Opinion
CIVIL ACTION NO. 1:CV-93-1482
July 31, 1995
MEMORANDUM
I. Introduction
In this action under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607 (a) (hereinafter CERCLA, § 107(a)), the Generator Defendants have sought to depose officials of the Environmental Protection Agency (EPA) who were involved in preparing the Record of Decision (ROD) and compiling the administrative record underlying the ROD. The Generator Defendants theorize that additional discovery is needed to understand how the administrative record supports the remedy chosen by the EPA to address the hazardous waste at the Keystone Site. Before the courts are briefs filed by the Generator Defendants and the United States of America at the direction of the court, as well as other correspondence to the court on the matter.
II. Background
The issue of whether and/or to what extent the court should allow discovery beyond the administrative record in this case has been brewing almost since its inception. By memorandum and order dated June 28, 1994, the court ruled that the EPA's filing of the § 107(a) action against the Defendants subjected the ROD and Unilateral Administrative Orders to judicial review. The court later directed the United States to respond to the Generator Defendants' interrogatory seeking the names of EPA officials involved in preparing the administrative record. Still later, the Generator Defendants noticed the depositions of certain EPA officials. The court then withheld ruling on whether it would permit depositions of the officials, or any other discovery beyond the administrative record, pending briefing of the issue.
By letter dated March 7, 1995, which was shortly after the parties completed the briefing, counsel for the Generator Defendants reported to the court that certain record documents the United States had cited to in its brief were not, in fact, contained in the administrative record when the ROD was signed by the EPA in 1990, or when counsel reviewed it pursuant to a Freedom of Information Act Request in late 1993. Shortly, thereafter, the court conducted the March 17, 1995, case management conference. Although the conference was devoted primarily to development of a settlement strategy, the court reserved time to discuss the administrative record dispute. There, the United States conceded that documents in addition to what were compiled as the administrative record at the time of its signing are now designated as part of the record, but maintained that those documents were, in fact, considered by the EPA in preparing the ROD. At the end of the conference, the parties suggested and the court considered permitting additional briefing on this issue.
After the conference, the issue was put aside for a time, in light of the court's issuance of a broad stay of discovery for the duration of the period to be devoted to settlement efforts. (See Order of March 21, 1995.) The close of that period has now arrived. Having reviewed the issue, the court finds no need for additional briefing at this time, and will resolve the matter on the record before the court.
III. Discussion
As the parties are aware, the general rule is that when court conducts judicial review of a decision issued by an administrative agency, the material to be reviewed is limited to the administrative record, absent some qualifying circumstances. CERCLA itself codifies this general rule, in that it expressly limits judicial review to the administrative record, with the qualification that "otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court." See 42 U.S.C. § 9613 (j)(1); see also Princeton Gamma-Tech, 31 F.3d 138, 149-50 (3d Cir. 1994). It is the defendant's burden to demonstrate such inadequacies in the record. See U.S. v. Princeton Gamma-Tech, Inc., 817 F. Supp. 488 (E.D. Pa. 1993) (overruled on other grounds, 31 F.3d 138 (3d Cir. 1994)). In reviewing the ROD, the court must uphold it unless the objecting party can demonstrate by reference to the administrative record that the EPA's decision was arbitrary and capricious or otherwise not in accordance with law. 42 U.S.C. § 3613 (j)(2). Princeton Gamma-Tech, 31 F.3d at 149.
In their brief, the Generator Defendants initially seem to suggest that there is a simple answer to the question of whether the court should permit depositions of EPA officials in this case. The Generator Defendants suggest that discovery and judicial review beyond the administrative record are accepted practice when additional evidence would be relevant to whether the agency considered all relevant issues, or adequately explained its decision, and/or where evidence beyond the administrative record would assist the court in understanding complex issues. They propose, in essence, that because relevance for purposes of discovery is to be broadly construed, and because supplemental evidence may be considered in reviewing the administrative record in some circumstances, they should be permitted to take supplemental depositions to illuminate the EPA's decision in this case. The Generator Defendants point to several decisions, which they optimistically interpret as authority for this proposition. (See Brief of Generator Defendants in Support of Taking Discovery Beyond the Administrative Record (hereinafter, "Brief of Generator Defendants"), at 2-5.)
Later in their brief, the Generator Defendants seem to concede that they must show more than relevance and complexity of issues in order to obtain the depositions they seek. They contend that there are numerous issues left unresolved by the administrative record. They claim that discovery on these issues will assist them and the Court in determining whether the EPA considered all relevant factors in devising a remedy for the Keystone Site and, ultimately, whether the agency acted arbitrarily and capriciously in issuing the ROD.
The United States responds in sum that evidence outside of the Administrative Record which challenges the EPA's selection of the remedy is rarely admissible and, therefore, discovery to obtain such evidence is improper. The United States urges that the Generator Defendants have failed to show that any exception to the general rule is implicated in this case. (See United States' Response to Generator Defendants' Brief Seeking to Take Discovery Beyond the Administrative Record (hereinafter "Brief of United States"), at 1, 4-7.)
The Generator Defendants' proposed approach is, of course, more lenient than that endorsed by the relevant case law. In fact, under fundamental principles of judicial review of agency actions, courts are justified in looking beyond the administrative record in only limited circumstances. Such justification might arise where: (1) judicial review is impeded because the record fails to explain the agency's action, see Camp v. Pitts, 411 U.S. 138, 142-143 (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). As noted, it is the defendant's burden to show that one of these deficiencies exists. Further, except in rare circumstances, if one of these deficiencies is demonstrated, the proper course is to remand the matter to the agency for additional investigation or explanation. Florida Power Light Co. v. Lorion, 470 U.S. at 744. Courts generally are not justified in conducting a de novo inquiry and reaching their own conclusions about the matter under review. Id.
This is not to say that inquiry into the thinking behind an administrative action is never appropriate. As the Supreme Court indicated in Overton Park, it may sometimes be necessary and permissible for a district court to require some explanation from an administrative agency to determine whether it acted within the scope of its authority or if its action was justified. Although a district court may require the administrative officials who participated in making a decision to give explanatory testimony in certain circumstances, the Supreme Court cautions that this is usually to be avoided. Overton Park, 401 U.S. at 420. If, however, the agency findings are insufficient or lacking, this may be the only way to accomplish effective judicial review. Id. But where the agency did make proper findings at the same time as the decision was made, there must be a strong showing of bad faith or improper behavior before such inquiry can be made. Id. The Overton Park Court also indicated that if an agency did not prepare adequate findings contemporaneous with its decision, it may do so at a later time, but that, as "post hoc rationalization," such findings would be subject to critical review. See Overton Park, 401 U.S. at 421-21.
In this case, the Generator Defendants focus on six subject areas in the administrative record, which they claim show that the EPA's ROD in this case is not adequately supported in the administrative record, and cannot be fully understood on the basis of the record itself. These points, and the United States' response to them, are as follows:
(1) The Generator Defendants seek discovery on whether the EPA properly considered and resolved the concerns of EPA toxicologist Debra Forman about the final risk assessment, which was revised following her internal criticism of sampling procedures and risk calculation methods. (Brief of Generator Defendants, at 7.) The United States responds with cites to the administrative record indicating such concerns were resolved, including one which states that modifications made to the risk assessment "did not change the total risk at the site from the [previously assigned] risk range and therefore did not change the remedial decision requiring a response action." (Brief of United States at 7.)
(2) The Generator Defendants seek discovery on whether the EPA failed to evaluate more efficient and cost-effective remedies, such as landfill closure under state law, and work to be performed under a preexisting consent decree. (Brief of Generator Defendants, at 7.) The United States responds with cites to the administrative record indicating that alternative methods were considered, including state landfill closure requirements. The record further indicates that the Generator Defendants submitted comments on the closure alternative, and that it was, in fact, adopted as a component of the EPA's selected remedy. The United States also cites to a portion of the administrative record that reveals the EPA's consideration of the preexisting consent decree. (Brief of United States at 8.)
(3) The Generator Defendants seek discovery on whether the EPA actually selected "applicable" and "relevant and appropriate" requirements (known in CERCLA jargon as "ARARs"), as required by the law and EPA guidance documents, and whether the EPA used ARARs appropriately and considered all relevant factors in the I remedy selection process. The Generator Defendants aver that neither the EPA's Remedial Investigation ("RI") nor its Feasibility Study ("FS") actually selected ARARs, although the FS did list many and use them to evaluate remedial alternatives. The Generator Defendants concede that the ROD "appears" to have selected ARARs, although it does not include many that were used to evaluate and reject remedial alternative in the FS. (Brief of Generator Defendants, at 7.) The EPA responds that ARARs are indicated in the administrative record, as are EPA's consideration of the Generator Defendants' comments on them. The EPA also responds that the list of proposed ARARs was made public, and the Generator Defendants had an opportunity to comment thereon. (Brief of United States, at 8.)
(4) The Generator Defendants seek discovery as to whether the EPA considered all relevant factors in characterizing the hydrogeology and groundwater flow for the Keystone Site, which they maintain were insufficiently characterized in the ROD and RI. They aver that the record shows that groundwater pumping tests were conducted in a rainstorm that prevented accurate calculation of the relevant factors and that apparently no direct measurements of porosity or hydraulic conductivity were taken. These deficiencies, they urge, are compounded by the vacillation in the RI between two alternative models of groundwater flow. The United States responds that these concerns are all addressed in the administrative record. The EPA did not use the groundwater pumping tests due to the rainstorm, but relied instead upon Keystone's own Buchart-Horn data, which the EPA examined and found sufficient. As to porosity and hydraulic conductivity, the United States points to areas in the administrative record that show that it appropriately relied upon values reported in the literature, and utilized transmissivity coefficients established in Buchart-Horn's pump test, which are more accurate than hydraulic conductivity measurements, and which reflect hydraulic conditions in the aquifer. Finally, the United States points to areas in the administrative record that explain why use of two models of groundwater flow is appropriate.
(5) Generator Defendants seek discovery on whether the EPA properly characterized background conditions at the Keystone Site and considered those conditions when calculating the risk at the Site. They aver that the administrative record indicates that certain inorganic contamination resulted from "background" conditions unrelated to activity at the Site, but that the EPA included testing results related to these contaminants in the risk calculation. The United States responds with cites to the administrative record that reflect the EPA's consideration of these issues, explain its decisions and thought processes regarding the technical procedures to be used in re-analyzing the risk, identify contaminants of concern, and provide groundwater data supporting the selection of contaminants of concern.
(6) The Generator Defendants seek discovery regarding the EPA's data-management practices to determine whether data were handled properly in accordance with standard industry practices and whether the EPA considered all appropriate data qualifications in its risk assessment. The Generator Defendants aver that the administrative record does not contain chain-of-custody forms or a field logbook or laboratory notebook for the data upon which the risk is based. The United States responds that the administrative record clearly demonstrates that all data utilized were subject to stringent Quality Assurance/Quality Control ("QA/QC") and contains numerous chain of custody forms. Because field logbooks and laboratory notebooks are voluminous, it is the EPA's policy not to physically place these in the administrative record sent to the repositories or maintained in the regional offices, but they are made available upon request and are considered part of the record. The United States avers that consistent with this policy, it has produced hundreds of pages of validation packages in the Administrative Record, which contain summaries, validation letters, and EPA's assessments of the data quality and relevant supporting documents. The United States offers to provide copies of the underlying log books and notebooks at the Generator Defendants' request.
At this point, the Generator Defendants have not convinced the court that discovery of EPA officials is necessary on these issues. The Generator Defendants' assertions, and the United States' responses to them, speak for themselves. Based on these assertions, the court cannot say that the Generator Defendants have satisfied their burden of showing that the administrative record fails to explain the EPA's action, or was otherwise inadequate in general, or that the EPA failed to consider all relevant factors, or that it acted improperly or in bad faith. The court will deny permission to take the depositions of EPA officials on these six issues.
The court is in receipt of correspondence from counsel for the Commonwealth of Pennsylvania Department of Environmental Resources (DER), requesting, in essence, that the court include its officials in any order regarding discovery beyond the administrative record. The court agrees that it is appropriate to do so, and will limit discovery of DER officials to the same extent that discovery of EPA officials will be limited.
However, in addition to the alleged deficiencies set forth in their main brief, the Generator Defendants maintain that the administrative record was incomplete at the time it was signed, and may still be incomplete. The United States does not, apparently, deny that the record has been added to since its signing. Accordingly, there is more than a reasonable basis for believing that the administrative record was incomplete, and may still be so. See Texas Steel Co. v. Donovan, 93 F.R.D. at 621. In any case, the court believes it is appropriate to obtain a thorough explanation from the appropriate EPA officials on this one issue. Therefore, the court will permit the Generator Defendants to conduct discovery of appropriate EPA officials for the limited purpose of inquiring about their reasons for failing to include all the relevant documents in the administrative record at the time it was signed, and the process by which they decided to include additional documents.
The court cautions the Generator Defendants, however, that this is not to be construed as license for a discovery free-for-all. As the Texas Steel Co v. Donovan court indicated, when there is a perceived problem with the adequacy of the administrative record, further discovery should be directed to affidavits or testimony providing additional explanations of the reasons for the agency actions. Such discovery should be merely explanatory of the original record and should neither seek nor contain new rationalization for the agency's action. See Texas v. Steel Co., 93 F.R.D. at 621.
The court's denial of permission to take discovery on the other six issues at this time does not mean that nothing other than the administrative record can be utilized to determine whether the EPA's chosen remedy in this case was the result of arbitrary and capricious decisionmaking. To help in its review, the court can bring in experts to gain a better understanding of the subject area, or to enlighten it as to what the agency could have considered, but did not. See County of Bergen v. Dole, 620 F. Supp. 1009, 1059 (D.N.J. 1985) ("plaintiffs may properly submit their own expert reports in an effort to demonstrate that the agency decision was arbitrary and capricious"), aff'd, 800 F.2d 1130 (3d Cir. 1986); Zisel v. Prudential Ins. Co., 845 F. Supp. 949, 952 (E.D.N.Y. 1994); Elf Atochem North America, Inc. v. United States, 882 F. Supp. 1499, 1502-03 (E.D. Pa. 1995). A court may review outside expert evidence in cases involving very technical matters with which it may have little experience. Use of outside evidence does not constitutede novo review so long as the Court does not use the outside evidence to determine the rightness or wrongness of the agency's decision, but instead uses it solely to evaluate whether the administrative record supports the agency's decision. Id. Whether or not the court will find need of such outside expert evidence remains to be seen, and need not be decided at this juncture
The court is also in receipt of recent correspondence from the Generator Defendants concerning when full judicial review of the administrative record should be accomplished. The court believes that it should be commenced imminently, as it is likely to facilitate settlement of the litigation. The court will contact Liaison Counsel for the Generator Defendants to arrange a telephone conference regarding judicial review, with the understanding that Liaison Counsel will make the arrangements with other counsel to be included in the conference.
IV. Conclusion
The court will not permit discovery of EPA or DER officials on the six issues raised by the Generator Defendants at this time. The court will permit discovery limited to the question of why the administrative record was not complete at the time of its signing, and the circumstances under which it has been supplemented. During the conference call to be arranged in the near future, the court will discuss which officials may be deposed and the substance of and limitations on the discovery to be permitted. An appropriate order will be entered.