ELR Citation: ELR 21367
No(s). s. 92-7458, 94-0662 (E.D. Pa. Apr 6, 1995)

The court holds that it will review the adequacy of response actions the U.S. Environmental Protection Agency (EPA) selected in connection with the cleanup of the Meyers Property Superfund site solely on the basis of the administrative record, and will uphold the remedy chosen in EPA's 1990 record of decision (ROD) unless found to be arbitrary and capricious or otherwise not in accordance with the law. Under §113(j)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), whether a court may consider any supplemental materials in reviewing the adequacy of a response action is governed by "otherwise applicable principles of administrative law," which include exceptions to the rule that review is limited to the administrative record. The court holds that this case does not fit into the "prediction exception," because defendant responsible party has not provided any support from the 1990 ROD or case law for its proposition that EPA's decision in this case is based on a prediction. The 1990 ROD is not a prediction and, unlike the cases defendant cites, this case does not involve a regulation or decision whether to enforce a consent decree between EPA and a potentially responsible party. The court also holds that there is no support for the proposition that it should consider after-developed evidence from treatment studies or elsewhere, because the question is not whether EPA was right or wrong, but whether its decision was made without caprice. Accordingly, the court will base its decision solely on the administrative record.

The court notes, however, that there still may be a place for experts in its review and that use of this outside evidence does not change the review to a de novo one, so long as the court does not use the evidence to determine the rightness and wrongness of the Agency's decision, but solely to evaluate whether there is anything in the record to support it. The court notes that although much of defendant's expert's report appears to be based on recent information or inappropriately states an opinion as to whether EPA's decision was right or wrong, much could be helpful to the court. For example, parts that address possible inconsistencies in EPA's reasoning that could demonstrate arbitariness, or other parts that contain technical information, such as definitions, could aid the court in understanding and evaluating the administrative record. The court holds that the cases the government cites for the proposition that outside evidence is never admissible, nor even discoverable, in arbitrary and capricious review cases are inapplicable here. Those cases involved expert or factual evidence that addressed the rightness or wrongness of the agency decision. The court next denies the government's request for a protective order limiting the scope of discovery to the administrative record. The government has not adequately given specific examples or articulated reasons sufficient to justify a particular need for a protective order under Fed. R. Civ. P. 26(c)(4).

[Related decisions in this litigation are published at 25 ELR 20585 and 20673, and 24 ELR 20352.]

Counsel for Plaintiff
William J. Kennedy, Eli R. Brill
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch St., Philadelphia PA 19103
(215) 994-4000

Counsel for Defendant
Brud Rossmann
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000