Case Detail

FOIA Project Annotation: A federal court in Missouri has ruled that the EPA properly withheld information about whether emissions from four coal-powered plants owned by Ameren Missouri violated the Clean Air Act under Exemption 5 (privileges) and Exemption 7(A) (interference with ongoing investigation or proceeding). After the Justice Department filed suit against Ameren for violating the CAA, the company submitted a request to EPA for information concerning how it calculated whether the emissions from its plants constituted a violation of the statute. The agency disclosed the raw data it used to make its calculations, but refused to provide calculations along with records containing discussions between EPA scientists and agency and DOJ attorneys. Although the agency claimed records were protected by both the attorney-client privilege and the work product privilege, the company argued that most of the data was factual and could not be considered privileged. The court noted that "plaintiff's characterization of the Numerical Information as 'purely factual' fails to take into account that the seemingly straightforward numeric results of Defendant's assessments of Plaintiff's compliance with the CAA are not 'purely factual,' but rather derive from raw data (that has been disclosed to Plaintiff) selected and analyzed pursuant to its own formulas by Defendant's technical staff, scientists, and engineers, working in conjunction with or at the direction of attorneys. Therefore, the Numerical Information, albeit numeric, constitutes 'mental impressions, conclusions, opinions, or legal theories' so as to satisfy the requirements of the work product privilege." On the 7(A) claim, the company argued that the agency was disregarding its statutory obligation to encourage compliance with environmental laws by withholding its enforcement strategies, and the direction and scope of the investigation. The court disagreed, observing that "this argument ignores another of Defendant's obligationsâ€"the enforcement of those laws and regulations. Disclosure of enforcement strategies and the direction, scope, and limits of investigations interferes with this law enforcement activity by permitting Plaintiff and other regulated entities to violate the CAA, but evade detection. It is not for Plaintiff to decide the best method for Defendant to fulfill its enforcement obligations."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 7(A) - Interference with ongoing investigation

Date Filed	Doc #	Docket Text
2011-11-23	1	COMPLAINT against defendant U.S. Environmental Protection Agency with receipt number 0865-3034188, in the amount of $350 Non-Jury Demand,, filed by Ameren Missouri. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Original Filing Form Original Filing Form, # 8 Civil Cover Sheet Civil Cover Sheet, (Virtel, James) (Additional attachment(s) added on 11/28/2011: # 9 Summons United States Attorney, # 10 Summons Eric Holder, # 11 Summons EPA) (DLB). Modified on 11/28/2011 (DLB). (Entered: 11/23/2011)
2011-11-23	2	DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE by Plaintiff Ameren Missouri.. (Virtel, James) (Entered: 11/23/2011)
2011-11-28		Case Opening Notification: Summonses issued, 3 at 60 days. Judge Assigned: Hon. Audrey G. Fleissig, U.S. District Judge. The summonses were emailed to James J. Virtel. (DLB) (Entered: 11/28/2011)
2011-12-07	3	ENTRY of Appearance by Andrew J. Lay for Defendant United States Environmental Protection Agency. (Lay, Andrew) (Entered: 12/07/2011)
2011-12-07	4	ENTRY of Appearance by Suzanne J. Moore for Defendant United States Environmental Protection Agency. (Moore, Suzanne) (Entered: 12/07/2011)
2011-12-07	5	NOTICE of Filing of Motion to consolidated by Defendant United States Environmental Protection Agency with case number 4:11cv77 (Attachments: # 1 Exhibit Exh. 1 Motion to Consolidate, # 2 Exhibit Exh. 2 Memorandum in Support of Motion to Consolidate, # 3 Exhibit Exhibit A to Memorandum in Support, # 4 Exhibit Exhibit B to Memorandum in Support)(Lay, Andrew) (Entered: 12/07/2011)
2011-12-08	6	MOTION for Extension of Time to File Answer re 1 Complaint,, or Otherwise Respond to the Complaint by Defendant United States Environmental Protection Agency. (Lay, Andrew) (Entered: 12/08/2011)
2011-12-21	7	MOTION for Leave to File Out of Time by Plaintiff Ameren Missouri. (Attachments: # 1 Exhibit A)(Virtel, James) (Entered: 12/21/2011)
2011-12-22	8	MOTION for Leave to Appear Pro Hac Vice Matthew B. Mock (Filing fee $100 receipt number 0865-3073107)by Plaintiff Ameren Missouri. (Mock, Matthew) (Entered: 12/22/2011)
2011-12-22	9	Docket Text ORDER: Re: 7 MOTION for Leave to File Out of Time by Plaintiff Ameren Missouri (Attachments: # 1 Exhibit A)(Virtel, James); ORDERED GRANTED. Defendant shall have until December 30, 2011, to file a reply. Signed by Honorable Audrey G. Fleissig on December 22, 2011. (AGF) (Entered: 12/22/2011)
2011-12-22	10	MOTION for Leave to Appear Pro Hac Vice Renee Cipriano (Filing fee $100 receipt number 0865-3073233) by Plaintiff Ameren Missouri. (Cipriano, Renee) (Entered: 12/22/2011)
2011-12-22	11	MOTION for Leave to Appear Pro Hac Vice Patricia Brown Holmes (Filing fee $100 receipt number 0865-3073242 by Plaintiff Ameren Missouri. (Holmes, Patricia) (Entered: 12/22/2011)
2011-12-22	12	Docket Text ORDER: Re: 11 MOTION for Leave to Appear Pro Hac Vice Patricia Brown Holmes (Filing fee $100 receipt number 0865-3073242) by Plaintiff Ameren Missouri (Holmes, Patricia Brown); 10 MOTION for Leave to Appear Pro Hac Vice Renee Cipriano (Filing fee $100 receipt number 0865-3073233) by Plaintiff Ameren Missouri (Cipriano, Renee); 8 MOTION for Leave to Appear Pro Hac Vice Matthew B. Mock (Filing fee $100 receipt number 0865-3073107)by Plaintiff Ameren Missouri (Mock, Matthew); All Three Motions ORDERED GRANTED. Signed by Honorable Audrey G. Fleissig on December 22, 2011. (AGF) (Entered: 12/22/2011)
2011-12-29		Receipt 4644025715 in the amount of $100.00 for PRO HAC VICE on behalf of NEAL H. WEINFIELD (CCAM) (Entered: 12/30/2011)
2011-12-29	13	MOTION for Leave to Appear Pro Hac Vice Neal Weinfield (Filing fee $100) by Plaintiff Ameren Missouri. (JWJ) (Entered: 01/04/2012)
2012-01-05	14	Docket Text ORDER Re: 13 MOTION for Leave to Appear Pro Hac Vice Neal Weinfield (Filing fee $100) by Plaintiff Ameren Missouri (JWJ) filed by Ameren Missouri; ORDERED GRANTED. Signed by Honorable Audrey G. Fleissig on January 5, 2012. (SAA) (Entered: 01/05/2012)
2012-01-06	15	ANSWER to 1 Complaint,, With Affirmative Defenses by United States Environmental Protection Agency.(Lay, Andrew) (Entered: 01/06/2012)
2012-01-18	16	DOES NOT CONTAIN ORIGINAL SUMMONS THE ATTY WAS CONTACTED AND WILL REFILE SUMMONS Returned Executed filed by Ameren Missouri. United States Environmental Protection Agency served on 12/12/2011, answer due 1/3/2012., SUMMONS Returned Executed filed by Ameren Missouri. defendantUnited States Environmental Protection Agency served on 12/12/2011, answer due 1/3/2012. (Cipriano, Renee) Modified on 1/19/2012 (JWJ). (Entered: 01/18/2012)
2012-01-18	17	DOES NOT CONTAIN ORIGINAL SUMMONS THE ATTY WAS CONTACTED AND WILL REFILE SUMMONS Returned Executed filed by Ameren Missouri. defendantUnited States Environmental Protection Agency served on 12/14/2011, answer due 2/13/2012. (Cipriano, Renee) Modified on 1/19/2012 (JWJ). (Entered: 01/18/2012)
2012-01-18	18	DOES NOT CONTAIN ORIGINAL SUMMONS THE ATTY WAS CONTACTED AND WILL REFILE SUMMONS Returned Executed filed by Ameren Missouri. (Cipriano, Renee) Modified on 1/19/2012 (JWJ). (Entered: 01/18/2012)
2012-01-18	19	Docket Text ORDER Re: 6 MOTION for Extension of Time to File Answer re 1 Complaint,, or Otherwise Respond to the Complaint by Defendant United States Environmental Protection Agency. (Lay, Andrew) filed by United States Environmental Protection Agency; ORDERED DENIED as moot. Signed by Honorable Audrey G. Fleissig on January 18, 2012. (SAA) (Entered: 01/18/2012)
2012-01-18	20	First MOTION for Summary Judgment by Plaintiff Ameren Missouri. (Cipriano, Renee) (Entered: 01/18/2012)
2012-01-18	21	MEMORANDUM in Support of Motion re 20 First MOTION for Summary Judgment filed by Plaintiff Ameren Missouri. (Cipriano, Renee) (Entered: 01/18/2012)
2012-01-18	22	THIS ENTRY DOESN'T CONTAIN THE EXHIBITS. THE ATTY HAS REFILED WITH EXHIBITS ATTACHED PLEASE SEE #24 FOR CORRECTED ENTRY STATEMENT of Material Facts re 20 First MOTION for Summary Judgment filed by Plaintiff Ameren Missouri. (Cipriano, Renee) Modified on 1/19/2012 (JWJ). (Entered: 01/18/2012)
2012-01-18	23	First MOTION for Hearing re 20 First MOTION for Summary Judgment by Plaintiff Ameren Missouri. (Cipriano, Renee) (Entered: 01/18/2012)
2012-01-18	24	STATEMENT of Material Facts re 20 First MOTION for Summary Judgment filed by Plaintiff Ameren Missouri. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(Cipriano, Renee) (Entered: 01/18/2012)
2012-01-19	25	SUMMONS Returned Executed filed by Ameren Missouri defendant United States Environmental Protection Agency served to U.S. Attorney General on 12/12/2011, answer due 2/13/2012. (Cipriano, Renee) Attorney filing error. Modified on 1/20/2012 (KSM). (Entered: 01/19/2012)
2012-01-19	26	SUMMONS Returned Executed filed by Ameren Missouri defendant United States Environmental Protection Agency served to U.S. Attorney on 12/12/2011, answer due 2/13/2012. (Cipriano, Renee) Attorney filing error. Modified on 1/20/2012 . (KSM) (Entered: 01/19/2012)
2012-01-19	27	SUMMONS Returned Executed filed by Ameren Missouri defendant United States Environmental Protection Agency served to EPA on 12/14/2011, answer due 2/13/2012. (Cipriano, Renee) Attorney filing error. Modified on 1/20/2012 (KSM) (Entered: 01/19/2012)
2012-01-23	28	MOTION for Extension of Time to File Response/Reply as to 22 Statement of Material Facts, 24 Statement of Material Facts, by Defendant United States Environmental Protection Agency. (Lay, Andrew) (Entered: 01/23/2012)
2012-01-23	29	Docket Text ORDER Re: 28 MOTION for Extension of Time to File Response/Reply as to 22 Statement of Material Facts, 24 Statement of Material Facts, by Defendant United States Environmental Protection Agency (Lay, Andrew) filed by United States Environmental Protection Agency; ORDERED GRANTED. Signed by Honorable Audrey G. Fleissig on January 23, 2012. (SAA) (Entered: 01/23/2012)
2012-02-02	30	RULE 16 ORDER This case is assigned to Track: 2 Joint Scheduling Plan due by 3/28/2012. Rule 16 Conference set for 4/4/2012 02:30 PM in Chambers before Honorable Audrey G. Fleissig. Signed by Honorable Audrey G. Fleissig on 2/2/2012. (KSM) (Entered: 02/02/2012)
2012-03-05	31	MEMORANDUM in Opposition re 23 First MOTION for Hearing re 20 First MOTION for Summary Judgment filed by Defendant United States Environmental Protection Agency. (Lay, Andrew) (Entered: 03/05/2012)
2012-03-05	32	MOTION for Summary Judgment and Cross Motion for Summary Judgment, or in the Alternative, to Stay the Case, and EPA's Opposition to Plaintiff's Motion for Summary Judgment by Defendant United States Environmental Protection Agency. (Lay, Andrew) (Entered: 03/05/2012)
2012-03-05	33	MEMORANDUM in Support of Motion re 20 First MOTION for Summary Judgment, 32 MOTION for Summary Judgment and Cross Motion for Summary Judgment, or in the Alternative, to Stay the Case, and EPA's Opposition to Plaintiff's Motion for Summary Judgment filed by Defendant United States Environmental Protection Agency. (Lay, Andrew) (Entered: 03/05/2012)
2012-03-05	34	STATEMENT of Material Facts re 32 MOTION for Summary Judgment and Cross Motion for Summary Judgment, or in the Alternative, to Stay the Case, and EPA's Opposition to Plaintiff's Motion for Summary Judgment filed by Defendant United States Environmental Protection Agency. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Lay, Andrew) (Entered: 03/05/2012)
2012-03-08	35	MOTION for Hearing Requesting a Change of Date for the Rule 16 Scheduling Conference by Plaintiff Ameren Missouri. (Virtel, James) (Entered: 03/08/2012)
2012-03-09	36	Docket Text ORDER Re: 35 MOTION for Hearing Requesting a Change of Date for the Rule 16 Scheduling Conference by Plaintiff Ameren Missouri. (Virtel, James) filed by Ameren Missouri; ORDERED GRANTED. The Rule 16 Conference is rescheduled for Thursday, April 12, 2012 at 2:00 p.m. The parties shall file a proposed joint scheduling plan no later than April 5, 2012. Signed by Honorable Audrey G. Fleissig on March 9, 2012. (SAA) (Entered: 03/09/2012)
2012-03-09	37	MOTION for Extension of Time to File Response/Reply as to 32 MOTION for Summary Judgment and Cross Motion for Summary Judgment, or in the Alternative, to Stay the Case, and EPA's Opposition to Plaintiff's Motion for Summary Judgment by Plaintiff Ameren Missouri. (Virtel, James) (Entered: 03/09/2012)
2012-03-12	38	Docket Text ORDER Re: 37 MOTION for Extension of Time to File Response/Reply as to 32 MOTION for Summary Judgment and Cross Motion for Summary Judgment, or in the Alternative, to Stay the Case, and EPA's Opposition to Plaintiff's Motion for Summary Judgment by Plaintiff Ameren Missouri. (Virtel, James) filed by Ameren Missouri; ORDERED GRANTED. Signed by Honorable Audrey G. Fleissig on March 12, 2012. (SAA) (Entered: 03/12/2012)
2012-03-29	39	REPLY to Response to Motion re 20 First MOTION for Summary Judgment, 32 MOTION for Summary Judgment and Cross Motion for Summary Judgment, or in the Alternative, to Stay the Case, and EPA's Opposition to Plaintiff's Motion for Summary Judgment filed by Plaintiff Ameren Missouri. (Weinfield, Neal) (Entered: 03/29/2012)
2012-03-29	40	STATEMENT of Material Facts re 20 First MOTION for Summary Judgment, 32 MOTION for Summary Judgment and Cross Motion for Summary Judgment, or in the Alternative, to Stay the Case, and EPA's Opposition to Plaintiff's Motion for Summary Judgment filed by Plaintiff Ameren Missouri. (Weinfield, Neal) (Entered: 03/29/2012)
2012-04-03	41	JOINT SCHEDULING PLAN by Plaintiff Ameren Missouri.. (Virtel, James) (Entered: 04/03/2012)
2012-04-06	42	REPLY to Response to Motion re 32 MOTION for Summary Judgment and Cross Motion for Summary Judgment, or in the Alternative, to Stay the Case, and EPA's Opposition to Plaintiff's Motion for Summary Judgment filed by Defendant United States Environmental Protection Agency. (Lay, Andrew) (Entered: 04/06/2012)
2012-04-12	43	Minute Entry for proceedings held before Honorable Audrey G. Fleissig: Rule 16 Conference held on 4/12/2012. Conference held in person. Case Management Order to issue. (FTR Gold: No.) (KSM) (Entered: 04/12/2012)
2012-04-12	44	INITIAL CASE MANAGEMENT ORDER - This case, which involves a request for documents under FOIA, came before the Court for a Rule 16 scheduling conference on April 12, 2012. Currently before the Court are cross motions for summary judgment, and the alternative request of Defendant to stay proceedings in light of the related enforcement action pending before Judge Sippel, Case No. 4:11CV077 RWS. The parties are in agreement that no Rule 26 disclosures or discovery are necessary at this time. Accordingly, IT IS HEREBY ORDERED that no further deadlines shall be set pending the Court's ruling on the pending cross motions for summary judgment. The Court shall set a deadline for the parties to file a joint proposed schedule for completion of the case, as appropriate, following a ruling on the motions for summary judgment. IT IS FURTHER ORDERED that within ten days of the Court's ruling on the motions for summary judgment the parties shall file, as appropriate, a joint status report informing the court of the status of the case and recommending new pretrial and trial deadlines.. Signed by Honorable Audrey G. Fleissig on 4/12/2012. (MRC) (Entered: 04/12/2012)
2012-05-16	45	ORDER: IT IS HEREBY ORDERED , in accordance with Plaintiffs' request for oral argument (Doc. No. 23) and pursuant to Local Rule 4.02, that the Court shall hear oral argument on Thursday, July 12, 2012, at 1:30 p.m. with respect to Plaintiff's Motion for Summary Judgment and Defendant's Cross Motion for Summary Judgment. (Doc. No. 20 and 32.) (In Court Hearing set for 7/12/2012 01:30 PM before Honorable Audrey G. Fleissig.). Signed by Honorable Audrey G. Fleissig on 5/16/2012. (KSM) (Entered: 05/16/2012)
2012-07-05	46	Docket Text ORDER: IT IS HEREBY ORDERED that Oral Argument is rescheduled for Thursday, July 26, 2012 at 9:30 a.m. Signed by Honorable Audrey G. Fleissig on July 5, 2012. (SAA) (Entered: 07/05/2012)
2012-07-26	47	Minute Entry The parties are present for oral argument on plaintiffs motion for summary judgment or in the alternative request for In Camera Review and Production of Vaughn index. The court will take the matter under submission. for proceedings held before District Judge Audrey G. Fleissig: Motion Hearing held on 7/26/2012 re 20 First MOTION for Summary Judgment filed by Ameren Missouri. Court Reporter:Terri Hopwood.) (FTR Gold: No.) (JWJ) (Entered: 07/30/2012)
2012-08-01	48	TRANSCRIPT proceedings of Motion Hearing held on July 26, 2010 before Judge Fleissig. Court Reporter/Transcriber Teri Hopwood, Telephone number 314-244-7988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/22/2012. Redacted Transcript Deadline set for 9/4/2012. Release of Transcript Restriction set for 10/30/2012. (KSM) (Entered: 08/01/2012)
2012-09-25	49	MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs motion for summary judgment is DENIED. (Doc. No. 20.) IT IS FURTHER ORDERED that Defendants Motion for summary judgment is GRANTED. (Doc. No. 32.) IT IS FURTHER ORDERED that Plaintiffs request for attorneys fees is DENIED. A separate judgment will accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 9/25/12. (JWJ) (Entered: 09/25/2012)
2012-09-25	50	JUDGMENT IT IS HEREBY ORDERED, ADJUDGED, and DECREED that judgment is entered on behalf of Defendant and against Plaintiff on the parties cross motions forsummary judgment. Signed by District Judge Audrey G. Fleissig on 9/25/12. (JWJ) (Entered: 09/25/2012)
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