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The Freedom of Information Act (FOIA) gives the public access to nonexempt federal government records. Recent amendments under the Openness Promotes Effectiveness in Our National Government Act of 2007 (the OPEN Act), however, provide much-needed improvements to the FOIA process. ,
FOIA can be a useful tool to help environmental lawyers advise clients in an array of matters, ranging from permit compliance to the defense of agency enforcement actions. FOIA also can be a valuable tool to retrieve documents from agencies such as the Environmental Protection Agency (EPA). Such documents can be invaluable in effectively representing clients designated as potentially responsible parties (PRPs) at Superfund sites listed under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Lawyers should consider using FOIA to retrieve key documents that help assess the extent, or lack thereof, of the .liability faced by a PRP.
In practice, however, using FOIA to assist clients embroiled in Superfund cases can be challenging. The recent amendments to FOIA will help address some of these challenges.
Take, for example, the Portland Harbor Superfund Site (Site) in Portland, Oregon. In December 2000, EPA added a stretch of the Willamette River just north of downtown Portland to the National Priorities List. The remedial investigation has been ongoing since 2001 with EPA oversight. EPA has sent notice letters to approximately eighty parties over the years. These letters allege that the recipients may be potentially responsible for contamination. Most recently, in January 2008, EPA sent approximately 280 CERCLA section 104(e) information requests to a comprehensive list of current and former owners, tenants, and operators located within and outside of the Site boundaries. In addition, the Portland Harbor Natural Resource Trustees have given notice to multiple PRPs, alleging potential liability for natural resource damages (NRD) and requesting injury assessment funding assistance.
However, a number of entities receiving the EPA and NRD letters believe they are in fact de...