Latham & Watkins LLP v. United States Environmental Protection Agency Doc.

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Case 3:07-cv-00245-DMS-LSP Document 10 Filed 04/23/2007 Page 1 of 9

1 KAREN P. HEWITT
United States Attorney
2 CINDY M. CIPRIANI
Assistant U.S. Attorney
3 California State Bar No. 144402
MEGAN CALLAN
4 Assistant U.S. Attorney
California State Bar No. 230329
5 United States Attorney’s Office
880 Front Street, Room 6293
6 San Diego, California 92101-8893
Telephone: (619) 557-7120
7 Facsimile: (619) 557-5004
Email: Megan.Callan@usdoj.gov
8
Counsel for Defendant
9
UNITED STATES DISTRICT COURT
10
SOUTHERN DISTRICT OF CALIFORNIA
11
LATHAM & WATKINS,LLP, )
12 )
Plaintiff, ) Case No. 07cv0245 DMS (LSP)
13 )
v. )
14 ) ANSWER TO COMPLAINT
UNITED STATES ENVIRONMENTAL )
15 PROTECTION AGENCY, )
)
16 Defendant. )
____________________________________)
17
18 COMES NOW the Defendant, by and through its counsel, Karen P. Hewitt, United States
19 Attorney, and Cindy Cipriani and Megan Callan, Assistant United States Attorneys, and in answer to
20 the Plaintiff’s Complaint (“Complaint”), set forth the following:
21 1. Answering Paragraph 1 of the Complaint, Defendant lacks sufficient information or belief
22 upon which to state an answer to the allegations therein. To the extent an answer is required, said
23 allegations are denied.
24 2. Answering Paragraph 2 of the Complaint, with respect to the first sentence, Defendant admits
25 the allegation therein. With respect to the second sentence, Defendant admits that it has possession and
26 control over the records that Plaintiff seeks to the extent that the records refer to those Defendant has
27 identified it is withholding from production under FOIA exemptions in its letters to Plaintiff dated
28 August 31, 2005 and January 16, 2007. See Plaintiff’s Complaint at Exhibits 3, 6. Answering further,

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1 Defendant denies that Defendant has sole possession and control over the records Plaintiff seeks. To
2 the extent further answer is required, the allegations are denied.
3 3. Answering Paragraph 3 of the Complaint, Defendant states that the allegations contained
4 therein are legal conclusions solely within the purview of the Court and for its determination, and no
5 answer is therefore required. To the extent an answer is required, said allegations are denied.
6 4. Answering Paragraph 4 of the Complaint, Defendant lacks sufficient information or belief
7 upon which to base an answer to whether Plaintiff resides within the jurisdiction of the Court and to the
8 extent an answer is required, Defendant denies that allegation. Answering further, Defendant states that
9 the allegations regarding venue are legal conclusions solely within the purview of the Court and for its
10 determination, and no answer is therefore required. To the extent an answer is required, said allegations
11 are denied.
12 5. Answering Paragraph 5 of the Complaint, Defendant states that the allegations contained
13 therein are legal conclusions solely within the purview of the Court and for its determination, and no
14 answer is therefore required. To the extent an answer is required, said allegations are denied.
15 6. Answering Paragraph 6 of the Complaint, Defendant states that the allegations contained
16 therein are legal conclusions solely within the purview of the Court and for its determination, and no
17 answer is therefore required. To the extent an answer is required, said allegations are denied.
18 7. Answering Paragraph 7 of the Complaint, Defendant states that the allegations contained
19 therein are legal conclusions solely within the purview of the Court and for its determination, and no
20 answer is therefore required. To the extent an answer is required, said allegations are denied.
21 8. Answering Paragraph 8 of the Complaint, Defendant states that the allegations contained
22 therein are legal conclusions solely within the purview of the Court and for its determination, and no
23 answer is therefore required. To the extent an answer is required, said allegations are denied.
24 9. Answering Paragraph 9 of the Complaint, Defendant states that the allegations contained
25 therein are legal conclusions solely within the purview of the Court and for its determination, and no
26 answer is therefore required. To the extent an answer is required, said allegations are denied.
27 //
28 //

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1 10. Answering Paragraph 10 of the Complaint, Defendant states that the allegations contained
2 therein are legal conclusions solely within the purview of the Court and for its determination, and no
3 answer is therefore required. To the extent an answer is required, said allegations are denied.
4 11. Answering Paragraph 11 of the Complaint, Defendant states that the allegations contained
5 therein are legal conclusions solely within the purview of the Court and for its determination, and no
6 answer is therefore required. To the extent an answer is required, said allegations are denied.
7 12. Answering Paragraph 12 of the Complaint, Defendant states that two FOIA exemptions, 5
8 U.S.C. § 552(b)(5), the “deliberative process privilege,” and 5 U.S.C. § 552(b)(7)(A), the “law
9 enforcement privilege,” precluded the production of certain documents to Plaintiff. To the extent any
10 further answer is required, said allegations are denied.
11 13. Answering Paragraph 13 of the Complaint, Defendant states that the allegations contained
12 therein are legal conclusions solely within the purview of the Court and for its determination, and no
13 answer is therefore required. To the extent an answer is required, said allegations are denied.
14 14. Answering Paragraph 14 of the Complaint, Defendant states that the allegations contained
15 therein are legal conclusions solely within the purview of the Court and for its determination, and no
16 answer is therefore required. To the extent an answer is required, said allegations are denied.
17 15. Answering Paragraph 15 of the Complaint, Defendant states that the allegations contained
18 therein are legal conclusions solely within the purview of the Court and for its determination, and no
19 answer is therefore required. To the extent an answer is required, said allegations are denied.
20 16. Answering Paragraph 16 of the Complaint, Defendant states that the allegations contained
21 therein are legal conclusions solely within the purview of the Court and for its determination, and no
22 answer is therefore required. To the extent an answer is required, said allegations are denied.
23 17. Answering Paragraph 17 of the Complaint, Defendant states that the allegations contained
24 therein are legal conclusions solely within the purview of the Court and for its determination, and no
25 answer is therefore required. To the extent an answer is required, said allegations are denied.
26 18. Answering Paragraph 18 of the Complaint, Defendant states that the allegations contained
27 therein are legal conclusions solely within the purview of the Court and for its determination, and no
28 answer is therefore required. To the extent an answer is required, said allegations are denied.

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1 19. Answering Paragraph 19 of the Complaint, Defendant admits that Plaintiff made a FOIA
2 request to United States Environmental Protection Agency, Region 9 seeking (1) “All of EPA Chief
3 Enforcement Officer and Asbestos NESHAP Coordinator Robert Trotter’s documents, records, reports,
4 files, e-mails, and notes related to alleged asbestos and asbestos containing materials at the “Encanto
5 Site,” located at 1350 San Altos Place, Lemon Grove, California (County of San Diego), including but
6 not limited to, communications with the San Diego County Department of Environmental Health
7 (“DEH”), the County of San Diego, the San Diego District Attorney’s Office, the San Diego Air
8 Pollution Control District (“APCD”) and the California Air Resources Board (“CARB”); and (2) “All
9 of EPA Chief Enforcement Officer and Asbestos NESHAP Coordinator Robert Trotter’s documents,
10 records, reports, files, e-mails, and notes related to NESHAP inspections on or about January 23, 2001
11 at the “Encanto Site” located at 1350 San Altos Place, Lemon Grove, California (County of San Diego),
12 including but not limited to, communications with the San Diego County DEH, the County of San
13 Diego, the San Diego District Attorney’s Office, the San Diego APCD and CARB.” See Plaintiff’s
14 Complaint, Ex. 2, p. 10. To the extent any further answer is required, the allegations are denied.
15 20. Answering Paragraph 20 of the Complaint, with respect to the first sentence, Defendant
16 admits that on January 23, 2001 EPA Inspector Robert Trotter (“Trotter”) inspected the asbestos
17 removal operations conducted by Sempra Energy/SDG&E at 1350 San Altos Place, Lemon Grove,
18 California (County of San Diego) (“the Encanto site”) and that Trotter’s inspection was conducted at
19 the request of the San Diego APCD. In all other respects, Defendant denies the allegations therein.
20 With respect to the second sentence, Defendant admits that Trotter observed the site and expressed
21 opinions about the asbestos removal operations conducted by Sempra Engergy/SDG&E at the Encanto
22 site. In all other respects, Defendant denies the allegations therein. With respect to the third sentence,
23 Defendant states that Trotter made a written statement signed on November 19, 2003 in which he
24 expressed his opinions about the material coating the pipes at the Encanto site and expressed his opinion
25 about how the pipe coating material was rendered a regulated asbestos containing material (“RACM”)
26 as a result of Sempra Energy/SDG&E treatment of the pipe and pipe coating material. In all other
27 respects, Defendant denies the allegations therein. With respect to the fourth sentence, Defendant states
28 that the allegations contained therein are legal conclusions solely within the purview of the Court and

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1 for its determination, and no answer is therefore required. To the extent an answer is required, said
2 allegations are denied.
3 21. Answering Paragraph 21 of the Complaint, with respect to the first sentence, Defendant
4 lacks sufficient information or belief upon which to state an answer to the allegations. To the extent an
5 answer is required, said allegations are denied. With respect to the second sentence, Defendant states
6 that the allegations contained therein are legal conclusions solely within the purview of the Court and
7 for its determination, and no answer is therefore required. To the extent an answer is required, said
8 allegations are denied.
9 22. Answering Paragraph 22 of the Complaint, Defendant states that Trotter made a written
10 statement signed on November 19, 2003 that was provided to SDG&E. Answering further, Defendant
11 admits that Trotter’s November 19, 2003 written statement explains that the “work practice violations
12 I observed by Sempra and IT Corporation at the Encanto site are the worst I have seen in my experience
13 with Asbestos removal.” See Plaintiff’s Complaint at Ex. 1, ¶ 25. With respect to the second through
14 fourth sentences, Defendant lacks sufficient information or belief upon which to answer the allegations
15 therein. To the extent an answer is required, said allegations are denied. Answering further, Defendant
16 states Defendant provided a copy of Trotter’s November 19, 2003 written statement to Plaintiff. With
17 respect to the fifth sentence, Defendant lacks sufficient information or belief upon which to answer the
18 allegations therein. To the extent an answer is required, said allegations are denied. With respect to the
19 sixth sentence, Defendant admits the allegations therein. With respect to the seventh sentence,
20 Defendant states that the allegations contained therein are legal conclusions solely within the purview
21 of the Court and for its determination, and no answer is therefore required. To the extent an answer is
22 required, said allegations are denied.
23 23. Answering Paragraph 23 of the Complaint, with respect to the first sentence, Defendant
24 admits that Trotter and agents of the County of San Diego engaged in written communications regarding
25 Trotter’s inspection of the Encanto site following the inspection. In all other respects, Defendant denies
26 the allegations therein. With respect to the second sentence, Defendant states that the allegations
27 contained therein are legal conclusions solely within the purview of the Court and for its determination,
28 and no answer is therefore required. To the extent an answer is required, said allegations are denied.

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1 24. Answering Paragraph 24 of the Complaint, Defendant denies the allegations therein.
2 25. Answering Paragraph 25 of the Complaint, with respect to the first sentence, Defendant
3 denies the allegations therein. Answering further, Defendant states that a criminal matter is ongoing
4 before United States District Court Judge Dana M. Sabraw, 06cr0065-DMS, filed by the United States
5 Attorney’s Office for the Southern District of California on January 11, 2006 relating to the Encanto
6 site. With respect to the second sentence, Defendant lacks sufficient information or belief upon which
7 to answer. To the extent an answer is required, Defendant denies the allegations therein.
8 26. Answering Paragraph 26 of the Complaint, Defendant lacks sufficient information or belief
9 upon which to answer. To the extent an answer is required, Defendant denies the allegations therein.
10 27. Answering Paragraph 27 of the Complaint, with respect to the first sentence, Defendant
11 states that a criminal matter is ongoing before United States District Court Judge Dana M. Sabraw,
12 06cr0065-DMS, filed by the United States Attorney’s Office for the Southern District of California on
13 January 11, 2006 relating to the Encanto site. In all other respects, Defendant denies the allegations
14 therein. With respect to the second sentence, Defendant lacks sufficient information or belief upon
15 which to base an answer to the allegations therein. To the extent an answer is required, said allegations
16 are denied. With respect to the third and fourth sentences, Defendant states that the allegations
17 contained therein are legal conclusions solely within the purview of the Court and for its determination,
18 and no answer is therefore required. To the extent an answer is required, said allegations are denied.
19 28. Answering Paragraph 28 of the Complaint, with respect to the first sentence, Defendant
20 denies the allegations therein. With respect to the second sentence, Defendant lacks sufficient
21 information or belief upon which to base an answer to the allegations therein. To the extent an answer
22 is required, said allegations are denied. With respect to the third sentence, Defendant admits that
23 Plaintiff made a FOIA request to United States Environmental Protection Agency, Region 9, and that
24 the request is reproduced herein at Paragraphs 19-20. In all other respects, the allegations are denied.
25 29. Answering Paragraph 29 of the Complaint, Defendant denies the allegations therein.
26 30. Answering Paragraph 30 of the Complaint, with respect to the first sentence, Defendant
27 denies the allegations therein with the exception that Defendant admits that on August 31, 2005
28 Defendant granted in part and denied in part Plaintiff’s FOIA request. Answering further, Defendant

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1 states that Defendant requested an extension of time in which to locate and produce documents
2 responsive to Plaintiff’s FOIA request. Defendant produced the responsive documents in accordance
3 with FOIA and withheld certain documents in accordance with FOIA exemptions, 5 U.S.C. §§
4 552(b)(5), (7)(A). With respect to the second sentence, Defendant admits the allegations therein.
5 31. Answering Paragraph 31 of the Complaint, with respect to the first sentence, Defendant
6 lacks sufficient information or belief upon which to answer the allegation that Plaintiff already
7 possessed certain exhibits. Answering further, Defendant states that in its August 31, 2005 FOIA
8 response, Defendant withheld eleven (11) documents because the documents are exempt from disclosure
9 under FOIA, 5 U.S.C. §§ 552(b)(5), (7)(A). With respect to the second through fourth sentences labeled
10 (a)-(c), Defendant states that a complete list of the documents withheld from production and the FOIA
11 exemption authorizing the withholding is set forth in the list attached to Defendant’s letter of August
12 31, 2005. To the extent any further answer is required, said allegations are denied.
13 32. Answering Paragraph 32 of the Complaint, Defendant states that the allegations contained
14 therein are legal conclusions solely within the purview of the Court and for its determination, and no
15 answer is therefore required. Answering further, Defendant states that Plaintiff appealed Defendant’s
16 partial denial of Plaintiff’s FOIA request on September 16, 2005. To the extent any further answer is
17 required, said allegations are denied.
18 33. Answering Paragraph 33 of the Complaint, with respect to the first sentence Defendant states
19 that it responded to Plaintiff’s September 16, 2005 appeal on January 16, 2007. Answering further
20 Defendant denies that its response was untimely. With respect to the second sentence, Defendant admits
21 the allegations therein.
22 34. Answering Paragraph 34 of the Complaint, with respect to the first sentence Defendant
23 denies the allegations therein. Answering further, Defendant states that in its response to Plaintiff’s
24 appeal, Defendant provided supplemental material, reasonably segregable information that could be
25 produced consistent with FOIA’s requirements. With respect to the second sentence, Defendant denies
26 the allegations therein. Answering further, Defendant states that its January 16, 2007 response to
27 Plaintiff’s appeal speaks for itself.
28 35. Answering Paragraph 35 of the Complaint, Defendant denies the allegations therein.

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1 36. Answering Paragraph 36 of the Complaint, Defendant states that no answer is required to
2 this allegation. To the extent an answer is required, said allegations are denied.
3 37. Answering Paragraph 37 of the Complaint, Defendant states that the allegations contained
4 therein are legal conclusions solely within the purview of the Court and for its determination, and no
5 answer is therefore required. To the extent an answer is required, said allegations are denied.
6 38. Answering Paragraph 38 of the Complaint, Defendant states that the allegations contained
7 therein are legal conclusions solely within the purview of the Court and for its determination, and no
8 answer is therefore required. To the extent an answer is required, said allegations are denied.
9 39. Answering Paragraph 39 of the Complaint, Defendant states that the allegations contained
10 therein are legal conclusions solely within the purview of the Court and for its determination, and no
11 answer is therefore required. To the extent an answer is required, said allegations are denied.
12 40. Answering Paragraph 40 of the Complaint, Defendant denies the allegations therein.
13 41. Answering Paragraph 41 of the Complaint, Defendant denies the allegations therein.
14 42. Answering Paragraph 42 of the Complaint, Defendant denies the allegations therein.
15 43. Answering Paragraph 43 of the Complaint, Defendant denies the allegations therein.
16 ADDITIONAL AND AFFIRMATIVE DEFENSES
17 All allegations not here before specifically admitted, denied, or modified are hereby denied. For
18 further and separate answer, Defendant United States Environmental Protection Agency alleges as
19 follows:
20 1. The Court lacks jurisdiction over the subject matter of this action.
21 2. Plaintiff’s Complaint fails to state a claim upon which relief may be granted.
22 3. At all times alleged in the Complaint, Defendant acted with good faith, with justification, and
23 pursuant to authority.
24 4. Defendant properly withheld documents of which Plaintiff’s Complaint seeks production
25 under FOIA, 5 U.S.C. §§ 552(b)(5), (7)(A).
26 //
27 //
28 //

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1 Wherefore, Defendant prays that Plaintiff take nothing by its Complaint, that judgment be
2 rendered in favor of Defendant, for costs of suit included herein, and for all other relief that the Court
3 deems proper.
4 DATED: April 23, 2007 Respectfully submitted,
5
KAREN P. HEWITT
6 United States Attorney
7 CINDY M. CIPRIANI
Assistant U.S. Attorney
8 Deputy Chief, Civil Division
9
s/ Megan Callan
10
MEGAN CALLAN
11 Assistant U.S. Attorney
Attorneys for Defendant
12 Email: Megan.Callan@usdoj.gov
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