Government did not waive work product privilege by releasing some information

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Date: March-April 2013
From: Hazardous Waste Consultant(Vol. 31, Issue 2)
Publisher: Aspen Publishers, Inc.
Document Type: Article
Length: 2,225 words
Lexile Measure: 1360L

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In a December 26, 2012 decision, the U.S. Court of Appeals for the Seventh Circuit affirmed a district court's decision denying a company access to reports prepared by a government consultant in anticipation of litigation (Appleton Papers, Inc. v. EPA, No. 11-C-318 [7th Cir. Dec. 26, 2012]). The U.S. Department of Justice (DOJ) used the reports, along with other information, to apportion liability for a $1 billion cleanup of the Lower Fox River in Wisconsin.

Although the company sought discovery of the reports through a Freedom of Information Act (FOIA) request, the appeals court found that the district court had properly characterized the documents as attorney work products, and that the DOJ had not waived the privilege when it released parts of the reports in two consent decrees. The appeals court concluded that the company's arguments came down "... to a series of policy justifications that must be left for district courts in individual litigation instead of a FOIA request, which is not a substitute for discovery."

Background

In the 1890s, paper mills started operating on Wisconsin's rivers, with the largest concentration of mills on the Lower Fox River. The river begins at Lake Winnebago and runs for about 40 miles northeast until it discharges into Green Bay, a part of Lake Michigan. Paper manufacturing produces serious water pollution, and the Lower Fox River is contaminated with polychlorinated biphenyls (PCBs), which are known to cause health problems in both humans and animals. In 1954, NCR Corp. developed carbonless copy paper, which is the probable source of many of the PCBs found in the river. Between 1954 and 1971, a number of paper manufacturers produced this paper, discharging approximately 230,000 kilograms of PCBs into the river.

In 1998, EPA and the Wisconsin Department of Natural Resources started developing a CERCLA cleanup plan. The final river cleanup plan was issued in 2002 after extensive public comment. Wherever the average PCB concentration exceeds 1.0 ppm, remediation is required. The plan calls for a combination of dredging and capping at sites along the river, depending on river dynamics and PCB concentrations.

As part of site remediation and legal action, the DOJ issued a unilateral administrative order under CERCLA to Appleton Papers, Inc. (API), and to seven other potentially responsible parties (PRPs), alleging that the PRPs had discharged PCBs into the river, causing $1 billion in contamination. DOJ hired a consultant, Amendola Engineering, Inc., to analyze the companies' responsibility for the contamination. Amendola prepared a report in 2000 that estimated the cost of cleanup of the amount of PCBs that each PRP had discharged to the river. DOJ released a partial copy of the report to API in 2000, with a revised partial report released in 2001.

In two consent decrees with other PRPs, DOJ cited the reports, which it had not released publicly. The first report citation was in support of DOJ's consent decree with the Fort James Operating Company. The 2000 report estimated Fort James' responsibility at 38%, while the revised 2001 report...

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Gale Document Number: GALE|A326852312