Case No. VFA-0682, 28 DOE ¶ 80,183

August 28, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: American Friends Service Committee

Date of Filing: June 28, 2001

Case Number: VFA-0682

This Decision and Order concerns an Appeal that the American Friends Service Committee (hereinafter referred to as the Committee) filed from a determination issued to it by the Department of Energy’s (DOE) Oak Ridge, Tennessee Operations Office (Oak Ridge). In this determination, Oak Ridge informed the Committee that it failed to locate documents responsive to two requests for information that the Committee filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would require Oak Ridge to conduct a further search for responsive materials.

I. Background

In the Committee’s November 3, 1999 FOIA request, it sought information concerning “access to and copies of all documentation from both the DOE and Goodyear Atomic Corporation from 1969 to the present which addresses the deposit, presence, transportation and/or impact of radioactive and other materials at the community landfill in Uniontown, Ohio (known as either the 'Industrial Excess Landfill’ 'IBL,’ 'Kittinger landfill,’ and/or 'Kittinger dump’). ” The Committee’s November 4, 1999 FOIA request sought information concerning “access to and copies of all documentation from 1966 to the present related to the transportation and/or disposal of radioactive materials from the centrifuge plant operated by the Goodyear Atomic Corporation for the federal government located at Wingfoot Lake in Suffield Township in Ohio.” On May 23, 2001, Oak Ridge issued a determination letter regarding both FOIA requests. Oak Ridge’s determination letter stated that a search had been conducted and no documents responsive to the Committee’s requests could be found. See Determination Letter. On June 26, 2001, the Committee filed its present Appeal with the Office of Hearings and Appeals. In the Appeal, the Committee challenges the adequacy of the search conducted by Oak Ridge.

II. Analysis

The FOIA requires that documents held by federal agencies generally be released to the public upon request. Following an appropriate request, agencies are required to search their records for responsive documents. We have stated on numerous occasions that a FOIA request deserves a thorough and conscientious search for responsive documents, and we have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., David G. Swanson, 27 DOE ¶ 80,178 (1999); Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). In cases such as these, “[t]he issue is not whether any further responsive documents might conceivably exist but rather whether the government’s search for responsive documents was inadequate.” Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original).

To determine whether an agency’s search was adequate, we must examine its actions under a “standard of reasonableness.” McGehee v. CIA, 697 F.2d 1095, 1100-01, modified in part on rehearing, 711 F.2d 1076 (D.C. Cir. 1983). This standard “does not require absolute exhaustion of the files; instead it requires a search reasonably calculated to uncover the sought materials.” Miller v. Department of State, 779 F.2d 1378, 1384-95 (8th Cir. 1985). Furthermore, the determination of whether a search was reasonable is “dependent upon the circumstances of the case.” Founding Church of Scientology v. National Security Agency, 610 F.2d 824 (D.C. Cir. 1979).

One request concerns DOE’s radioactive waste management activities at the Goodyear Aerospace facility at Wingfoot Lake. The other request concerns waste shipments to the industrial landfill in Uniontown, Ohio, which is located near Wingfoot Lake. Oak Ridge referred both requests to its Environmental Restoration and Waste Management Organization, which searched all facilities under Oak Ridge’s jurisdiction in Piketon, Ohio; Weldon Spring, Missouri; Newport News, Virginia; the Oak Ridge Gaseous Diffusion Plant, Oak Ridge National Laboratory and the Y-12 Weapons plant in Oak Ridge, Tennessee; and the offices of its contractors. Oak Ridge also contacted individuals for background information on the work and record holders for any responsive records.

Oak Ridge was informed that the only DOE work performed at the Wingfoot Lake facility was the centrifuge project from approximately 1980 through 1984. All DOE official agency records on the project were archived according to DOE record managers at Oak Ridge. Oak Ridge employees familiar with this project have indicated that those archived records contain no information regarding the disposal of radioactive material from the Wingfoot Lake facility. August 21, 2001 Memorandum of Telephone Conversation between Amy Rothrock, Oak Ridge, and William Schwartz, Office of Hearings and Appeals. Some classified records from the late 1970's through early 1980's on the centrifuge project at the Wingfoot Lake facility were located in an Oak Ridge classified vault, but they deal only with project development and design, not waste management. See July 31, 2001 e-mail message from Amy Rothrock, Oak Ridge, to Toni Brown, Office of Hearings and Appeals.

Oak Ridge also indicated that Oak Ridge's waste management organization had no separate records of any waste shipments to the Kittinger landfill, such as manifests listing sanitary wastes or radioactive wastes. Any DOE waste from the DOE work at the Wingfoot Lake facility was designated classified waste, according to the DOE site representative assigned to the centrifuge project between 1980 and 1984. All classified waste would have been shipped to the Gaseous Diffusion Plant at Piketon, Ohio, for burial in a DOE classified burial ground, not shipped to a local industrial landfill. Finally, an Oak Ridge official stated that radioactive materials were not used at the Wingfoot Lake facility during the centrifuge project.(1)

Given the facts presented to us, and particularly the representation that no radioactive materials were used in the DOE work performed at Wingfoot Lake, we find that Oak Ridge conducted an adequate search, reasonably calculated to discover documents at Oak Ridge and the Piketon, Ohio facilities that were responsive to the Committee’s request. The fact that no responsive documents were located, despite this extensive search, does not render the search inadequate. Consequently, we will deny the Committee’s appeal.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by the American Friends Service Committee, Case No. VFA-0682, on June 28, 2001, is hereby denied.

(2) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to 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 located or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: August 28, 2001

(1)We suggest that the Committee contact Goodyear Aerospace directly to obtain the information it seeks regarding work Goodyear may have performed for other entities, or contact other agencies for which the work was performed. The Committee may also want to contact the Nuclear Regulatory Commission (NRC) about any radioactive materials licensing or permitting of the facility for types of work other than the DOE work. The Committee may also want to check the township, county or State public records in Ohio, to see whether the industrial landfill was granted a permit to receive radioactive wastes. Finally, we have been informed that this landfill is an Environmental Protection Agency (EPA) Superfund site. The EPA may have records on any radioactive wastes deposited in the industrial landfill and where they originated from.