A federal court in New Jersey has granted in part and denied in part the U.S. motion for a protective order concerning U.S. Environmental Protection Agency (EPA) and U.S. Geological Service (USGS) documents. United States v. Pechiney Plastics Packaging, Inc., No. 3:09-cv-05692 (D.N.J. 3/19/13) (unpublished). The United States sued Pechiney Plastics seeking to recover cleanup costs, $24 million to date, at the Pohatcong Valley Groundwater Contamination Superfund Site. During discovery, the defendant sought documents relating to the site’s assessment and remedial-plan determination. The United States sought to withhold numerous documents on the ground of the deliberative process privilege.
The withheld documents included 156 drafts of EPA’s Proposed Remedial Action Plan, emails containing comments on the plan, an EPA feasibility study draft section that contained a “candid evaluation of site conditions and propose[d] recommended clean up action . . .,” and memoranda containing recommendations for selection of the site’s groundwater remedy. Also withheld were USGS documents including draft manuscripts, draft models and peer reviews of USGS reports on the site.
The court did not review the documents, so the analysis focused on the government’s privilege logs and two declarations that the government provided in support of its privilege claims. Ultimately, the court required the government to produce only two documents. The court found that some documents were left off the privilege logs and that one of the declarations failed to support the privilege with respect to certain documents. But rather than requiring production of those documents, the court chose to “exercise its discretion to afford the United States an opportunity to supplement its privilege log and add these documents thereto.”
The court also found that for documents containing factual information, the majority of that information was not severable from the report’s deliberative portions. The government asserted that it had provided the underlying facts in other forms, so the court required the government to submit a certification that the underlying factual material had in fact been produced. The court also ordered the United States to produce a chart of groundwater values, saying it contained only facts, not deliberative material. Finally, holding that the government had not shown that a memorandum about a meeting between EPA and New Jersey regulators was tied to any specific decision, the court required the government to produce that memorandum.