referencing a report on LLNL security entitled Inspection of Lawrence Livermore National Laboratory Protective Force and Special Response Team (the "Report"), and those portions of the declaration referencing his personal observations as a Security Officer at LLNL between January 1999 and September 2001;
The Court struck from Mr. Zipoli's Declaration statements that constituted legal conclusions and newspaper articles from Spring 2003 because the articles could not have been considered by DOE during the decision making process; they post-dated it.
(3) the Declaration of Terrell Watt regarding safety issues;
(4) the Declaration of Marion Fulk regarding HEPA filters;
(5) the Declaration of Robert Curry, Paragraphs 6 and 7, in which Professor Curry provides facts regarding the proximity of fault lines;
(6) the Declaration of Edward Hammond, but only those paragraphs that provide a list of BSL-3 labs that are already operating or are proposed by other entities;
(7) the Declaration of Matthew McKinzie regarding accidental release analysis based on a drastic event such as an earthquake.
3. Rebuttal
In the May 2004 Order, the Court granted Defendants leave to file rebuttal declarations because they had not had an opportunity to respond to the extra record materials. Defendants timely filed the declarations. Because "[a] satisfactory explanation of agency action is essential for adequate judicial review. . . . ." Asarco, Inc. v. U.S. Environmental Protection Agency, 616 F.2d 1153, 1160 (9th Cir. 1980), Defendants' response was essential to this Court's review of the underlying motions.
PROCEDURAL ISSUES
The Court has set forth in detail its May 2004 Order for two reasons. First, in reviewing Plaintiffs' motion for summary judgment and Plaintiffs' opposition to Defendants' motion for summary judgment, the Court observes that some of Plaintiffs' arguments rely on the stricken declarations. Having stricken those declarations for the reasons set forth in the May 2004 Order, the Court will not consider them in determining Plaintiffs' motion, nor Defendants'. They are not part of the record.
Second, on June 30, 2004, Plaintiffs submitted a motion for leave to file reply declarations to Defendants' rebuttal declarations. Plaintiffs were already given one bite at the proverbial apple to submit the extra-record declarations and the Court granted Defendants an opportunity to reply because they had not had an opportunity to respond. Plaintiffs' purported "reply" declarations are nothing more than a perpetual battle of the experts, a battle in which this Court will not participate. See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989). As such, they are not appropriate for the Court's consideration. The motion for leave to file reply declarations is DENIED.
ADMINISTRATIVE REVIEW UNDER THE APA
A. Standard of Review
Because NEPA does not create a private right of action, Plaintiffs' challenges to DOE action is governed by the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. See Lujan v. National Wildlife Federation, 497 U.S. 871, 882 (1989). The APA provides that a "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702.
The APA limits the scope of judicial review of agency actions. In general, a court may not set aside an agency action unless that action was "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). In reviewing agency action, the Court must be "highly deferential" to the agency; the Court's review is "narrow," and it "may not set aside agency action as arbitrary or capricious unless there is no rational basis for the action." Friends of the Earth v. Hintz, 800 F.2d 822, 831 (9th Cir. 1980).
In a NEPA challenge, a court cannot "substitute [its] judgment for that of the agency concerning the wisdom or prudence of a proposed action." Laguna Greenbelt, Inc. v. United States Dep't of Transp., 42 F.3d 517, 523 (1994). In this case, the Court's only role is to review the agency's EA to ensure that the DOE gave the "required `hard look'" at the environmental consequences of its decisions. See Kettle Range Conservation Group v. United States Forest Serv., 147 F.3d 1155, 1157 (9th Cir. 1998). A court's "scope of review does not enable [it] to decide whether [it] would have given the same hard look and reached the same conclusion." Id.
"[A]n agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh v. 490 U.S. at 378. See also Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985) ("[N]or does NEPA require us to resolve disagreements among various scientists as to methodology"); Life of Land v. Brinegar, 485 F.2d 460, 472 ("disagreement among experts will not serve to invalidate an EIS"); Webb v. Gorsuch, 699 F.2d 157, 160 (4th Cir. 1983) ("When there is conflicting expert opinion, it is for the administrative agency and not the courts to resolve the conflict.").
B. Plaintiffs' challenge of the EA for LLNL
Plaintiffs challenge, on several grounds, the DOE's EA for the proposed BSL-3 facility at LLNL and the DOE's decision to issue a FONSI for this facility.
First, Plaintiffs argue that the EA inadequately addresses threats arising from (a) the DOE's historical safety record; (b) transportation of biological agents to and from the proposed facility; (c) damage to the community from "abnormal events," such as earthquakes and terrorist attacks, that could trigger a release of pathogens; and (d) deficiencies in the lab's HEPA-filtration systems.
Second, Plaintiffs argue that the EA inadequately addresses the precedential effects of the proposed facility.
Third, Plaintiffs argue that the EA inadequately addresses the controversy surrounding the proposed facility.
Fourth, Plaintiffs argue that the EA inadequately addresses the cumulative effects of the proposed facility.
1. Threats posed by the proposed BSL-3 facility a. DOE's safety record generally, and DOE's ability to ensure the safety of routine operations at LLNL
Plaintiffs argue that DOE in general and LLNL in particular have "poor safety, security, and compliance records, rendering a presumption of full compliance unreasonable." Pls.' SJ Br. at 5. To support this proposition, Plaintiffs cite several letters sent to DOE during the EA's public comment period. See id. The EA, however, does consider the historical record of CDC-registered laboratories since 1974 and the safety record of LLNL over the past 20 years. The EA cites several facts about this historical record:
• "Based on information provided by the LLNL [Biology and Biotechnology Research Program] Assurance and Facility Manager, LLNL has operated BSL-1- and BSL-2 equivalent laboratories for at least the last 20 years without any infections associated with their operation." LLNL AR1 at 41.
• "[T]he LLNL BBRP Assurance and Facility Manager reviewed available Occurrence Reporting and Processing System (ORPS) Reports (from the past 10 years)." Id.
• "[T]here were no unintentional releases to the environment or to the public associated with the LLNL biological research laboratories." Id. That is, "LLNL has operated BSL-1- and BSL-2-equivalent laboratories for the last 20 years without any . . . unintentional releases to the environment or to the public." Id. at C-3.
Although the EA acknowledges anecdotal reports of infrequent safety and health issues associated with BSL-3 laboratories in general, it determines that BSL-3 and similar facilities do not normally or regularly cause "disease-related health effects [for] workers, their families, or the general public." See LLNL AR1 at 41. This determination, which cites to specific facts, has a reasonable basis.
The EA also considers the experience of the Biological Defense Research Program (BDRP) facilities operated by the U.S. Department of the Army. See LLNL AR1 at 40-41. One letter cited by Plaintiffs questions the applicability of the Army's historical experience to that of the DOE: "There is no explanation for why we should believe that the safety culture at the Army laboratories is the same as that at the Department of Energy." LLNL AR1 at C-62. However, it is for the DOE and not this Court to decide the appropriate inferences to be drawn from a reasonable analogy. Laguna Greenbelt, 42 F.3d at 523. The EA's consideration of the historical safety records of similar, non-DOE facilities is not arbitrary or capricious.
Moreover, the EA responds directly to the comments submitted during the comment period and notes that while accidents are unavoidable, "LLNL has had an infrequent history of incidents and none has resulted in a significant impact to the public or the environment." LLNL AR at C-3. Plaintiffs have not successfully undermined the reasonableness of this assessment.
Even if the DOE has encountered historical problems at other facilities, the EA documents DOE's attempts to address them. For instance, the administrative record includes the EA for a proposed BSL-3 facility at the Los Alamos National Laboratory (LANL), which includes a report from the DOE Inspector General documenting "responsive" "corrective actions" taken by DOE to address earlier problems. LLNL AR37 at B-35. See generally id. at B-1 through B-40.
Plaintiffs' arguments may also be taken to suggest that DOE will, in bad faith, choose not to follow the safety and security procedures outlined in the EA. However, administrative agencies are entitled to a presumption that "they will act properly and according to law." FCC v. Schreiber, 381 U.S. 279, 296 (1965). Moreover, the EA notes that the Center for Disease Control (CDC) is authorized to inspect all BSL-3 facilities periodically, and DOE's operating contract with the University of California requires that LLNL implement the CDC/NIH guidelines. See id. at C-4, C-9. Thus, not only must the Court presume that the DOE will act in good faith, but the record shows that third parties can intervene to ensure that DOE complies.
b. Transportation of BSL-3 agents
Plaintiffs argue that the EA "fails entirely to analyze" the risks that arise from the need to transport hazardous biological materials to the proposed BSL-3 facility. Pl. SJ Br. at 5. However, the EA notes the following considerations:
• Deliveries of biological materials and infectious agents can be shipped to the BSL-3 facility only by authorized entities such as commercial package-delivery services and the U.S. Postal Service. LLNL AR1 at 22.
• All incoming packages that contain infectious agents will be required to meet Department of Transportation (DOT) guidelines, 42 C.F.R. 72. Samples will be "double- or triple-contained." Id.
• Interstate shipment and import of biomedical materials is subject to the requirements of the U.S. Public Health Service Foreign Quarantine. Id. See also 42 C.F.R. 71.
• The U.S. Department of Agriculture regulates the interstate shipment and import of "animal and plant pathogens." Id. See also 7 C.F.R. 330, 9 C.F.R. 92.
• Individual shipments of samples will typically be small; "the maximum probable sample size would be 15 milliliters," and the typical one will be smaller. Id.
The EA thus outlines detailed regulations and procedures that govern the transportation of agents to be shipped to the proposed facility.
Moreover, the EA notes the vast quantities of hazardous materials currently shipped within the United States and the low risk to the public from such shipments. Id. at 54. In addition, there are over 250 BSL-3 facilities already operating in the United States. Based on this data, the EA concludes that "the addition of milliliter-quantity samples shipped to and from the BSL-3 facility [at LLNL] . . . would not be expected to change the overall incidence of risk of transportation accident."
Similarly, the EA responds to the letters received during the public-comment period as follows:
Federal and commercial carriers have been transporting appropriately packaged biological samples for many years. . . . Hospitals, laboratories, schools, universities, and teaching facilities engage in the transport of biological samples in large numbers every day. Any increase in the risk of accident or terrorist attack because of shipments associated with the proposed BSL-3 facility at LLNL would be negligible.
LLNL AR1 at C-14.
Plaintiffs also contend that the EA should "describe and evaluate" — not merely cite — protective regulations concerning the transportation of biological agents. That is, Plaintiffs appear to attempt to distinguish the "actual environmental threat" from the threat permitted by regulations. Plaintiffs cite Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 1985) for this proposition. This case appears to be inapposite, however. The First Circuit in Marsh rejected a defendant's reliance on "local, state, and Federal regulations" only because the relevant regulations were insufficient to prevent the type of damage NEPA was intended to prevent; it did not reject the reliance on regulations simply because they were regulations.
Given that the EA describes comprehensive regulations and discusses the additional impact of the proposed facility on the nation's transportation infrastructure, the Court finds that the DOE has taken a "hard look" at the transportation risks associated with the proposed BSL-3 facility. Kettle Range Conservation Group 147 F.3d at 1157.
c. Damage to the community from "abnormal events," such as earthquakes and terrorist attacks, that could trigger a release of pathogens
Plaintiffs argue that the EA's analysis of the threat to the environment and to the health of the surrounding communities from an accidental release of hazardous material from the proposed BSL-3 facility was inadequate in four respects. First, Plaintiffs dispute the EA's analysis of the consequences of accidental release in general. Second, Plaintiffs dispute the EA's analysis of the damage to the facility from earthquakes. Third, Plaintiffs dispute the EA's analysis of the risks of terrorist attacks, sabotage, and other matters of security. Fourth, Plaintiffs raise new accident scenarios that they believe the EA failed to consider.
I. The consequences of accidental release
The EA includes a model of an "accident scenario" premised on several assumptions, such as the time of day of the accidental release, the wind speed during the accidental release, and so forth. See LLNL AR1 at B-9 to B-11. Plaintiff argues that this model is inadequate because: (a) it fails to consider structural breaches; (b) it is based on a non-representative biological agent; and (c) it fails to account for nearby freeways.
1. Failure to analyze structural breaches
First, Plaintiffs note that the modeled scenario assumes that any accidental release of hazardous materials would first pass through a HEPA filter. See Pls.' Consol Opp at 5, LLNL AR1 at B-11. Plaintiffs argue that such an assumption fails to consider the possibility that the proposed facility's walls could be breached; a breach might allow hazardous materials to escape the facility without passing through any filter. However, the EA explains the context of the hypothetical "accident scenario" as follows:
[A] release to the environment from a catastrophic event would require several simultaneous conditions to coexist: a worker is transferring a quantity of infectious material when the catastrophic event occurs; the containers aren't properly sealed; the entire set of containers is dropped; the containers break open; and the catastrophic event simultaneously causes a structural breach in the BSL-3 containment walls.
LLNL AR1 at 50. The EA also notes that "according to the U.S. Army . . . the likelihood of such catastrophic occurrences is too small to be considered as reasonably foreseeable. No such event has occurred in the more than 50 years in which the military has been conducting biological defense research activities." Id.
The Court finds that the DOE indeed took the requisite "hard look" at the possibility of structural breach. See Kettle Range Conservation, 147 F.3d at 1157. There is nothing arbitrary or capricious in the finding that accidental releases of biological materials will be filtered. In coming to this conclusion, the EA noted the circumstances under which filtering would fail, and also noted that no such event had occurred in over half a century .
2. Choice of biological agent
Plaintiffs also argue that the model's use of Coxiella burnetti (Q-fever) as the biological agent released in the "accident scenario" is inappropriate because "direct transmission of Q-fever from person to person is rare." Pls.' Consol.Op at 5. However, the EA claims to have chosen Q-fever because it is "highly durable, infectious, and transmissible, and has excellent environmental survivability." LLNL AR1 at 51. Moreover, the EA claims that other microorganisms were considered but rejected either because: (a) they pose less of a risk to human health; or (b) because they are less resilient in the environment. Id. Finally, the EA notes that not only the DOE, but the CDC, has decided that Q-fever "probably represents the greatest risk of laboratory infection." LLNL AR1 at B-11. The Court is satisfied with this analysis; the disagreement about what organism to use is a disagreement among experts, and, as discussed supra, "an agency must have discretion to rely on the reasonable opinions of its own qualified experts." Marsh v. Oregon Natural Res. Council, 490 U.S. at 378.
Plaintiffs have not given this Court any reason to find that the choice of Q-fever was arbitrary, capricious, or otherwise disingenuous.
3. Proximity of Interstate Highway 580
The Watt declaration notes the increasing human population of the San Francisco Bay Area. It also claims that Interstate Highway 580 is one of California's busiest freeways, that its proximity to the proposed BSL-3 facility at LLNL could expose tens of thousands of travelers to potentially lethal dosages of hazardous materials, and that the EA ignores some related consequences of an accidental release of hazardous materials. See Watt Declaration ¶¶ 5-8. These conclusions are based on an analysis model known as Hazard Prediction and Assessment Capability (HPAC), which is used to predict the health risk that would result from damage to a facility that stores or produces biological weapons.
In an administrative review, this Court cannot choose among the detailed parameters provided by competing experts. Marsh v. Oregon Natural Res. Council, 490 U.S. at 378 ("[A]n agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive."); Webb v. Gorsuch, 699 F.2d. at 160 ("When there is conflicting expert opinion, it is for the administrative agency and not the courts to resolve the conflict."). The only question for this Court is whether the EA should have included an assessment of potential damage using the HPAC modeling technique.
Defendants submitted the declarations by Ron Durling and Robert Hull to explain why the HPAC model is not appropriate. The HPAC model assumes that pathogens are weaponized. Mr. Durling claims that the type of anthrax to be used in the proposed BSL-3 facility "simply will not behave like weaponized material, and thus is not accurately modeled by HPAC." Durling Declaration ¶ 4. Mr. Hull also notes that the EA considered many accident-initiating threats and that the DOE performed an "extensive literature search" and discussed historical data about accidental releases with the CDC, NIH, and the Army. Hull Declaration ¶ 10 (citing LLNL AR1 at 49-50, B-7 to B-9, C-9 to C-10).
Given that it is within DOE's discretion to rely on the opinions of its experts, and that the EA reflects that DOE considered the sound reasoning of several experts regarding accidental releases, the Court finds that DOE was not arbitrary or capricious in choosing not to use the HPAC model.
4. Other Accident Scenarios
Plaintiffs also suggest that the EA's "accident scenario" overlooks the possibility that a laboratory worker will leave the facility without realizing that he or she had been exposed. However, the EA and the data it cites consider such possibilities, at least indirectly. For instance, the EA notes that laboratory workers will be vaccinated against Q-fever. See LLNL AR1 at B-11.
Moreover, Plaintiffs cannot impugn the EA's analysis by introducing new speculative disaster scenarios. The EA must be evaluated based on information and analysis within the record. See, e.g., Florida Power Light Co. v. Lorion, 470 U.S. 729, 743 (1985) ("The focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.") Plaintiffs cite no adequate basis for their argument that the EA overlooked the possibility that an infected worker would spread infections to others; instead, they cite only LLNL AR17 at 3-5, a CDC report that discusses mass infection of the public by terrorists who release biological agents covertly. The analogy between a release of pathogens by terrorists and the danger posed by an unwitting laboratory worker is too tenuous to substantiate Plaintiffs' argument.
ii. Damage to the facility from earthquakes
The previous section considered the EA's analysis of the general consequences of an accidental release of hazardous materials. A separate question is whether the EA properly considers particular threats that increase the likelihood of such releases. This section considers the particular risk from seismic activity. As discussed supra, even if the EA does not properly account for the likelihood of accidents, it properly accounts for the consequences of such accidents and finds these consequences to be minimal.
Plaintiffs rely largely on the Curry declaration, most of which has been stricken pursuant to the Court's May Order. After eliminating arguments that depend only on the stricken portion of the Curry declaration, Plaintiff's remaining arguments are that: (a) the EA improperly estimates the ground motion that can be "reasonably expected"; and (b) that the EA improperly rests on the incorrect assessment that there are no "active faults . . . in proximity to the location of the proposed facility." See LLNL AR1 at 36.
The first of these arguments amounts merely to a disagreement among experts; and the Court must defer to DOE's choice of experts. Marsh v. Oregon Natural Res. Council, 490 U.S. at 378. Indeed, the Court previously found that Mr. Curry's challenge to the EA's estimates of ground motion were "simply contrary opinions" and were thus inadmissible in a review under the APA.
The second of these arguments depends on factual assertions in the Curry declaration. The Defendants respond to these factual assertions with a declaration of Dr. Madhu Kamath, the principal structural engineer for LLNL's Plant Engineering Department. The Kamath declaration disputes Dr. Curry's factual assertions; defends the truth of the EA's statement that there are no "active faults . . . in proximity to the location of the proposed facility" by noting that the "fault zones" delineated by the California State Geologist and shown by the EA's map, LLNL AR1 at 37, do not extend into the LLNL site; and notes that LLNL AR1 at C-10 describes the DOE standard governing the construction of the proposed facility. Plaintiffs have not demonstrated that this DOE standard, or the process used by the DOE generally in evaluating earthquakes, is arbitrary or capricious.
iii. Terrorist attacks, sabotage, and other matters of security 1. The threat of terrorism
Plaintiffs allege that the EA fails to analyze the proposed facility's vulnerability to terrorist attacks, particularly those that involve trucks (as in Oklahoma City) or airplanes (as on September 11, 2001). The EA admits that it does not describe the potential results of terrorist attacks. See LLNL AR1 at C-12.
Defendants note that the "accident scenario," discussed in the foregoing analysis, is applicable to all releases, irrespective of their cause. Threats from truck- or airplane-based terrorism do not, according to the EA, have different dispersal patterns from those associated with fires or earthquakes. See LLNL AR1 at C-13. Plaintiffs have given the Court no reason to question this statement — and they have certainly not demonstrated that relying on it would be arbitrary and capricious. Moreover, Defendants note that the EA explicitly considers "explosions and airplane crashes" in general and finds that such events may actually "reduce the consequences of microbiological material releases" because heat, fire, sunlight, and wind can render hazardous biological materials innocuous. See LLNL AR1 at 49.
2. LLNL's security officers
Plaintiffs argue that LLNL's security is "grossly inadequate." Pl.'s Motion at 3. To support this contention, they introduce the declaration of Matthew Zipoli, a security officer who has worked at LLNL.
The Zipoli declaration cites several instances and practices that suggest poor standards of security at LLNL. For instance, Mr. Zipoli claims that security-officer trainees were encouraged by instructors to cheat during DOE performance examinations, that officers receive inadequate training, and that security procedures are sometimes rushed or generally inadequate. See Zipoli Declaration ¶¶ 5-12. Mr. Zipoli also cites a DOE Inspector General report from December, 2001; this report describes inadequate security practices and staffing deficiencies. Zipoli Declaration ¶ 13.
Defendants respond with a declaration of Michel Dahlstrom, LLNL's Principal Security Administrator. This declaration (a) questions the basis for some of Mr. Zipoli's observations; (b) directly contradicts others; and (c) claims that many other observations do not pertain directly to the security of the proposed BSL-3 facility. For instance, the Dahlstrom declaration makes the following claims:
(a) Mr. Zipoli "would not have been in a position" to determine whether the reassignment of officers — a fact Mr. Zipoli notes in his declaration — would compromise the overall security of LLNL. Dahlstrom Declaration ¶ 5(g).
(b) Mr. Zipoli's claims concerning cheating have not been "validated by any DOE reviews over the past four years." Id. ¶ 5(b).
The Dahlstrom declaration has two paragraphs numbered "5." Citations in this Order are to the one that appears first in the declaration.
The Dahlstrom declaration also notes that the findings of the DOE Inspector General's report have been addressed:
[7 of 8 findings] have been closed and validated by the NNSA Livermore Site Office. The eighth has been addressed and is awaiting closure at this moment. DOE security evaluation subsequent to the 2001 IG Report rated LLNL's security as "effective performance," the highest rating that can be received.
Id. ¶ 5(I).
The only question for the Court is whether the EA properly considered the security arrangements for the proposed BSL-3 facility. The Court admitted the Zipoli declaration not because it attempts to impugn DOE's competence generally, but because it could help the Court determine whether the EA appropriately considered the security information available to it — including perhaps any historical security failures that have occurred at LLNL.
The EA does not ignore the physical security of the LLNL buildings. While the EA notes that a security analysis will be conducted during the "project planning stage," it describes in detail the procedures according to which such plans will be developed and the regulations that will be followed:
At the time that the EA issued, LLNL was not yet at the project planning stage.
As in all facilities managed at LLNL, security in the proposed facility would be maintained by limiting access to only authorized DOE-badged personnel. Employee qualifications and training requirements are described in CDC-NIH guidelines . . . along with a discussion of appropriate management of security concerns.
LLNL AR1 at 17.
Moreover, to the extent that security problems at LLNL represent a threat of large-scale release of biological contaminants, the broad "accident scenario" considered by the EA and discussed supra is applicable to any accidental release of hazardous materials, whether caused by natural disaster, accident, terrorist attack or sabotage. LLNL AR1 at 41, C-13. The EA further notes that the "uncertainty of available and viable microorganisms" makes LLNL an unlikely target for the theft of hazardous materials. LLNL AR1 at C-13.
In view of this analysis, the Court finds that Plaintiffs have not shown that the EA was arbitrary and capricious in its consideration of the environmental impact of physical-security issues at LLNL.
d. Problems with HEPA filtration
Plaintiffs argue that the EA's analysis overestimates the protective value of High Efficiency Particulate Air (HEPA) filters. HEPA filters are made from fiber materials and are designed to prevent the passage of 99.97% of particles of a specific size that hit the surface of the filters.
Plaintiffs argue, based on the declaration of an expert, that the EA's reliance on HEPA filters is misplaced. The expert, Marion Fulk, lists several particular problems with HEPA filters:
• HEPA filters are ineffective at capturing some dangerous organisms. Fulk Declaration ¶¶ 15-21.
• HEPA filters are prone to failure. In a survey of DOE facilities, 12% of a particular kind of HEPA filter were found to fail. Id. ¶ 13.
• Lab conditions leading to variations in air pressure, activation of fire-safety sprinklers, or the presence of heat, smoke, or fire can accelerate the failure of HEPA filters. Id. ¶¶ 13, 23.
• In the past, HEPA filters at LLNL have remained unchanged for more than 25 years. Id. ¶ 26.
However, despite having presented the opinions of a recognized expert, Plaintiffs have not established that the EA's analysis of HEPA filters was arbitrary or capricious. As with the other concerns raised by Plaintiffs, the question for this Court is not whether HEPA filters are reliable; the question is only whether the EA adequately analyzes the reliability of HEPA filters. The EA considers the particular problems with HEPA filters that the Fulk declaration notes, and it makes the following claims about HEPA filters at the proposed BSL-3 facility:
• HEPA filters will be tested annually and replaced if necessary. LLNL AR1 at 43.
• Under the conditions that would prevail at the proposed BSL-3 facility, "there is no expectation that the HEPA filters would become moisture-saturated or torn — the two major reasons for HEPA filter failures." Id.
• Even if biological agents pass through HEPA filters, they are prone to destruction ("generally within minutes") by exposure to environmental factors such as UV light, dehydration, temperature, and oxygen. Id.
• In June 1999, LLNL adopted a policy requiring HEPA filters to be replaced within 10 years (or sooner under particular conditions). Id. at C-11.
• HEPA filters will be installed according to CDC/NIH criteria. Id.
• HEPA filters will be tested according to NSF standards. Id. at C-11 to C-12.
Even though the Fulk Declaration may have provided persuasive facts and opinions, the declaration does not undermine the reasonableness of the EA's assessment and plan. Thus, at most, Plaintiffs have noted a disagreement among experts, but as noted supra, "an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh, 490 U.S. at 378.
2. Precedential effects
Before declining to issue an EIS, an agency must consider the extent to which a proposed action "may establish a precedent for future actions with significant effects" and whether it "represents a decision in principle about a future consideration." 40 C.F.R. 1508.27(b)(6). The Ninth Circuit has held that this regulation is designed to "avoid the thoughtless setting in motion of a `chain of bureaucratic commitment that will become progressively harder to undo the longer it continues." Presidio Golf Club v. National Park Serv., 155 F.3d 1153, 1162 (9th Cir. 1998).
Plaintiffs claim that the EA inadequately considers the precedential effects of the proposed BSL-3 laboratory — the first such laboratory at a DOE facility. Potential precedential effects fall into two chief categories:
(1) the operation of a BSL-3 facility at LLNL, a nuclear-research facility, could encourage other nations to conduct biological research at nuclear facilities, leading to the risk of proliferation of weapons of mass destruction; and
(2) the operation of a BSL-3 facility at LLNL could encourage new similar facilities within the United States.
With respect to the first of these claims, Plaintiffs' argument fails for three reasons. First, the suggestion that the BSL-3 facility will provoke other nations into building their own facilities depends on a causal connection that is too speculative and remote. See No Gwen Alliance, Inc. v. Aldridge, 855 F.2d 1380, 1386 (9th Cir. 1988) (holding that an EA need not discuss speculative results like an increased probability of nuclear war); Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 (9th Cir. 1980) ("an impact statement need not discuss remote and highly speculative consequences") (citing Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir. 1974)). Second, as the Supreme Court has observed, the increased risk of an occurrence is not an impact on the environment under NEPA. Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 775 (1983) (emphasis in the original). Third, the policy of foreign nations regarding weapons development is not an impact on the environment. No GWEN Alliance v. Aldridge, 855 F.2d 1380, 1386 (9th Cir. 1988) (holding that pursuant to NEPA an agency is not required to consider speculation about how United States defense policy will impact the foreign policy of foreign nations; "The nexus between construction of GWEN and nuclear war is too attenuated to require discussion in the environmental impact statement"). "Neither the language nor the history of NEPA suggest that it was intended to give citizens a general opportunity to air their policy objections to proposed federal actions. The political process and not NEPA, provides the appropriate forum in which to air policy agreements." Metropolitan Edison, 460 U.S. at 777.
With respect to the second claim, Plaintiffs' argument that the proposed facility could encourage similar facilities overstates the importance of the individual facility proposed. Many similar facilities already exist, including those at the San Francisco and Davis campuses of the University of California. Plaintiffs argue that the proposed facility is unique because it will "weaponize" pathogens; however, Plaintiffs support this point only by using stricken declarations, and the EA directly contradicts it. See LLNL AR1 at C-7 (noting that LLNL will not "weaponize" pathogens and that weaponization is not part of any DOE proposal). Plaintiffs have not demonstrated that this claim by the EA is arbitrary or not credible.
Moreover, as Defendants note, the environmental effects of all future facilities that the DOE proposes will be subject to the same analysis under NEPA that was necessary for the LLNL facility. In view of this continuing requirement, Plaintiffs have not demonstrated that the operation of the proposed BSL-3 facility involves the "thoughtless setting in motion of a `chain of bureaucratic commitment.'" Presidio Golf Club, 155 F.3d at 1162.
3. Public controversy
Under 40 C.F.R. 1508.27(b)(4), the EA must consider "the degree to which the effects on the quality of the human environment are likely to be highly controversial." To establish the type of controversy requiring the preparation of an EIS, there must be a "substantial dispute" over the size, nature or effect" of the proposal. Foundation for N. Am. Wild Sheep v. USDA, 681 F2d 1172, 1182 (9th Cir. 1982). For example, in Foundation, controversy existed not because the majority of public comments opposed the project, but because the comments of scientists and state wildlife agencies created substantial dispute over the scientific conclusions of the USDA. Id.
Plaintiffs argue that the DOE must prepare an EIS because the DOE, during the public comment period, received numerous comments opposing the operation of a BSL-3 facility at LLNL. Defendants note, however, that out of the 83 comments DOE received, 73 were copies of a chain letter drafted by one of this case's Plaintiffs. Thus, only a relatively small number of individuals have voiced objections, and some of these objections are only political in nature and do not directly discuss why the environmental effect of the lab is, itself, controversial. It is likely that genuine political or moral beliefs motivated these letters, but the letters do not explain why the " effects on the quality of the human environment are likely to be highly controversial." 40 C.F.R. 1508.27(b)(4) (emphasis added).
For instance, one comment begins, "I don't want my tax dollars used for a BSL-3 facility run by the DOE. Why isn't the CDC handling this research? They appear to be more qualified than the Livermore Lab." LLNL AR1 at C-20. Another reads, "We have enough of these labs already. How about looking for ways to advance evolve all people in ways of peace instead of subjugation threats." Id. at C-32.
Moreover, the EA considers and responds to the comments the DOE received. See LLNL AR1 app C. 21. For example, DOE responded to comments regarding the risks posed by transportation of infectious agents to and from the BSL-3 facility. The EA explains that shipments of agents to LLNL would be small in size, typically around one milliliter (a milliliter is about one-fifth of a teaspoon). AR 1:1:22, C-13. Each shipment must be packaged according to Department of Transportation (DOT) regulations at 49 C.F.R. Pt. 171-178; AR 1:1:23. Each shipment is also subject to regulations of the U.S. Public Health Service (42 C.F.R. Pt. 71-73), the Department of Agriculture (7 C.F.R. Pt. 330-331 and 9 C.F.R. Pt. 92), and the Postal Service ( 39 C.F.R. Pt.111). AR 1:1:22.
Plaintiffs do not suggest that DOE was unaware of the public comments. See Surfrider Found. v. Dalton, 989 F. Supp. 1309, 1322 (S.D. Cal. 1998) (government's point by point answers demonstrate that agency considered public controversy); Northwest Envtl. Defense Ctr. v. Wood, 947 F.Supp. 1371 (D.Or. 1996) ("It is, nonetheless, true that private citizens, both scientists and non-scientists, argued against issuance of the permit. . . . As indicated above, the Corps addressed these concerns. Moreover, the Corps ultimately stated that its decision was consistent with the views of `numerous commenters' that `sufficient laws, regulations, codes and programs exist to ensure sufficient environmental protection. . . .' The Corps concluded, `although the project remains controversial in the community, the probability of other than nonsignificant impacts occurring is extremely low.'") (citations omitted).
As the Fourth Circuit has warned, if the environmental effects of a proposed action must be treated as "controversial" merely because the action is opposed, "opposition, and not the reasoned analysis set forth in an environmental assessment, would determine whether an environmental impact statement would have to be prepared. The outcome would be governed by a `heckler's veto.'" North Carolina v. FAA, 957 F.2d 1125, 1133-34 (4th Cir. 1992) (citations omitted).
Moreover, the expert declarations submitted as part of Plaintiffs' motion for summary judgment and opposition to Defendants' motion for summary judgment — which were filed after the EA was issued — cannot be taken to demonstrate a controversy. "We cannot characterize an agency's action as `arbitrary' for its failure to consider views that were never presented to it." Greenpeace Action v. Franklin, 982 F.2d 1342, 1353 n. 12 (9th Cir. 1992).
4. Cumulative effects
Under 40 C.F.R. 1508.27(b), the EA must consider "[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts." A cumulative impact is one "which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions." 40 C.F.R. 1508.7.
Plaintiffs argue that the EA's consideration of the cumulative environmental effects of the proposed BSL-3 facility was inadequate. However, it is not clear what specific argument Plaintiffs raise to question the EA's consideration of cumulative effects. See LLNL AR1 at 56. Instead, Plaintiffs seem to merge this argument into claims about precedential effects, claims about the relevance of the CBNP, and claims about the interaction between the proposed BSL-3 facility and the existing BSL-1 and BSL-2 facilities at LLNL. The Court has already held that DOE's decisions regarding these issues were not arbitrary or capricious. For the same reasons, discussed supra, the Court finds that the EA adequately considers the cumulative effects of the proposed BSL-3 facility. For example, the EA considers the cumulative effect of the hazardous waste that will be generated by the existing BSL-1 and BSL-2 facilities with the proposed BSL-3 facility. In 2002 LLNL generated approximately 658,000 lbs of solid hazardous waste. AR1:27:7-2. The proposed BSL-3 lab will generate an additional 1,144 lbs of solid waste. This is an insignificant increase; thus, the cumulative effect is minimal.
C. Plaintiffs' challenge against DOE's decision not to file a PEIS for the NNSA's CBNP
The EA under consideration in this case concerns the single proposed BSL-3 facility at LLNL. The DOE produced a separate EA for a similar proposed facility at LANL. Plaintiffs argue that the NNSA's nationwide Chemical and Biological National Security Program (CBNP) proposes connected, cumulative action that requires a single Programmatic EIS (PEIS); alternatively, they argue that at least the proposed BSL-3 facilities at LLNL and LANL should be treated by a single EIS.
Regulations promulgated under NEPA define the appropriate scope for EA and EIS documents. Under 40 C.F.R. 1508.25, for example, agencies must consider whether multiple proposed actions are connected or whether they automatically trigger new actions, and agencies must account for such connections. The decision of whether to prepare a PEIS is subject to the same "arbitrary and capricious" standard that governs the rest of this APA review. See Churchill County v. Norton, 276 F.3d 1060, 1075 (9th Cir. 2001) ("a party challenging an agency's refusal to prepare a comprehensive EIS must show that the agency acted arbitrarily in making that determination"). Regulations suggest that "agencies may find it useful" to choose a scope based on "one of the three following ways: . . . (1) Geographically . . . (2) Generically, including actions which have relevant similarities, including common timing, impacts, alternatives, methods of implementation, media, or subject matter. . . . (3) By stage of technological development." 40 C.F.R. 1502.4.
Generally, the regulations are deferential to the agency. They state that "agencies may find it useful" to choose a scope based on one out of three standards (one of which includes geography). C.F.R. 1502.4. In some circumstances, the Ninth Circuit has found that a single EIS or PEIS must be conducted because the projects have are intertwined and have a cumulative effect. To illustrate, in Thomas v. Peterson, 753 F.2d 754, 759-760 (9th Cir. 1985), the Ninth Circuit required a single EIS where it found sufficient evidence in the record to suggest that road and timber sales would have significant cumulative effects, including sediment deposits in the Salmon River (detrimental to fish) and destruction of critical habitat for the endangered Rocky Mountain gray wolf. In City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir. 1990), the Ninth Circuit held that an agency must prepare both a programmatic EIS and a site-specific EIS "[w]here there are large scale plans for regional development." Id. Notably, in each case, the programs were intertwined because they affected the same geographic region. Thus, at least when the projects in a particular geographical region are foreseeable and similar, NEPA may call for an examination of their impact in a single EIS. In the case at hand, however, LANL and LLNL are two distinct facilities. They are located in separate states. Plaintiffs have not demonstrated that the building of these two facilities is so intertwined that their impacts should have been analyzed together. For example, a catastrophic accident at the LANL facility in New Mexico will not affect the environment where LLNL is located, California. Nor are the facilities interdependent such that what occurs within LANL will dictate what occurs within LLNL or vice versa. Moreover, there are over 250 BSL-3 facilities within the United States, including one at the University of San Francisco campus and one at the University of California Davis campus. Given the number of facilities, it is doubtful that the addition of two more facilities in separate geographic locations would provide a cumulative impact. Thus, Plaintiffs have not demonstrated that DOE's decision to issue separate EAs for these separate facilities was arbitrary or capricious.
D. Plaintiffs' challenge against DOE's decision not to file a PEIS examining the combined effects of the proposed BSL-3 facility and the existing BSL-1 and BSL-2 facilities at LLNL
The regulations define "cumulative actions" as those which "when viewed with other proposed actions have cumulatively significant impacts." 40 C.F.R. § 1508.25(a)(2) (emphasis added). A PEIS is required for proposed projects, not existing ones. Andrus v. Sierra Club, 442 U.S. 347, 350, 355 (1979), Kleppe v.Sierra Club, 427 U.S. 390, 415 (1976).
Plaintiffs argue that DOE should have filed a PEIS to examine the effects that the proposed BSL-3 lab will have when combined with the BSL-1 and BSL-2 facilities at LLNL. The BSL-1 and BSL-2 facilities, however, are not "other proposed actions." They are existing facilities that have already been subject to review under NEPA. Thus, they cannot constitute "cumulative actions."
Moreover, the EA considers the effect that the BSL-3 lab will have and concludes that it will not result in a cumulatively significant impact. AR 1:1:56. The existing BSL-1 and BSL-2 labs handle materials that pose, at most, a "moderate hazard" and have a two decade history of safe operation. Although Plaintiffs dispute these findings and proffer the declarations of numerous experts in support of their claim, the Court must defer to DOE's discretion in choosing and relying upon the reasonable findings of its own experts. As discussed supra Defendants have chosen to rely on their own experts, which they have the discretion to do; Defendants have established that their experts dispute the scientific findings of Plaintiffs' experts; Defendants have demonstrated that the grounds for Defendants' experts findings were reasonable (e.g., the choice of Q Fever as the test agent was supported by the CDC); and thus the record establishes that DOE took the required "hard look." While Plaintiffs may strenuously object to DOE's findings, they have not shown that DOE's assessments are arbitrary or capricious.
E. Summary
Because the record demonstrates that DOE took the requisite hard look and that its conclusions were not arbitrary or capricious, Defendants are entitled to summary judgment on the issue of the adequacy of the EA.
PLAINTIFFS' CLAIMS UNDER FOIA
A. Standard of review
Summary judgment for the defending agency is appropriate in a FOIA case if the agency can demonstrate that it has "conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983); see also Zemansky v. United States EPA, 767 F.2d 569, 571 (9th Cir. 1985). The defending agency bears the burden of proving the adequacy of the search. Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2nd Cir. 1994); Weisberg, 705 F.2d at 1350. The court views the facts, and all reasonable inferences therefrom, in the light most favorable to the requester. Zemansky, 767 F.2d at 571; Pollack v. United States Bureau of Prisons, 879 F.2d 406, 409 (8th Cir. 1989).
To prevail, the defendant agency must demonstrate that the search was adequate. Zemansky, 767 F.2d at 571. This inquiry depends on whether the search was reasonable under the facts of the case. Id. The agency must show only that the search was reasonable, not that it was exhaustive or that every document has been located. Miller v. United States Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985); Zemansky, 767 F.2d at 571. The agency "must make a diligent search for the requested documents in the places in which they might be expected to be found." Chamberlain v. United States Dep't of Justice, 957 F.Supp. 292, 294 (D.D.C. 1997).
The agency may satisfy its burden by providing "reasonably detailed, nonconclusory affidavits submitted in good faith." Zemansky, 767 F.2d at 571; see also Carney, 19 F.3d at 812. At a minimum, the affidavits or declarations should provide detail about the method and scope of the search. Maynard v. CIA, 986 F.2d 547, 559 (1st Cir. 1980). Affidavits or declarations submitted by an agency are "`accorded a presumption of good faith." Carney, 19 F.3d at 812.
If the agency has provided the required affidavits, the burden shifts to the requester to raise a material factual issue concerning the reasonableness of the search. Miller, 779 F.2d at 1384. This can be done by "contradicting the [agency's] account of the search procedure or by raising evidence of the [agency's] bad faith." Id.; see also Carney, 19 F.3d at 812.
B. Discussion
The parties do not dispute that DOE has provided to Plaintiffs all non-privileged documents in its possession that are responsive to (1) Plaintiffs' two September 23, 2002 FOIA requests, see Pelzner-Goodwin Declaration; Becknell Declaration; Weisse Declaration, (2) Plaintiffs' two May 19, 2003 FOIA requests, see Lopez Declaration, Pelzner-Goodwin Declaration, Withnell Declaration, and (3) Plaintiffs' March 10, 2003 FOIA request, see Rothrock Declaration. Plaintiffs argue, however, that DOE's responses were untimely. DOE provided many of the documents only after litigation had commenced; Plaintiffs argue this untimeliness is evidence of bad faith.
Generally, a lack of timeliness does not preclude summary judgment for an agency in a FOIA case. Papa v. U.S., 281 F.3d 1004 (9th Cir. 2002) (production of all nonexempt material, "however belatedly," moots FOIA claims); Minier v. CIA, 88 F.3d 796, 803 (9th Cir. 1996) (rejecting claim of bad faith where agency took over two years to answer FOIA request); Carney, 19 F.3d at 812-13 (2nd Cir. 1994); Hornbostel v. U.S. Dept. of Interior, 305 F. Supp. 2d 21, 25 (D.D.C.,2003); Landmark Legal Foundation v. E.P.A., 272 F. Supp. 2d 59, 61 (D.D.C.,2003). The only question for summary judgment is whether the agency finally conducted a reasonable search, and whether its withholdings (if in dispute) are justified. When exactly a reasonable search was conducted is irrelevant. See, e.g., Hornbostel, 305 F. Supp. 2d at 25; Atkins v. Dep't of Justice, 1991 WL 185084 (D.C. Cir. Sept.18, 1991) (unpub.) ("The question whether DEA complied with the Freedom of Information Act's (FOIA) time limitations in responding to Aaron Atkins' request is moot because DEA has now responded to this motion."); Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir. 1987) ("`[H]owever fitful or delayed the release of information under the FOIA may be . . . if we are convinced appellees have, however belatedly, released all nonexempt material, we have no further judicial function to perform under the FOIA.'") (quoting Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982)).
When a plaintiff argues that an agency's untimeliness is due to bad faith, courts may look at whether it appears that the agency noticeably stepped up its cooperative efforts subsequent to the filing of the suit. If some essentially insignificant documents were released before the lawsuit but significantly more were released due to the lawsuit, the plaintiff has substantially prevailed. "Normally, the rate of document production before and after filing a complaint is probative as to whether litigation had a significant effect on an agency's response." O'Neill, Lysaght Sun v. Drug Enforcement Admin. 951 F.Supp. 1413, 1420 (C.D.Cal.,1996) (internal citations omitted).
In support of their allegation of DOE's bad faith, Plaintiffs lists examples of what they perceive as DOE's untimely responses. DOE did not release a final determination regarding Plaintiff Nuclear Watch New Mexico's September 23, 2002 FOIA request (FOIA #02-79-C) until February 18, 2004, the same day plaintiffs filed their Motion for Summary Judgment. DOE did not release a final determination regarding Plaintiff Tri-Valley CAREs' May 19, 2003 FOIA request (FOIA #2003-OK-20) until March 4, 2004, ten months after the request was made. DOE did not release a final determination regarding Plaintiff Nuclear Watch New Mexico's September 23, 2002 FOIA request to DOE-Oakland ("DOE-OK") (FOIA #2002-OK-49) until February 9, 2004 and March 12, 2004, over sixteen months after the request had been made.
At the outset, the Court notes that the earliest of these requests was filed on September 23, 2002. Plaintiffs commenced the underlying litigation almost a year later, on or about September 16, 2003. Once litigation commenced, for litigation purposes, the documents responding to the FOIA requests had to be reviewed by DOE headquarters before they were released. (Pelzner Decl. ¶ 6.) Thus, the delays that arose after September 2003 are due, at least in part, to the need for DOE headquarters' review; such delays do not evidence bad faith.
Moreover, in response to Plaintiffs' allegations of bad faith, DOE has submitted detailed declarations explaining the processing of Plaintiffs' FOIA requests. For example, Roseann Pelzner, a FOIA Officer in the Oakland Operations Office of DOE, explains that upon receipt of the September 23, 2002 FOIA request from Nuclear Watch New Mexico, she coordinated the document search with LLNL. (Pelzner Decl. ¶ 6.) She analyzed the FOIA request for a fee waiver and then forwarded the request to LLNL for an estimate of the cost of production of the documents. (Id.) When she received a request for a response from Nuclear Watch New Mexico on November 18, 2002, she responded within three days by advising Nuclear Watch New Mexico that "[a]s any document would have to be reviewed by Headquarters prior to release, I was not able to estimate the time required to respond fully, but I assured the requester that the request was being processed as promptly as possible) (Id.) Thus, the delay was not due to DOE's bad faith, but rather DOE's attempt to search documents with LLNL and have those documents approved by headquarters.
With respect to the May 22, 2003 FOIA request from Tri-Valley CAREs, Ms. Pelzner declares that after investigation, she determined that DOE-OAK and LLNL had no documents responsive to Plaintiffs' requests. She transferred the request to Headquarters, as required by DOE regulations. In addition, within five days of receiving the FOIA request, Ms. Pelzner notified Tri Valley CAREs of the results of her investigation.
In addition, Carolyn Becknell, a FOIA Officer with DOE in Albuquerque, New Mexico describes a detailed review of voluminous documents. Ms. Becknell reviewed Plaintiff Nuclear Watch New Mexico's FOIA request of September 23, 2002. (Becknell Decl. ¶ 5.) Upon receipt, Ms. Becknell contacted the BSL technical person in Albuquerque, who advised her that the request should be transferred to DOE Headquarter for action. (Id. ¶ 6.) Ms. Becknell forwarded the request to Abel Lopez, Director, FOIA and Privacy Act Group, Headquarters for DOE; she informed Nuclear Watch New Mexico that she had done so. (Id.) On November 1, 2002, Mr. Lopez issued a memorandum stating that DOE had sent to Nuclear Watch New Mexico documents responsive to item 1(f) of the request. (Id. ¶ 7.) Ms. Becknell had to track the records down, as they originated from a number of offices including DOE's Los Alamos Site Office, Sandia National Laboratories, and LANL. (Id. ¶ 8.) She began tracking them down on or about November 7, 2002. By November 3, 2003, LANL had found 62 responsive records and forwarded them to Ms. Becknell. The Los Alamos Site Office had found 29 responsive records and forwarded them to her. Ms. Becknell then forwarded the records for review by DOE Headquarters and the Department of Homeland Security. Once the records were approved for release, Ms. Becknell forwarded them to Plaintiffs on February 18, 2004.
While Ms. Becknell's response to the FOIA request was indeed time consuming, the Court does not find that it reflects bad faith. Instead, it reflects the time that it takes to collect and get approval for potentially sensitive records located in multiple sites. Given that the records involve information regarding BSL-3 laboratories, which require review from Homeland Security, the delay is understandable.
Plaintiffs also argue that DOE improperly withheld documents requested by Tri-Valley CAREs. On May 19, 2003, Tri-Valley CAREs requested "all memoranda of agreement (MOA's) and memoranda of understanding (MOU's) that have been concluded between the DOE and the CDC or its parent agency for access, use or activities at any other BSL-3 or BSL-4 facilities in the U.S. . . . Any other documents in the possession of DOE, LLNL or LANL that discuss or establish practices or procedures for BSL-2, BSL-3, or BSL-4 activities at a CDC owned or operated facility." (Declaration of Pelzner Goodwin, Exhibit E to DCM, page 2.)
While DOE did not produce any MOU's in response to this request, on January 29, 2004, DOE released an MOU between LLNL and the CDC to Nuclear Watch of New Mexico. Plaintiffs argue that that MOU should have been released to Tri-Valley CAREs pursuant to its May 19, 2003 FOIA request, as it was an MOU between a DOE National Laboratory and the CDC. Plaintiffs argue that the fact that it was not sent in response to that request demonstrates that the DOE office handling the request did not make its required "good faith" effort to conduct a search for the requested records. The issue before this Court, however, "is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Citizens Comm'n On Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir. 1995) (internal quotes omitted). Given the detailed response set forth by Ms. Pelzner regarding the search she conducted, the absence of this one document does not evidence bad faith.
Because: (1) DOE has set forth detailed facts regarding the searches it undertook to respond to Plaintiffs' FOIA requests; (2) Plaintiffs have failed to show that the searches themselves were inadequate; and (3) DOE has set forth detailed facts regarding why its responses took a number of months, and Plaintiffs have not demonstrated that the delay was due to bad faith, Defendants are entitled to summary judgment on the FOIA issue.
CONCLUSION
Based on the foregoing,
IT IS HEREBY ORDERED THAT Defendants' motion for summary judgment is GRANTED; Plaintiffs' motion for summary judgment is DENIED. The Clerk of the Court shall terminate the file.
IT IS SO ORDERED.