ELR Citation: ELR 20105
No(s). 91-10771-MA (D. Mass. Jun 19, 1991)

The court grants a protective order for communications among the U.S. Attorney's office, the Environmental Protection Agency (EPA), and the Army Corps of Engineers relating to the Corps' issuance of a permit under Federal Water Pollution Control Act §404 for the construction of a residuals landfill in wetlands as part of the cleanup of Boston Harbor. The communications include notes of EPA personnel on conversations with Corps personnel, internal EPA memoranda on the Corps' consideration of a site for the landfill, letters from the U.S. Attorney's office to the Corps, a draft letter from the Corps to the Massachusetts Water Resources Authority, notes of U.S. Attorney and Department of Justice (DOJ) conversations with the Corps, and memoranda and electronic mail messages among DOJ attorneys. After examining these documents in camera, the court first holds that all of the documents, except six U.S. Attorney letters and the Corps draft letter, do not belong in the administrative record because Corps personnel never saw them, and therefore, they could not have been considered in the Corps' decision to issue the permit. The court further holds that four of the remaining six U.S. Attorney letters and the draft Corps letter do not belong in the administrative record, although the Corps had seen them, because the Corps did not consider them in issuing its permit. The court next holds that it will not look at any of these documents outside the record in its review of the Corps' permitting decision, because none of them provides substantial evidence of bad faith. Finally, the court holds that the two remaining U.S. Attorney letters are shielded from discovery by the attorney-client privilege, because the letters reveal that the U.S. Attorney was acting as a lawyer and was engaged in giving the Corps legal advice with respect to reasonably anticipated litigation. Also, the letters were marked "attorney-client communication, privileged and confidential," and there is no indication that they were disclosed to third parties.

Counsel for Plaintiffs
Steven D. Anderson
33 Mt. Vernon St., Boston MA 02108
(617) 523-1624

Counsel for Defendants
Steven H. Goldberg
100 1st Ave., Boston MA 02129
(617) 242-6000