Opinion
Civil Action No. 1:CV-93-1482.
June 21, 1996
ORDER
In accordance With the accompanying memorandum of law, IT IS HEREBY ORDERED THAT:
(1) The Generator Defendants are permitted to submit expert testimony regarding the differences between hexavalent and trivalent chromium and why the EPA's use of hexavalent chromium was arbitrary and capricious;
(2) The Generator Defendants shall submit the evidence referenced in paragraph (1) in connection with the motion for summary judgment challenging the ROD as arbitrary and capricious;
(3) On or before July 8, 1996, the United States shall file a response to the Generator Defendants' motion to exclude supplemental materials from the record;
(4) On or before July 12, 1996, the Generator Defendants shall file a reply brief in support of their motion;
(5) On or before July 19, 1996, the court will issue its decision on Defendants' motion;
(6) On or before August 2, 1996, the parties shall file cross-motions for summary judgment regarding the ROD;
(a)Defendants shall file one cross-motion for summary judgment challenging the EPA's remedy selection as arbitrary and capricious with a supporting brief of not more than seventy-five (75) pages;
(b)The United States shall file a brief of not more than seventy-five (75) pages in support of its cross-motion;
(7) On or before August 23, 1996, the parties shall file responsive briefs of not more than fifty (50) pages;
(8) On or before September 4,, 1996, the parties shall file reply briefs of not more than twenty-five (25) pages;
(9) Any party seeking to file a brief in excess of the page limits set forth above shall file a motion with the court at least one week before the brief is due, stating the amount of pages by which they wish to exceed the limitations set forth herein.
MEMORANDUM Memorandum Concerning Whether the Court Will Review or Seek Expert Evidence Outside the Administrative Record
Before the court are the Generator Defendants' and the Keystone Defendants' Statements of Challenge to the Environmental Protection Agency's ("EPA") Record of Decision ("ROD") filed pursuant to the court's order of September 21, 1995, as subsequently amended. Defendants filed the statements to enable the court to discern the appropriateness of reviewing evidence outside the administrative record in connection with its review of the ROD. In response to Defendants' statements, the United States has filed a document entitled "Statement Regarding Expert Evidence Outside the Record." The court has reviewed the parties' submissions and is prepared to rule on the issue before it. For the reasons stated below, except for one limited exception, the court finds that Defendants have not demonstrated that consideration by the court of evidence beyond that contained in the administrative record is warranted.
The court will refer to both the Generator Defendants and the Keystone Defendants collectively as "Defendants" unless otherwise noted.
I. Background
By order and memorandum dated June 28, 1994, the court ruled that the EPA's filing of the § 107(a) action against Defendants subjected the ROD and the Unilateral Administrative Orders to judicial review. United States v. Keystone Sanitation Co., Inc., 867 F. Supp. 275, 230-82 (M.D. Pa. 1994). The issue or the extent to which the court would permit discovery beyond the administrative record was subsequently addressed by the court in its June 31, 1995, order in which it denied the Generator Defendants' request to depose EPA officials except for the limited purpose of seeking information regarding the EPA's supplementation of the administrative record after the signing of the ROD. The depositions took place in accordance with the court's September 21, 1995, order, as subsequently amended.
The September 21 order also notified the parties that the court intended to undertake a phased approach to its review of the ROD. The court determined that such an approach would permit it to ascertain, as matters developed, the need, if any, for expert testimony outside the record in connection with its review of the ROD. The purpose of directing the Generator Defendants to submit their statement of challenge was to enable the court to make such a determination. The court directed the Generator Defendants to (1) "identify every conclusion or other feature of the ROD that they claim is unsupported by the record or otherwise inconsistent with the National Contingency Plan, (2) "explain the specific reasons for each identified challenge to the ROD," and, (3) "as to every identified challenge . . . specifically and concisely identify any expert evidence outside the record relied upon by the [m] . . . [in] making their determination that a challenge is appropriate." 9/21/95 Order at 2-3. After receiving communication from the Generator Defendants in which they sought clarification of the September 21 order, the court further directed that the Generator Defendants' statement was "not to provide . . . expert evidence itself . . . [or] legal briefing or persuasive argument until further notice." 9/27/95 Order at 2.
Despite the court's instruction regarding the form and content of the Generator Defendants' statement of challenge, the submission before the court fails to identify the expert evidence outside the record that the Generator Defendants would rely upon in making their challenge to the ROD, and closely resembles a legal brief, albeit a brief without citations. At the outset of their statement of challenge, the Generator Defendants note "[t]he factual component of each challenge was developed with assistance from Marilyn Hewitt, P.G., and Bruce Molholt, Ph.D. . . . . If permitted to testify, Ms. Hewitt and Dr. Molholt are prepared to offer their expert opinions on, and explanations of, the factual components of this Statement." (Generator Defendants' Statement of Challenge (hereinafter "Gen. Defs.' Statement") at 5-6.) The statement goes on to explain that in order to "avoid needless repetition, the Generator Defendants have not separately stated in each section of their Statement the facts and opinions to which their experts are prepared to testify." (Id. at 6 n. 10.) The United States has urged the court to strike both the Generator Defendants' and the Keystone Defendants' submissions because of their failure to abide by the court's July 21, September 21, and September 27 orders.
Despite Defendants' failure to follow the court's directions regarding the content of their statements, the court will not strike their filings. The tenor of Defendants' statements and the United States' response have forced the court to examine the administrative record in detail in order to ascertain whether consideration of outside evidence is proper in conducting its review of the ROD. In undertaking this inquiry, the court is mindful of the limited instances in which the use of supplemental evidence in the course of judicial review of agency decisions is proper. As the court has already stated, it would be justified in looking beyond the administrative record if: "(1) judicial review is impeded because the record fails to explain the agency's action, see Camp v. Pitts, 411 U.S. 138, 142-43 (1973); (2) the record is incomplete, see Texas v. Steel Co., 93 F.R.D. 619, 621 (N.D. Tex. 1982); (3) the agency failed to consider all relevant factors, see Florida Power Light Co. v. Lorion, 470 U.S. 729, 744 (1985); or (4) there is a strong showing that the agency engaged in improper behavior or acted in bad faith, see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971)." 7/31/95 Order at 6. It is Defendants' burden to show that one of these deficiencies exists. Elf Atochem North America, Inc. v. U.S., 882 F. Supp. 1499, 1502 (E.D. Pa. 1995). The court also examined the administrative record with an understanding that there may be "highly technical or arcane [subject] areas of which the [c]ourt may not have much experience." Id. at 1503. In such a case, consideration of outside evidence would be appropriate not to evaluate the correctness of the EPA's remedy selection, "but solely to gain a better understanding of the subject area, or to enlighten [the court] as to what the agency could have considered but did not." Id. at 1502-03 (citations omitted). The court finds that except for one limited instance, none of the above factors warrant the consideration of outside evidence in connection with its review of the ROD.
II. Discussion
In declining to permit the introduction of expert evidence beyond the administrative record except in one limited area, the court does not find it necessary to address each of the arguments advanced by Defendants in support of their position that the EPA's remedy selection is arbitrary and capricious. Defendants' arguments are too numerous and this issue is not presently before the court. Moreover, as the United States has noted, most of Defendants' statements detail alleged errors by the EPA in selecting its remedy for the site. (See e.g. Gen. Defs.' Statement at 14-16 (EPA failed to conduct proper fate and transport analysis); id. at 18-19 (EPA erred in failing to characterize landfill waste); id. at 19-20 (EPA used incorrect sample results in calculating site risk); id. at 20 (EPA incorrectly calculated hazard index for contaminants of concern);id. at 21-23 (EPA used flawed methodology in calculating exposure concentrations); id. at 23-31 (EPA failed to screen out various exposure concentrations in conducting risk assessment); id. at 32-36 (EPA erred in overstating toxicity and resulting risk from various contaminants of concern); id. at 36-37 (EPA failed to conduct adequate sampling of data used to calculate risk); id. at 37-39 (EPA committed error in not filtering water samples for metals); id. at 42-44 (EPA failed to properly identify remedial action objectives for the site); id. at 44-47 (EPA erred in selecting "applicable" and "relevant and appropriate" requirements). To the extent that Defendants seek to introduce evidence because it tends to demonstrate the "rightness or wrongness" of the EPA's remedy selection, their attempts must fail. Elf Atochem, 882 F. Supp. at 1503. Thus, the court will discuss only those areas of challenge that arguably fall within one of the five exceptions to the general prohibition against consideration of outside evidence in connection with judicial review of an administrative agency's decision.
A. Failure to Consider Noels' Point-of-Use Treatment System
In challenging the ROD, it is apparent that Defendants will argue that the EPA failed to consider the existence of the Noel well onsite water treatment system in determining that the well constitutes an unacceptable risk. (Gen Defs.' Statement at 11-12.) The United States responds by stating that it considered the existence of the Noels' point-of-use treatment system in its risk assessment, but that various factors lead it to conclude that the system was inadequate to remediate the contaminated aquifer or decrease the toxicity, mobility, or volume of the migrating plume. The United States points to excerpts from the administrative record in support of its position. (EPA's Statement at 13, 15.)
The court finds that Defendants have not sustained their burden of demonstrating either that the record fails to explain the EPA's decision regarding the importance it attributed to the existence of the Noels' water treatment system, or that the EPA failed to consider the existence of the system in conducting its risk assessment. The parties' differences regarding the weight the EPA attached to the existence of the Noels' water treatment system do not warrant the introduction of outside evidence. Additionally, the court does not find that its understanding or evaluation of the administrative record would benefit from the introduction of expert testimony concerning the Noels' water treatment system. Accordingly, the court will not permit the introduction of outside evidence on this issue.
B. Evidence Which Could Aid the Court in Understanding and Evaluating the Administrative Record
Together, Defendants point to five areas in which they feel "expert testimony and opinion could be of particular value for the Court." (Gen. Defs.' Statement at 15 n. 24, 21, n. 33, 24 n. 39, 32 n. 56; see also Keystone Defs.' Statement at 7, 8.) The court understands Defendants to suggest that these five areas are ones which require the court to gain an understanding of complex or technical subject matters and, therefore, expert testimony would be helpful.
After an initial review of the administrative record the court does not find that the introduction of supplemental evidence is necessary in order for it to be able to assess the legitimacy of Defendants' challenges or for the court to evaluate the administrative record. For example, Defendants challenge the EPA's failure to conduct an adequate fate and transport analysis, alleging that as a result of the EPA's inadequate analysis, there is insufficient evidence in the administrative record to support the EPA's estimated future exposure concentrations. (Gen Defs.' Statement at 15.) Other than arguing generally that expert evidence would be of assistance to the court in evaluating the adequacy of the record on this issue, Defendants have proffered no specific evidence in support of their claim. The same is true for their assertion that expert testimony would aid the court in evaluating their challenges concerning the EPA's use of flawed methodology in calculating exposure concentrations, its failure to screen out various contaminants prior to conducting its risk assessment, and the EPA's errors in conducting its toxicity analyses. Except as set forth below, the court does not find that the introduction of supplemental evidence would assist it in evaluating any alleged inconsistencies or inadequacies in the administrative record relating to these issues. Moreover, as discussed supra these challenges involve alleged errors by the EPA in selecting a site remedy. Thus, it appears that Defendants seek to introduce expert evidence addressing the rightness or wrongness of the EPA's decisions on these matters. This is not a permissible basis for permitting supplementation of the record in the course of the court's review of the ROD.
The Keystone Defendants' suggestion that evaluation of the EPA's failure to collect unfiltered groundwater samples requires consideration of outside expert testimony has already been rejected by the court in the context of its decision to prohibit Defendants from deposing EPA officials regarding this issue.
There is, however, one area in which the court believes supplemental evidence would be of assistance to it in the course of its review of the ROD. The court finds that in order to understand the EPA's use of hexavalent chromium when estimating chromium risk, the court will permit Defendants to provide the court with supplemental expert testimony relating to the differences between hexavalent and trivalent chromium, and why the EPA's use of hexavalent chromium in this context was arbitrary and capricious. See County of Bergen v. Dole, 620 F. Supp. 1009, 1059 (D.N.J. 1985) The court recognizes the United States' position that its chosen remedy is not driven by chromium, and, therefore, expert testimony on this issue would be irrelevant. However, the possibility that this evidence might prove irrelevant does not preclude the court from considering it in making that ultimate determination.
C. Evidence Indicating that the Administrative Record Was Incomplete at the Time the ROD Was Signed
The court has already found that in light of the EPA's concession that the administrative record was supplemented after being signed, there is a reasonable basis for believing that the administrative record was incomplete, and may in fact still be so. 7/31/95 Order at 12-13. This was the basis for the court's decision that discovery on this limited issue was proper. In their statement of challenge, the Generator Defendants have raised the issue of whether at the time the ROD was signed, the EPA had in its possession and reviewed quality control materials. The Generator Defendants claim that these documents provide the necessary evidentiary foundation for the sample results used. by the EPA in the Remedial Investigation Report and the Baseline Risk Assessment Report. Without the quality control materials, Defendants maintain, the ROD and the remedy selected were unsupported at the time they were issued.
Currently pending before the court is the Generator Defendants' motion to exclude from the administrative record all documents that the EPA added after the ROD was signed. The order accompanying this memorandum will direct that briefing on Defendants' motion resume. If the court ultimately excludes these materials from the record, it is reasonable to assume that the Generator Defendants might seek to introduce evidence obtained through discovery relating to this issue in connection with their challenge to the ROD. Therefore, the court will address whether it will permit the Generator Defendants to submit such evidence at the time it issues its decision on Defendants' motion.
III. Conclusion
The court does not find that Defendants have met their burden in establishing the applicability of any one of the exceptions to the general prohibition against consideration of evidence outside of the administrative record in connection with judicial review of an administrative agency's decision.
In the accompanying order, the court has set a briefing schedule for the Generator Defendants' motion to exclude supplemental material from the administrative record and for judicial review of the ROD. The court found it unnecessary to contact the parties prior to setting a schedule, given that they have previously apprised the court of their positions regarding how the challenge to the ROD should proceed. The court finds that the appropriate means for Defendants to challenge the EPA's remedy is via a motion for summary judgment challenging the EPA's remedy selection as arbitrary and capricious. See Preserve Endangered Areas of Cobb's v. U.S. Army, 915 F. Supp. 378, 383-84 (N.D. Ga. 1995). The court will permit only one motion to be filed challenging the EPA's remedy. Also, based on the United States' August 18, 1995, letter to the court, it anticipates that the United States will file a cross-motion for summary judgment and has allowed for such in drafting a briefing schedule.
An appropriate order will be issued by the court.