Case No. VFA-0271, 26 DOE ¶ 80,178

April 14, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Nancy Donaldson

Date of Filing: March 17, 1997

Case Number: VFA-0271

This Decision and Order concerns an Appeal that Nancy Donaldson filed from a determination that was issued to her by the Safety Manager (the Manager) at the Bonneville Power Administration (BPA). The Manager issued that determination in response to a request for information that Ms. Donaldson submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in volume 10 of the Code of Federal Regulations, Part 1004. The Appeal, if granted, would require the Manager to conduct a further search for documents responsive to the request.

Background

In her FOIA request, Ms. Donaldson sought access to all documents pertaining to any occupational exposure of her late husband, Don Donaldson, to asbestos or any other known carcinogen during his tenure as a BPA employee from 1972 to 1986. In response to this request, the Manager provided Ms. Donaldson with the results of asbestos testing performed at nine BPA facilities during the years 1985 through 1991 and product inventory sheets compiled in 1990 at two BPA locations. In his determination letter, the Manager stated that no additional documents responsive to Ms. Donaldson's request existed. He explained that prior to 1989, products used in BPA facilities were not documented by product name, company, form or container size. According to the Manager, records of this type were not maintained until approximately 1990, when the BPA performed its first Hazardous Materials Inventory as required by Occupational Safety and Health Administration (OSHA) regulations. The Manager also stated that he conducted an informal survey of BPA employees whose jobs were similar to Mr. Donaldson's and who worked at several of the facilities at which Mr. Donaldson was employed. According to the Manager, the results of this study were mostly

inconclusive as to the names and manufacturers of the products that these employees used or encountered during their tenure with the BPA. The surveyed employees did indicate, however, that they used alcohol-based aerosols during the course of their employment.

In her Appeal, Ms. Donaldson contends that the Manager's search for responsive documents was inadequate. In support of this claim, she points out that the Manager's response did not include the results of any asbestos testing prior to 1985. In addition, Ms. Donaldson states that the documents provided to her do not mention transite paneling, even though "through discussions with [Mr. Donaldson's] co-workers," she learned that her late husband "regularly and continuously was required to work on, in, and around components and equipment where transite paneling/board was installed and milled just prior to his required, assigned duties." Appeal at 1. Transite paneling contains asbestos.

Analysis

In responding to a request for information under the FOIA, it is well established that an agency must "conduct a search reasonably calculated to uncover all relevant documents." Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (Truitt). "The standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of files; instead it requires a search reasonably calculated to uncover sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985); accord Truitt, 897 F.2d at 542. The fact that the results of a search may not meet with the requester's expectations does not necessarily mean that the search was inadequate. Robert Hale, 25 DOE ¶ 80,101 at 80,501 (1995). Instead, in evaluating the adequacy of a search, our inquiry generally focuses on the scope of the search that was performed. See, e.g., Richard J. Levernier, 25 DOE ¶ 80,102 (1995).

In order to evaluate the scope of the search, we contacted the BPA. We were informed that the search for responsive documents included each site at which Mr. Donaldson worked and at which files of any type were maintained.(1) The files of the BPA District Headquarters and Safety Office were searched, and Ms. Donaldson's request was referred to Clayton Environmental, the certified industrial hygiene firm that performed the asbestos testing at BPA facilities during the years 1985 through 1991. See memorandum of April 3, 1997 telephone conversation between Gene McClelland, BPA and Robert Palmer, OHA Staff Attorney.

In her Appeal, Ms. Donaldson argues that the absence of testing data for years prior to 1985 is evidence of an inadequate search. In support of this contention, she claims that the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq., required the BPA to conduct tests to determine the level of asbestos exposure in its facilities. However, the portion of that Act that concerned testing for hazardous materials in the workplace did not apply to the federal government. See 29 U.S.C §§ 651 (definition of "employer"), 655. The testing of federal buildings for asbestos was not legislatively mandated until the passage of the Asbestos Hazard Emergency Response Act of 1986, 15 C.F.R §§ 2641 et seq. Ms. Donaldson's claim that the absence of pre-1985 asbestos testing data is evidence of an inadequate search is therefore without merit.

Ms. Donaldson also claims that the BPA's search was inadequate because it did not include documents concerning the presence of transite paneling at the facilities at which Mr. Donaldson worked. In response to this argument, the BPA points out that Ms. Donaldson's request was for documents relating to the exposure of her husband to carcinogens or toxic materials. The BPA contends that the asbestos fibers in transite paneling are "non-friable" in nature, i.e., that there is no risk of exposure unless the paneling is cut or otherwise disturbed. See memorandum of April 3 telephone conversation between Mr. McClelland and Mr. Palmer. However, in Ms. Donaldson's Appeal, she indicates that she is interested in receiving documents concerning this paneling because her husband allegedly worked in areas where the paneling had recently been milled and installed. In view of these statements, the BPA has agreed to search for documents concerning the presence of transite paneling at the facilities at which Mr. Donaldson was employed. We will therefore remand this portion of the Appeal to the BPA so that this search can be performed.

It Is Therefore Ordered That:

(1) The Appeal filed by Ms. Nancy Donaldson, Case Number VFA-0271, is hereby granted as set forth in paragraph (2) below, and is in all other respects denied.

(2) This matter is hereby remanded to the Safety Manager at the Bonneville Power Administration. Within 30 days of the date of this Decision, the Manager will conduct a search for documents concerning the existence of transite paneling at the BPA facilities at which Mr. Donaldson worked, and will issue a new determination to Ms. Donaldson based upon the results of that search.

(3) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to the provisions of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district in which the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 14, 1997

(1)Some of the locations at which Mr. Donaldson worked were unmanned facilities, such as power transmission stations.