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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 5

77 WEST JACKSON BOULEVARD

CHICAGO, IL 60604-3590

REPL Y TO THE ATTENTION OF

VIA ELECTRONIC TRANSMISSION AND C-14J


CERTIFIED MAIL RETURN RECEIPT REQUESTED
7001 03200006 1457 8383

Melanie Sloan, Executive Director


Citizens for Responsibility and Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, DC 20005

Re: Freedom of Information Act (FOIA) Request from Citizens for Responsibility and
Ethics in Washington (CREW), Dated May 7, 2008, as Amended May 15,2008
(05-RIN-OI035-08 and HQ-RIN-1328-08); Partial ResponselPartial Denial

Dear Ms. Sloan:

This letter is a partial response of the United States Environmental Protection Agency
(EPA or Agency), Region 5 office, regarding your FOIA Request dated May 7, 2008, as
amended on May 15,2008 (see Enclosure 1), concerning the following request:

[A]ny and all records from October 16,2006 through the date of this letter ... to
or from former EPA Regional Administrator Mary Gade regarding the release of
dioxin by Dow Chemical into Saginaw Bay and Lake Huron and/or any of Dow
Chemical's efforts to clean up environmental hazards caused by that release.

EPA Region 5 previously sent to you documents responsive to your request in packages
sent July 29, September 24, October 15, October 17 and October 23,2008.

In addition to the above responses, EPA Region 5 has segregated from its files and
withheld responsive documents determined to be exempt from mandatory disclosure by
virtue of 5 U.S.C. § 552(b). Pursuant to 40 C.F.R. § 2. 104(h), EPA Region 5 has
enclosed with this letter a description of responsive documents that we have determined
to be exempt from mandatory disclosure. We have enclosed an index of withheld emails
and attachments (see Enclosure 2) and, due to the volume of documents collected, a
general description of the withheld electronic and paper documents in accord with 40
C.F.R. § 2. 104(h) (see Enclosure 3).

Note that the scope of the FOIA exemption determination issued by EPA today does not
cover those Region 5 documents currentl y being withheld in whole or in part by virtue of
Exemption 3, 5 U.S.C. § 552(b)(3), which exempts from FOIA documents which are
exempt from disclosure by another federal statute. These documents contain, discuss,

Recycled/Recyclable. Printed with Vegetable Oil Based Inks on 100% Recycled Paper (50% Postconsumer)
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relate, or would otherwise divulge claimed confidential dispute resolution


communications made under an alternative dispute resolution mediation entered into by
EPA, Dow Chemical Company, the State of Michigan and other parties in December
2005, pursuant to the Administrative Dispute Resolution Act of 1996,5 U.S.c. § 571 et.
seq. ("ADR documents"). In a telephone conversation with your counsel, Scott Hodes,
held on October 30, 2008, Mark Palermo of my staff indicated that we were ready to
issue a partial denial letter on the responsive documents withheld by Region 5 with the
exception of withheld ADR documents, which require additional review. Mr. Hodes
requested and EPA agreed that EPA would issue a denial determination for those
withheld responsive documents other than the ADR documents, and either release or
issue a separate denial determination for the ADR documents after completion of EPA's
review. Thus, the responsive ADR will be addressed by a future response from EPA as
indicated above. EPA will provide this response by November 21, 2008.

In addition, please note that we conducted our search for records responsive to your
FOIA request simultaneously with a search for records responsive to a May 13,2008,
document request from the Senate Committee on Environment and Public Works (EPW)
that sought in part, "all documents (l) referencing or authored by [Mary] Gade and (2)
associated with Ms. Gade's actions to enforce the clean-up of dioxin pollution associate
with Dow Chemical Co.'s Midland, Michigan plant." Given the similarity of the EPW
request with your request, and for the purpose of executing administrative efficiency, wc
have combined documents potentially responsive to the EPW and/or your request into a
single responsive nonexempt document collection and a single responsive exempt
document collection to comprise our response to both requests. Thus, you have received
in addition to documents to or from Ms. Gade, documents that reference Ms. Gade
regarding any matters related to Dow Midland off-site contamination matter. Moreover,
today's partial denial determination covers exempt documents collected as part
CEPW/CREW combined document set.

A general description of the exemption categories follows below.

Excmption 5, 5 U.S.C. § 552(b)(5), includes information subject to the attorney/client


privilege, attorney work product and deliberative process privilege recognized under
common law.

Exemption 6,5 U.S.C. § 552(b)(6), includes personnel and medical files and similar files
the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.

Exemption 7(A), 5 U.S.C. § 552(b)(7)(A), provides for the withholding of information


which could reasonably be expected to interfere with pending or prospective EPA
enforcement proceedings. It should be stressed that the large number of documents
withheld as exempt from your FOIA request under Exemption 7(A) is due in large part to
the fact that, during her tenure, former Regional Administrator Gade had significant
involvement in many of the enforcement activities taken with respect to the Dow
Midland off-site contamination matter, and such activities could likely affect or be related
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to pending or prospective EPA enforcement proceedings with respect to the matter, such
enforcement proceedings may be harmed by the release of these documents in response
to your FOIA request.

You have the right to appeal our determination to EPA, Office of Environmental
Information, Records Privacy and FOIA Branch (2822T), 1200 Pennsylvania Avenue,
N.W., Washington, D.C. 20460, pursuant to FOIA. Your appeal must be in writing and
received at this address no later than 30 calendar days from the date of this letter. If EPA
receives your appeal after the 30 calendar day limit, it will not consider your appeal. The
appeal may include as much or as little related information as you wish, as long as it
clearly identifies the determination being appealed (including the assigned FOIA request
number 05-RIN-01 035-08). Please mark your appeal letter and envelope "Freedom of
Information Act Appeal" for the quickest possible handling.

If you have any questions regarding this matter please contact Mark Palermo at (312)
886-6082.

Sincerely,

-l<~Jt-~ ~~ ?

Robert A. Kaplan
Regional Counsel

Enclosures

cc: Mark J. Palermo


Associate Regional Counsel
Office of Regional Counsel

Anne Weismann, Esq.


General Counsel
CREW

Scott Hodes, Esq.