Opinion
CIVIL ACTION NO. 1:CV-93-1482
August 27, 1996
MEMORANDUM
Memorandum Regarding Motion of Generator Defendants to Exclude Supplemental Materials from the Administrative Record
I. Introduction
Before the court is the motion of the Original Generator Defendants ("the Generator Defendants" or "Defendants") to exclude supplemental material from the administrative record. Briefs have been filed and the motion is ripe for disposition.
For purposes of this motion, the Original Generator Defendant group consists of C J Clark America, Inc., The ESAB Group, Inc., The Genlyte Group, Inc., Kemper Industries, Inc., Quebecor Fairfield Graphics, Inc., R.H. Sheppard Co., Inc., and SKF USA, Inc.
II. Procedural History
The United States commenced the instant case in 1993 pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). Subsequently, one of the Original Generator Defendants, the Esab Group, Inc., counterclaimed for judicial review of the Environmental Protection Agency's ("EPA") Record of Decision ("ROD"). On June 28, 1994, the court held that the ROD was subject to judicial review. United States v. Keystone Sanitation Co., Inc., 867 F. Supp. 275, 281-82 (M.D. Pa. 1994).
The instant dispute regarding the contents of the administrative record began when the Generator Defendants sought to depose EPA officials in conjunction with its challenge to the ROD in early 1995. The court withheld ruling on whether it would permit the depositions and directed the parties to brief the issue of discovery beyond the administrative record. In early March 1995, the Generator Defendants notified the court that certain record documents cited by the United States in its discovery brief were not contained in the administrative record at the time the ROD was signed in September 1990, or when counsel for the Generator Defendants had reviewed it pursuant to a Freedom of Information Act ("FOIA") request in late 1993. The United States conceded that it had designated documents as part of the record which had not been compiled at the time of the signing of the ROD. The United States maintained, however, that the additional documents had, in fact, been considered by the EPA in preparing the ROD.
By memorandum and order dated June 31, 1995, the court permitted discovery of EPA officials regarding why the administrative record was not complete at the time of its signing, and the circumstances under which it was supplemented. At the court's direction, on October 16, 1995, the United States certified the contents of the administrative record. Through the instant motion, the Generator Defendants have moved to exclude most of the documents certified.
III. Factual Background
In June 1987, the EPA commenced its remedial investigation ("RI") of the Keystone Sanitation Company Superfund Site ("the Site"). During the course of the RI, the EPA took hundreds of samples from various environmental media at the Site. The RI Report summarized the results of the sampling. The EPA subsequently conducted a Feasibility Study ("FS") to evaluate several remedial alternatives for addressing the Site contamination revealed during the RI. In July 1990, the EPA placed the RI and the FS Reports and the EPA's Preferred Remedial Action Plan for the Site in four local repositories for public review. The EPA opened the public comment period on July 20, and held a public meeting on September 13, 1990 regarding its proposed remedy for the Site. As of August 20, 1990, the EPA index for the administrative record listed 8,614 pages of documents.
On September 30, 1990, the EPA Region III Regional Administrator signed the ROD for the Site. On October 26, 1990, and January 22, 1991, the former Site Remedial Project Manager ("RPM"), Deborah Dewsbury, placed additional documents in the administrative record file at the local repositories and revised the index to reflect these additional materials. These included the ROD, comments received from the public and potentially responsible parties ("PRPs"), the EPA's written responses to the comments ("Responsiveness Summary"), and a transcript of the public meeting held on September 13. All of these documents were generated in advance of, or contemporaneously with, the EPA's issuance of the ROD.
In April 1994, the RPM for the Site, Christopher Corbett, added further documents to the record files located at the repositories. These included chain of custody and lab reports, data validation packages, internal memoranda prepared by the EPA's former site toxicologist, Dr. Debra Forman, documents generated by the State of Maryland and the Commonwealth of Pennsylvania, documents relating to state enforcement efforts, fact sheets, and public notices. All of these materials were generated in advance of the EPA's issuance of the ROD.
In October 1995, at the court's direction, the United States certified the contents of the administrative record. Attached to Christopher Corbett's certification is an index ("1995 index") which lists approximately 85,000 additional pages of documents that the United States maintains are part of the administrative record, although not physically located at the repositories. These include quality assurance/quality control packages ("QA/QC"), technical literature and certain EPA guidance documents. Again, all of these additional documents. were generated before September 30, 1990, the date the EPA issued the ROD.
The Generator Defendants object to the EPA's addition of documents to the administrative record after the signing of the ROD. They contend that the EPA has improperly supplemented the record with materials that were not considered by the decision-makers who selected the EPA's remedy for the Site. Defendants argue that the EPA's post-ROD supplementation violates both CERCLA's and the National Contingency Plan's ("NCP") public participation requirements and that supplementation of the record violates their Fifth Amendment right to due process. In response, the United States maintains that all materials added to the record were considered by the EPA in selecting its Site remedy. The United States contends that neither CERCLA, the NCP, nor due process require it to make public every document relied upon by the EPA in making its remedy selection decision. Moreover, the United States claims that the notice and comment procedures afforded the Generator Defendants adequate due process and, even if they did not, the Generator Defendants had actual notice of the documents to which they now object. Presuming the Defendants had actual notice of the documents would eviscerate their due process claim. The court will address each of the Generator Defendants' arguments in turn.
III. Discussion
A. Addition of Documents Not Relied Upon
The Generator Defendants maintain that the EPA has impermissibly supplemented the administrative record without verifying whether the added documents were in fact relied upon by EPA officials in selecting a remedy for the Site. The parties agree that the EPA may not add to the administrative record documents upon which it did not rely in selecting a response action in order to ensure its decision withstands judicial review. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mutual, 463 U.S. 29, 50 (1983) (courts will not accept agencies' post-hoc rationalizations for agency actions); Camp v. Pitts, 411 U.S. 138, 142 (1973) ("[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."). The United States asserts that all of the materials added to the record were considered either directly or indirectly by the EPA in selecting a remedy for the Site and, therefore, their addition does not constitute improper supplementation. The court will consider separately each group of documents added to the record in evaluating the parties' respective positions on this issue.
The documents added to the record in October 1990 and January 1991 are documents that were generated by the remedy selection process itself prior to the signing of the ROD. These materials include public and PRP comments submitted to the EPA, the transcript of the public hearing, the EPA's Responsiveness Summary, and the ROD itself. The Generator Defendants do not contest the EPA's addition of the ROD and the Responsiveness Summary to the record. (Gen. Defs' Br. in Supp. at 2 n. 2.) The Responsiveness Summary evidences the EPA's consideration of public and PRP comments regarding its proposed Site remedy. As Defendants do not object to the addition of the Responsiveness Summary to the record, their continued exception to the addition of the transcript and the comments themselves is misplaced. Defendants cannot object to the addition of documents in one form where they consider the same documents, in another form, to be an acceptable addition to the record. The court finds Defendants' objection to these documents to be without merit and thus, will not give further consideration to their arguments on this point.
Defendants also do not object to the addition of the second risk assessment report issued on September 5, 1990, which was substituted by the EPA for the first risk assessment report. (Gen. Defs.' Br. in Supp. at 4 n. 13.)
The documents that the EPA added to the record in April 1994 include two memoranda prepared by the then Site toxicologist, Dr. Debra Forman. The United States maintains that the memoranda contain information that the EPA considered in selecting the Site remedy. "While not directly impacting EPA's OU I ROD, which selected a remedy to address the landfill source, ROD, p. 2 AR 304756, EPA did consider these memoranda in determining that a second operable unit investigation was necessary to define the off-site residential well contamination, which determination it documented in the OU I ROD." (U.S. Br. in Oppos. at 6 (emphasis in original).) The United States claims that the EPA is not normally required to include these types of materials in the record unless they contain factual information relied upon by the agency in making its remedy selection decision. See, e.g., EPA's March 1, 1989 "Interim Guidance on Administrative Record for Selection of Response Actions," OSWER # 9833.3A, at 31 ("1989 Interim Guidance"). The United States cites to the ROD generally as evidence that the memoranda were considered by the EPA prior to the signing of the ROD. (U.S. Br. in Oppos. at 11 ("See, e.g., ROD.").) Apparently, the United States expects the court to read the ROD and Dr. Forman's memoranda and ascertain from the EPA's remedy selection whether the EPA relied upon these documents in making its decision. The court declines to undertake such a task. The bases for prohibiting an agency from supplementing the administrative record after a decision has been issued do not justify the exclusion of Dr. Forman's memoranda. These materials, if anything, cast doubt upon the correctness of the agency's decision. The general rule that an agency may not supplement the administrative record after its decision is issued is designed to prevent an agency from adding documents which, although not considered in the decision-making process, bolster its ultimate determination. See Association of Pacific Fisheries v. Environmental Protection Agency, 615 F.2d 794, 811-12 (9th Cir. 1980) (party may not submit "post-decisional information" to sustain agency decision). Since Dr. Forman's memoranda are not materials which tend to bolster the EPA's remedy decision, the court will accept the United States' representation that these documents were considered by the EPA in selecting the Site remedy. (U.S. Br. in Oppos. at 11.)
The United States also cited to page two of the ROD in its brief. Page two of the ROD is a site location map and is of no assistance to the court in its evaluation of the United States' representation regarding the EPA's reliance upon Dr. Forman's memoranda.
The court's acceptance of the United States' representation is strengthened by a document contained in the administrative record which summarizes Dr. Forman's memoranda. (AR 303438-303441.)
In accepting the United States' representation the court does not suggest that an agency's addition of materials to the administrative record which are unfavorable to its decision should be permitted in all instances.
Next the court turns to the majority of documents to which the Generator Defendants object. These documents include the chain of custody materials, lab reports, and validation reports added to the repositories by Christopher Corbett in April 1994 and the QA/QC packages identified in the 1995 index. The Generator Defendants' base their contention that the EPA added these materials to the record without demonstrating that they were actually considered by the agency on Corbett's deposition testimony. When asked how he concluded that the documents listed in the 1995 index had been relied upon by the EPA in selecting its response action, Corbett testified that he based his decision on his "professional judgment." (Corbett Dep. at 68.) He acknowledged that he had no responsibility for the Site prior to the September 1990 signing of the ROD and that he had not discussed with EPA personnel involved in the remedy selection decision what documents they had relied on in selecting a response action. (Id. at 68-69.) Corbett further testified that he had no personal knowledge of whether any of the documents had been considered or relied on by EPA staff in selecting a remedy for the Site. (Id. at 69.)
Specifically, Corbett testified as follows:
Q: What's the basis for your professional judgment that these documents were relied upon or considered?
A: It was my judgment that they may have been considered, but because the remedy was selected several years prior to my knowledge — prior to my involvement, I had to make my own personal judgment on could they have or were they likely to have been relied upon by those individuals at the time.
Q: Okay. So this is basically an educated guess based on your experience as an RPM at other sites?
A: Yes.
(Id. at 69-70.)
The United States maintains that the documents added by Corbett in April 1994 and listed in the 1995 index are documents which "underlie the analytical results summarized in the RI report" which the EPA placed in the repositories early in the comment period. (U.S. Br. in Oppos. at 9.) Moreover, in response to Defendants' challenge, the United States has submitted the declaration of Annette Lage, an EPA Environmental Protection Specialist employed in the agency's Office of Analytical Services and Quality Assurance ("OASQA") in Annapolis, Maryland. OASQA is responsible for performing analyses of environmental samples for the EPA as well as providing oversight for data analyses generated by EPA contractors. OASQA also provides quality assurance oversight for Region III projects. From 1988 until 1995, Lage was the Regional Sample Control Coordinator ("RSCC") for Region III. She first became involved with documents from the Site in 1988 in her capacity as RSCC. As such, Lage was responsible for coordinating, scheduling and tracking field samples requested for various analyses from the Site through EPA's OASQA's laboratory and EPA's Contract Laboratory Program ("CLP"). Her duties included arranging for a laboratory to analyze the samples, coordinating the shipment of samples from the field to the laboratory, and, for CLP laboratories, ensuring that all of the data generated were forwarded to the EPA's data validators for an independent review and assessment of the data. As RSCC coordinator, Lage was responsible for ensuring that CLP laboratories adhered to chain of custody protocols and sample shipping requirements. Lage was also responsible for ensuring that the raw data and other supporting records were inventoried and stored properly in the OASQA warehouse. The following excerpt from Lage's declaration evidences that EPA personnel did consider the information in selecting a remedy for the Site that Corbett added to the record in April 1994 and identified in the 1995 index:
Throughout the scheduling, sampling, and analysis process, tracking numbers are assigned to groups of samples by the RSCC coordinator or OASQA laboratory based on specific EPA or CLP protocols. Based on the tracking number assigned to a group of samples, I am able to ascertain which site these documents belong to and identify when documents were prepared by the laboratories. Thus, for any given site, I can, through the assigned tracking numbers indicate the universe of laboratory documents related to that site. Typically, the presence of a final report for samples which were assigned to and analyzed by the EPA OASQA laboratory, or a data validation report for samples which were assigned to and analyzed by a CLP laboratory, verifies that the sampling information was reviewed by EPA or its contractors.
In the case of almost all of the Keystone documents 1-36 listed in Attachment B to Chris Corbett's October 16, 1995 certification, our office was responsible for confirming that the laboratories analyzed the samples and submitted data documents, and that the EPA protocols for all these documents were followed at each step of the process. . . .
The Data Validation Reports from the Contract Laboratory Project and the Final Reports from the EPA Laboratory provide the procedural history of the Keystone sampling data. These reports indicate whether the sampling data were reviewed, whether protocols were followed for the date, and whether the sampling data are reliable.
The following is a summary of the procedures for sampling data from the time it is collected in the field, based on my experience as an Environmental Protection Specialist. After the sample is collected in the field, the sampler writes down the time and place the sample was taken, as well as any appropriate description of the sample. This information is recorded in a field notebook or field logbook. The sample is sent to a lab. Accompanying the sample are several different types of paperwork: chain of custody, sample shipping log, traffic report, sample tags, and airbills. The chain of custody is the most important in terms of tracking custody of the sample. The lab analyzes the sample. The instruments print out various types of information, known as raw data. For a simple set of twenty samples, there may be hundreds of pages of raw data. The raw data can consist of instrument printouts, calibration checks, chromatogram, mass spectra, etc. The laboratory then uses the raw data to report a sample result. For projects like Keystone, which had numerous samples analyzed through the . . . CLP, there are specific forms used to report these results. The page on which the results for an individual sample appear are called the "Form 1." The raw data and CLP summary forms together make up the lab package. This lab package is then sent to another chemist for review. That chemist is the data validator. The data validator's job is to look at all the laboratory material and assess the usability of the data, and prepare a validation report. The validation report includes a narrative, a data summary report, and supporting documentation.
In the case of CLP data, the data summary report includes the results from the CLP Form 1, but with "qualifiers" added. These qualifiers are letters that tell the data user whether the result is valid or not, and how much confidence may be placed in that number. For example, the qualifier "R" means to reject the sample. The qualifier "J" means the result is usable, although the number is an estimated concentration. The risk assessor (and other date users) use the data from the validation report to generate their own reports, which are incorporated in the Remedial Investigation/Feasibility Study.
(Lage Decl. ¶ 11-14.) The court finds that Lage's declaration demonstrates that the chain of custody materials, lab reports, data validation packages, and other QA/QC documents were considered by EPA personnel prior to the selection of the Site remedy. Defendants appear to concede the significance of Lage's declaration. In response to her statement, they argue merely that the EPA is bound by the prior statements of the individuals designated to testify at deposition regarding the EPA's supplementation of the record. The court agrees that the United States could have avoided the present contest by ensuring that the individuals who certified the contents of the record had either personal knowledge regarding the EPA's consideration of the additional materials or sufficient knowledge concerning the EPA's internal operating procedures to be qualified to state with certainty that the documents were considered in some manner. Nevertheless, the court will accept the evidence presently before it.
Curiously, Defendants also argue that the EPA should not be permitted to add the QA/QC documents to the administrative record because they are materials generated by lower level EPA employees and do not constitute materials that the final decision-maker had before him prior to signing the ROD. These are the same documents whose absence from the record during the public comment period Defendants claim violated their right to due process. These positions are at odds with one another. In any event, the court finds that the administrative record properly consists of materials either directly or indirectly considered by the decision-maker. See Wade v. Dole, 631 F. Supp. 1100, 1107 (N.D. Ill. 1986), aff'd, 813 F.2d 798 (7th Cir. 1987) (administrative record must include all non-privileged documents and materials directly or indirectly considered by agency); Tenneco Oil Co. v. Dep't of Energy, 475 F. Supp. 299, 317-18 (D. Del. 1979) (permitting discovery beyond administrative record of all documents directly or indirectly considered by agency decision-makers); see also Clairton Sportsmen's Club v. Pennsylvania Turnpike Comm'n, 882 F. Supp. 455, 464-65 (W.D.Pa. 1995) ("A document need not literally pass before the eyes of the final agency decision-maker to be considered part of the administrative record.")
The final group of documents to which Defendants object are various technical references and EPA guidance documents cited by Christopher Corbett in the 1995 index. All of these documents were generated prior to September 1990. In response to Defendants' challenge, the United States has submitted a declaration by Corbett in which he states "[b]ased upon my review of the Administrative Record, except for two instances . . . all of the guidance documents and technical literature are cited in the RI or Feasibility Study Reports, or elsewhere in the administrative record sent to the repositories in July, 1990 for public comment prior to selection of the response action." (Corbett Decl. ¶ 13.) Attached to Corbett's declaration is a replica of his October 1995 index of guidance documents and technical literature annotated to reflect the pages of the administrative record sent to the repositories prior to September 1990 which reference the added materials. The court finds that the United States has shown that these documents were considered by the EPA prior to the signing of the ROD and are properly part of the administrative record.
B. EPA's Addition of Documents to the Record Violates CERCLA, the NCP and EPA's Own Internal Guidelines
Corbett notes that there are two documents that he included in the 1995 index for which he could not locate record citations. The first document was entitled "REM V Management Plan Rev. 0, 0-23-87." (Corbett Decl. ¶ 14.) However, his annotated index cites AR 300533 which cites to the "REM V Project Management Plan." Thus, despite Corbett's claim that this document is not cited in the record, the court finds that it is and that its inclusion is proper.
The second document for which Corbett could not uncover a record citation is entitled USEPA, Region III QA Directive (ESD/HWMD), Bulletin No. 0AD009, Field Filtration Policy for Monitoring Well Groundwater Samples Requiring Metal Analysis (April 23, 1990). Nevertheless, Corbett's declaration makes clear that his inclusion of this document in the October 1995 index was proper based on his "conversations with other staff assigned to the Keystone Site, [his] general knowledge of EPA guidance, and [his] review of documents AR 303433, 303441, and 307345." (Corbett Decl. ¶ 15.)
The Generator Defendants maintain that the EPA's addition of documents to the record after the signing of the ROD violates the public participation requirements of both CERCLA and the NCP as well as the EPA's own internal guidelines for assembling an administrative record. Defendants argue that CERCLA, the NCP and EPA guidelines require the EPA to create an administrative record which contains all documents relied upon it in selecting the Site remedy. The United States contends that CERCLA requires the EPA to provide interested parties with a reasonable opportunity to comment on its proposed Site remedy. The United States maintains that this does not mean that the EPA is required to make available to the public every document relied upon by it in selecting its remedy for the Site.
The 1990 NCP is embodied in 40 C.F.R. § 300.1 et seq.
CERCLA requires that the EPA establish "an administrative record upon which [it] shall base the selection of a response action. The administrative record shall be available to the public at or near the facility at issue." 42 U.S.C. § 9613 (k)(1). The Act provides for public participation in the EPA's remedy selection. The EPA is required, at a minimum, to provide:
(i) Notice to potentially affected persons and the public, which shall be accompanied by a brief analysis of the plan and the alternative plans that were considered.
(ii) A reasonable opportunity to comment upon and provide information regarding the plan.
(iii) An opportunity for a public meeting in the affected area, in accordance with section 117(a)(2) (relating to public participation)
(iv) A response to each of the significant comments, criticisms, and new data submitted in written or oral presentations.
(v) A statement of the basis and purpose of the selected action.42 U.S.C. § 9613 (k)(2)(B). At the time of its enactment, the Act required the EPA to "promulgate regulations establishing procedures for the appropriate participation of interested persons in the development of the administrative record." 42 U.S.C. § 9613 (k)(2). In 1990, the EPA had yet to establish regulations in accordance with § 9613(k)(2). As a result, at the time that the EPA was in the process of selecting its remedy for the Site, CERCLA dictated that "the administrative record shall consist of all items developed and received pursuant to current procedures for selection of the response action . . . ." 42 U.S.C. § 9613 (k)(2)(C). The United States maintains that "current procedures" in 1990 did not require the EPA to make the entire administrative record, i.e. every document or reference, available to the public during the comment period.
The Generator Defendants argue strenuously that 40 C.F.R. § 300.800, which requires the EPA to "establish an administrative record that contains the documents that form the basis for the selection of a response action," required the EPA to place in the record file all documents upon which it relied in selecting its remedy for the Site. 40 C.F.R. § 300.800 (a). (Gen Defs.' Br. in Supp. at 8.) They also point to 40 C.F.R. § 300.815 (b) which directs the EPA to provide a public comment period in accordance with § 300.430(f)(3). 40 C.F.R. § 300.815 (b). Section 300.430(f)(3) requires the EPA to make its proposed remedy and "supporting analysis and information" part of the administrative record. 40 C.F.R. § 300.430 (f)(3)(i)(B). As the EPA points out, however, neither § 300.800(a) nor § 300.815 apply to remedial actions where the remedial investigation commenced prior to the promulgation of the 1990 regulations. 40 C.F.R. § 300.805 (d)(1). The 1990 regulations state that "[t]his Subpart applies to all response actions taken under section 104 of CERCLA . . . where the remedial actions were commenced after the promulgation of these regulations." 40 C.F.R. § 300.800 (d). The Subpart to which § 300.800(d) refers is Subpart I which includes §§ 300.800 through 300.825. Since the EPA began its remedial investigation into the Site in 1987, it is not bound by the regulations contained in Subpart I which became. effective in March of 1990. As a result, at the time of the public comment period, the EPA was required to comply with the 1990 regulations "to the extent practicable," 40 C.F.R. § 300.805 (e), and to provide interested parties with a reasonable opportunity to comment upon and provide information regarding its proposed Site remedy, 42 U.S.C. § 9613 (k)(2)(B) (ii).
The term "subpart" in the regulations unmistakably refers to Subpart I in its entirety as opposed to merely § 300.800. This is evidenced by the citation in § 300.800(e) which refers to "paragraph (d) of this section." 40 C.F.R. § 300.800 (e) (emphasis added). Had the drafters intended this reference to be to § 300.800, they would have said "section" rather than "subpart."
In addition, the EPA's response to comments on the proposed 1990 NCP published in the Federal Register notes that "Section 300.800(d) states that the provisions of subpart I apply to all remedial actions where the remedial investigation began after the promulgation of these rules." 55 Fed. Reg. 8802 (1990). The EPA rejected suggestions that Subpart I should apply retroactively stating that:
EPA will adhere as closely as possible to subpart I for sites where the remedial investigation began before these regulations are promulgated. EPA will not, however, require that these sites comply with requirements which, because of the timing of the response action relative to the promulgation of these rules, cannot be adhered to. For example, under the final rule, the administrative record file must be available at the beginning of the remedial investigation phase. If these regulations are promulgated when a site is in the middle of the remedial investigation process, and the administrative record is not yet available, the lead agency cannot at this point comply with these regulations.Id. at 8802-03.
The Generator Defendants' assertion that the United States has made selective use of the 1990 NCP in this litigation is misplaced. Defendants cite to various portions of the ROD as well as the United States' Statement Regarding Expert Evidence Outside the Record as proof that the United States has previously recognized the applicability of the 1990 NCP to this action. The court does not find the United States' prior representations inconsistent with its present posture regarding the inapplicability of § 300.800 et seq. None of the 1990 NCP provisions formerly cited by the United States in this case contain language limiting their retroactive application.
Defendants also argue that the EPA failed to comply with its own 1989 Interim Guidance in omitting the contested materials from the administrative record prior to the public comment period. The 1989 Guidance contains language stating "[a]ll documentation of the selection of a response action should be in the record file when a decision document (i.e., ROD or Action Memorandum) is signed." 1989 Interim Guidance at 8. The United States concedes that the 1989 Interim Guidance was intended to guide RPMs in their selection of documents for inclusion in the administrative record pending the EPA making final its Subpart I regulations. (U.S. Br. in Oppos. at 14 n. 12.) However, the United States asserts that the 1989 Guidance creates no enforceable rights and that the EPA may deviate from the procedures recommended within without notice. See 1989 Interim Guidance at 41. Because the 1989 Interim Guidance does not have the effect of law, the EPA's departure from its recommended procedures does not mandate the exclusion of the contested materials from the record.
The 1989 Guidance contains the following language:
The policies and procedures established in this document are intended solely for guidance of employees of the U.S. [EPA]. They are not intended and cannot be relied upon to create any rights, substantive or otherwise, enforceable by any party in litigation with the United States. EPA reserves the right to act at variance with these policies and procedures and to change them at any time without public notice.
1989 Interim Guidance at 41.
The court finds that the EPA provided Defendants with a reasonable opportunity to comment on and provide information regarding its proposed remedial action plan for the Site. Defendants concede that the EPA held a notice and comment period prior to the signing of the ROD. Defendants submitted 253 comments in response to the EPA's proposed Site remedy. With regard to the documents generated by the public comment period itself, Defendants do not have perpetual right to comment on those materials. See Rybachek v. Environmental Protection Agency, 904 F.2d 1276, 1286 (9th Cir. 1990) (holding that right to comment on EPA's responses to comments would result in "never-ending circle"); City of Stouahton v. Environmental Protection Agency, 858 F.2d 747, 753 (D.C. Cir. 1988) (notice and comment provisions do not generate new opportunity to comment each time agency reacts to comments). Defendants' primarily object to the absence of the chain of custody and lab reports, data validation packages, other QA/QC data, and technical studies and internal guidances from the record at the time that they submitted comments. However, all of these materials were referenced in the documents that were made available to the public prior to the signing of the ROD. Moreover, the data validation materials, lab reports and QA/QC documents underlie the sample results reported in the RI and upon which Defendants had an opportunity to comment. The court does not read CERCLA and the implementing regulations in place in 1990 as requiring the EPA to place every piece of documentation supporting its sample results in the administrative record prior to receiving public comments. Indeed, it appears likely that the procedures for compiling the administrative record and the extent of public participation required were fairly muddled in the time period immediately preceding the finalization of the 1990 NCP.
Hanover Potato Products v. Sullivan, 1:CV-90-0746 (M.D. Pa. June 21, 1990 and M.D. Pa. Aug. 8, 1990), does not require a finding different from the one reached by the court today. The Hanover Potato court found that the Food and Drug Administration's ("FDA") failure to include documents constituting 63 percent of the administrative record in the record file prior to the public comment period regarding a proposed rule was arbitrary and capricious. Its holding was based solely on the FDA's failure to follow its own regulations requiring it to make all data on which it relied available in a public file during the comment period. No such EPA regulation existed during the time when public comments were received concerning the EPA's proposed remedial action plan for the Site. Thus, despite the daunting number of pages omitted from the record, the court can find no legal basis for presuming prejudice to the parties based on the EPA's failure to include the contested additional materials in the record prior to the comment period.
C. EPA's Additions to the Administrative Record Violate Defendants' Fifth Amendment Right to Due Process
Next, the Generator Defendants argue that the EPA has failed to provide them with an opportunity to comment on the materials added to the administrative record since the signing of the ROD, thereby infringing upon their due process rights. Defendants cite PPG Industries, Inc. v. United States, 708 F. Supp. 1327 (Ct. Int'l Trade 1989), in support of their position. In PPG, the Department of Commerce sought to add one document relied upon in making its final determination to the administrative record that was before the court. 708 F. Supp at 1328. The court denied Commerce's motion and remanded the case to the agency so that the comment period could be reopened following the addition of the document to the record. The court noted that "[w]ere the Court to grant Commerce's motion to supplement the record with documents from another investigation . . . the Court would open the possibility that PPG's due process rights would be infringed." Id. at 1332. The court further noted that "[n]either the existence of the document nor the agency's consideration of it were brought to the attention of PPG prior to litigation in this Court." Id. at 1328. Such concerns are not, however, present in the case at bar. Consequently, PPG can be distinguished from the instant case.
As discussed above, Defendants do not have a right to comment on the materials generated during the public comment period. Thus, they cannot maintain a due process claim regarding their inability to comment on the materials added to the record in October 1990 and January 1991. Additionally, as the court has already found, the majority of materials to which Defendants presently object, i.e. data validation reports and other QA/QC materials, were explicitly referenced in materials contained in the record at the time that Defendants submitted their comments. The following passage from the RI illustrates this point.
General procedures used during the sampling and analysis to ensure data quality and validity include field record keeping, sample traffic control, and use of CLP analytical services. Field records were kept in two sample log books. These books were maintained during RI sampling activities and were used to record sample locations, field measurements (e.g., pH, conductivity, hardness), pertinent field observations, and any unusual occurrences or circumstances. Entries were recorded directly and legibly into the field log book and each page was signed and dated.
A laboratory notebook was also maintained by field personnel which was used to maintain field sample inventories and chain-of-custody records. Information recorded included: sample number; sample collection and date; type of analysis; traffic report number; sample tag number; case number; CLP laboratory name; sample shipment date and airbill number.
Environmental sampling involved sample collection, management and tracking. After placing the sample in an appropriate container, sample tags were placed on each container which specified the sample number, sample collection date and time, type of analysis, and other information. Each sample processed under the CLP program must be properly documented to ensure timely, correct, and complete analysis for all parameters requested. Traffic reports represent a permanent record of the sample collected and type of analysis required. Chain-of-custody forms document the transferal of the samples from field personnel to the shipper to the laboratory. These forms provide a means of tracking the sample(s).
(AR 301628-630; see also AR 300456-458 (discussing quality assurance/quality control plan, including data validation process); AR 300463 (discussing field logbooks and chain-of custody procedures).) Christopher Corbett's declaration shows that the technical studies and internal guidances in his 1995 index were also referenced in the record prior to the signing of the ROD. (See AR 102713 (U.S.E.P.A., Interim Guidance on Superfund Selection of Remedy (Office of Solid Waste and Emergency Response), 9355.0-19 (December 24, 1986)); AR 301874 (U.S.E.P.A., 1988a Superfund Exposure Assessment Manual, EPA 540/1-88/001 OSWER 9285.5-1 Water Quality Criteria); AR 301449 (Permit Applications' Guidance Manual for General Facility Standards of 40 C.F.R. § 264, SW-968, October 1983).) The documents that were contained in the administrative record prior to the signing of the ROD gave Defendants actual notice of the existence of the materials underlying the data which were relied on in the EPA's RI and FS, and the technical studies and internal policies considered by the EPA. Defendants' failure to request the documents referenced is fatal to their present claim that the EPA violated their due process rights and to their claim that the EPA did not provide them with a reasonable opportunity to comment on its proposed remedy selection. See Sierra Club v. Costle, 657 F.2d 298, 355, 360, 398-99 (D.C. Cir. 1981) (actual notice renders harmless error arising from agency failure to provide notice in statutorily prescribed fashion); see also Chemical Mfrs. Ass'n v. Environmental Protection Agency, 870 F.2d 177, 201-201, op. clarified on rehearing in part, 885 F.2d 253, (5th Cir. 1989), cert. denied, 495 U.S. 910 (1990) (finding no due process violation where EPA supplemented record with undisclosed data and later offered CMA opportunity to comment, which CMA declined). Had Defendants wished to review these documents which detail the handling and treatment of the samples taken from the Site, they could have requested them. Absent some showing that they did so and the EPA refused their requests, the court finds no merit to Defendants' due process claim with regard to these materials.
In light of the court's finding that the majority of documents which Defendants contest were referenced in the record, Defendants may not credibly claim that they were unaware of the existence of these documents until Christopher Corbett's 1995 certification.
The court's reasoning in this regard also applies to Dr. Forman's memoranda which were summarized in a document available to the public during the comment period. (AR 303438-441.)
IV. Conclusion
In accordance with the foregoing discussion, the court will deny the Generator Defendants' motion to exclude supplemental materials from the administrative record.
An appropriate order will be issued.
MEMORANDUM AND ORDER Order Addressing Esab's Motion for Leave of Court to Seek Discovery of United States Regarding Commingling of Administrative FunctionsI. Introduction
Before the court is the motion of the Esab Group, Inc., for leave to conduct discovery of the United States regarding the commingling of administrative functions. The issues have been briefed and the motion is ripe for disposition.
II. Discussion
Through its present motion, Esab seeks to conduct discovery in order to ascertain which members of the Environmental Protection Agency's ("EPA") staff participated in the administrative activities relating to the Keystone Sanitation Superfund Site ("the Site"). (Esab's Br. in Supp. at 2.) Esab claims that prior deposition testimony of EPA officials suggests that the agency improperly commingled administrative functions in conducting its remedy selection and enforcement actions relating to the Site. Esab claims that the EPA's commingling of investigatory, prosecutory, and adjudicatory functions in the same EPA staff members violates its Fifth Amendment due process rights. The court will deny Esab's motion because it finds that discovery on this issue would be irrelevant given that Esab has failed to demonstrate that the EPA's commingling of administrative functions would constitute a violation of due process.
Esab contends that the EPA's remedy selection and issuance of the Record of Decision ("the ROD") and Section 106 Unilateral Administrative Order ("UAO") constitute an informal adjudication. Esab claims that "constitutional separation-of-functions requirements apply in the context of informal adjudications such as undertaken by EPA in this case." (Esab's Reply Br. at 5 (emphasis in original).) In support of its position, Esab cites In re Murchison, 349 U.S. 133, 136-39 (1955), Wong Yang Sung v. McGrath, 339 U.S. 33, 50-51 (1950), Bethlehem Steel Corp. v. Environmental Protection Agency, 638 F.2d 994 (7th Cir. 1980);Figueroa Ruiz v. Delgado, 359 F.2d 718, 720-24 (1st Cir. 1966), American Cyanamid Co. v. FTC, 363 F.2d 757, 767-68 (6th Cir. 1966), cert. denied, 394 U.S. 920 (1969), Amos Treat Co. v. SEC, 306 F.2d 260, 266 (D.C. Cir. 1962), Wounded Knee v. Andera, 416 F. Supp. 1236, 1241 (D.S.D. 1976), Pales De Mendez v. Aponte, 294 F. Supp. 311, 314 (D.P.R. 1969) and Burhoe v. Whaland, 356 A.2d 658, 659 (N.H. 1976). These cases, Esab contends, support the conclusion that "the constitutional prohibition against the commingling of investigatory, prosecutory and adjudicatory functions in the same staff Persons in the same matter is well established. . . ." (Esab's Reply Br. at 5 (emphasis in original).) However, the cases Esab has cited all involve formal adjudications, and therefore, support its position regarding the prohibition against commingling of administrative functions in that context only. See In re Murchison, 349 U.S. at 133-34 (state trial judge may not also serve as "one-man grand jury"); McGrath, 339 U.S. at 48-51 (immigration and naturalization deportation proceedings must conform with Administrative Procedure Act's requirements for formal adjudications); Delgado, 359 F.2d at 720-22 (due process violation where trial judge acted as both prosecutor and judge); American Cyanamid Co, 363 F.2d at 767-68 (invalidating Federal Trade Commission order overturning hearing examiner's decision where Commission chairman acted as both investigator and judicial officer); Amos Treat Co., 306 F.2d at 262-66 (SEC Commissioner who had participated in investigation of party's violations of Securities Exchange Act could not participate in revocation hearing);Andera, 416 F. Supp. at 1240-42 (tribal judge may not act as prosecutor and judge); Aponte, 294 F. Supp. at 313-15 (trial judge may not also act as prosecutor); Whaland, 356 A.2d at 658-59 (hearing officer in insurance license revocation hearing impermissibly acted as investigator, prosecutor and adjudicator). Thus, although Esab contends that the Constitution's separation-of-functions requirement applies in informal adjudicatory proceedings, it has cited no case law in support of its position.
The court declines to follow the reasoning of the district court in United States v. Hardage, 663 F. Supp. 1280 (W.D. Okla. 1987), also cited by Esab. The court's opinion in Hardage cited no support for its conclusion that the EPA's ROD constituted an informal adjudication. Moreover, the Hardage court relied on Morrissey v. Brewer, 408 U.S. 471, 485-86 (1972), to support its determination that the EPA improperly commingled administrative functions in the remedy selection decision-making process. The court finds that Hardage's reliance onMorrissey is misplaced as Morrissey involved a formal adjudicatory proceeding. Morrissey held that "due process requires that after the arrest, the determination that reasonable grounds exists for revocation of parole should be made by someone not directly involved in the case."Id. at 485.
Esab also relies on Bethlehem Steel Corp. v. Environmental Protection Agency, 638 F.2d 994 (7th Cir. 1980). The Bethlehem Steel court stated that:
the [due process] claim is further affected by the fact that not only is Bethlehem challenging the [EPA's] order regarding the [Delayed Compliance Order ["DCO"] simply because of the commingling of functions of the EPA enforcement attorneys, but it is also alleging that the Agency delayed and reached its decision on the DCO in an effort to improve its position in the on-going enforcement action. In light of these circumstances, we conclude that although the Agency does enjoy certain presumptions of regularity, there exist sufficient questions regarding the propriety of the Agency's procedures to require a remand.638 F.2d at 1010. Esab has not alleged such bias by the EPA in the present context. Therefore, the alleged "combination of investigative and adjudicative functions . . . without more, does not constitute a due process violation." Id. at 1009.
Without adopting Esab's characterization of the EPA's activities relating to the Site as an informal adjudication, the court finds no merit for the contention that due process prohibits the commingling of investigatory, prosecutory and adjudicatory functions in the same EPA staff members. Courts have held that due process does not require "a complete adjudicatory hearing . . . on the issue of the propriety of [the EPA's] response action." United States v. Rohm Haas Co., Inc., 669 F. Supp. 672, 679 (D.N.J. 1987); see also United States v. Iron Mountain Mines, Inc., 812 F. Supp. 1528, 1543-44 (E.D. Cal. 1992) (EPA's informal remedy selection process comports with due process). As due process does not require a formal adjudicatory hearing regarding the EPA's response action, the court is unwilling to find that the distinctly adjudicatory separation-of-functions requirement applies to such proceedings.
Accordingly, IT IS HEREBY ORDERED THAT the motion of the Esab Group, Inc., for leave to conduct discovery of the United States regarding the commingling of administrative functions is DENIED.