Summary
reviewing an EPA response action and refusing to "permit supplementation of the record absent a showing that it is explanatory and not intended to invoke new material into the case"
Summary of this case from Emhart Indus., Inc. v. New Eng. Container Co.Opinion
8:01CV500
June 20, 2003
MEMORANDUM AND ORDER
Before the court is the plaintiff's motion for a ruling on the appropriate standard of review of the Environmental Protection Agency's ("EPA") response actions and to limit discovery to the administrative record. Filing No. 144. The United States has filed this action alleging that the defendants are responsible for clean-up costs associated with the Colorado Avenue Subsite in Hastings, Nebraska, under the Comprehensive Environmental, Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9613(j). The defendants object to the plaintiff's motion on the grounds that the request to this court to determine the standard of review is premature and that the request for limited discovery is not appropriate. I have carefully reviewed the record, the briefs of the parties, and the relevant case law. I conclude that the plaintiff's motion should be denied.
With regard to the first issue, whether the court should rule as a matter of law that it will review the adequacy of the response actions taken by the EPA under the arbitrary and capricious standard, I agree with the defendants that such a request is unnecessary and premature at this time. The law in this area states: "(2) Standard. In considering objections raised in any judicial action under this chapter, the court shall uphold the President's decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious. . . ." 42 U.S.C. § 9613(j)(2). I agree with the United States that this is the appropriate standard to be applied in a CERCLA case with regard to response actions. I agree with the defendants that the statute speaks for itself and does not require any additional declaratory ruling. If there are issues that fall outside of the § 9613(j)(2) arbitrary and capricious standard, I will address the scope of review for those individual issues at the appropriate time. There are no such issues that are ripe and before me at this point in time.
The United States also requests this court to issue an order restricting the scope of defendants' discovery to those issues which would relate to the response actions in the administrative record. The United States has proposed a protective order that would effectuate its request. It appears that the United States is concerned that certain depositions of EPA employees regarding issues relating to remedy decisions or response actions would be outside the administrative record. The law provides:
(1) Limitation
In any judicial action under this chapter, judicial review of any issues concerning the adequacy of any response action taken or ordered by the President shall be limited to the administrative record. Otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court.42 U.S.C. § 9613(j)(1). The United States points this court to the House Report on this section which states "limiting judicial review of response actions to the administrative record expedites the process of review, avoids the need for time-consuming and burdensome discovery, reduces litigation costs, and ensures that the reviewing court's attention is focused on the criteria used in selecting the response." H.R. Rep. No. 99-253, pt. 1, at 81 (1985); reprinted in 1986 U.S.C.C.A.N. 2835, 2863. See also S. Rep. No. 99-11, at 57 (1985) (similar language).
The United States contends that since the court review must be on the administrative record, the discovery should be limited to that which is in the administrative record. The United States relies on United States v. Princeton Gamma-Tech, 817 F. Supp. 488, 494 (D.N.J. 1993), which was a CERCLA case that dealt with a protective order limiting discovery on EPA's remedy selection. The court in that case concluded that there are no grounds for a de novo review of EPA's remedy, so there is consequently no need for discovery on the remedy selection which is outside the administrative record. See also United States v. Wastecontrol, 730 F. Supp. 401, 405 (M.D.Fla. 1989) (court entered a discovery order prohibiting discovery outside the record on EPA response action); United States v. Seymour Recycling Corp, 679 F. Supp. 859, 865-66 (S.D.Ind. 1987) (review of administrative record eliminates need for discovery, and remedy for failure to make complete recovery is remand, not discovery).
Reversed on other grounds at 31 F.3d 138 (3rd Cir. 1994); overruled by Clinton Co. Comm. v. U.S.E.P.A., 116 F.3d 1018 (3rd Cir. 1997), on other grounds.
Only in very narrow circumstances can this court go beyond the administrative record. Northcoast Env. Ctr. v. Glickman, 136 F.3d 660 (9th Cir. 1998). These circumstances include (1) the agency did not consider all relevant factors; (2) the agency has relied on documents not in the record; (3) supplementation is necessary to explain technical terms or complex subject matter; or (4) there is a strong showing that the agency engaged in improper behavior or acted in bad faith. Id. at 665. The burden of proof in this regard is on the defendant. Arkansas Poultry Fed. v. U.S.E.P.A., 852 F.2d 324, 325 (8th Cir. 1988).
Defendants, of course, oppose any restrictions on their scope of discovery. First, defendants argue that they will be denied material that will help them defend against this lawsuit. Second, they argue that the United States has not set forth reasons why it would suffer any undue burden or expense if discovery is allowed to proceed. Third, § 9613(j) specifically states that "otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court." Fourth, defendants are allowed to conduct discovery regarding liability and cost issues, and in that respect defendants submit that the additional discovery they intend to do is a minor amount.
Defendants agree that there are the four situations outlined above that would allow supplementation of the administrative record. However, defendants point out that a court can allow depositions if it would be helpful in reviewing the administrative record for explanatory purposes where complex and technical issues are involved. United States v. Amtreco, Inc., 806 F. Supp. 1004, 1007 (D. Ga. 1992). Defendants argue that because the administrative record in this case consists of 50 four-inch binders, explanatory guidance would assist the court. See United States v. City of Aberdeen, 1996 Westlaw 408134 (N.D.Miss. 1996) (court allowed discovery even though review limited to administrative record).
I agree that the review by this court on response actions is limited to an arbitrary and capricious standard based upon the administrative record. The review in this case requires deference to the EPA actions. I also agree that the parties can under certain circumstances supplement the record. However, I disagree that defendants are prohibited from conducting limited discovery that relates to the administrative record. Regarding the response actions, I am going to allow limited discovery that is related to the administrative record, but I warn defendants that I will not permit supplementation of the record absent a showing that it is explanatory and not intended to invoke new material into the case. Further, the parties should attempt to resolve all discovery disputes prior to involving the court. However, if the United States, during future discovery, believes that the defendants are conducting discovery substantially beyond the record and which is in violation of the intent of this order, the United States may contact the magistrate in this case for further rulings. The same is true for the defendants, if they believe the United States is hindering discovery permitted under this order.
THEREFORE, IT IS ORDERED that the plaintiff's motion for a protective order, Filing No. 144, is hereby denied as set forth herein.