U.S. v. Iron Mountain Mines, Inc.

• Decision Date: 30 September 1997
• Docket Number: No. CIV-S-91-768 DFL JFM.,CIV-S-91-768 DFL JFM.
• Citation: 987 F.Supp. 1250
• Parties: UNITED STATES of America, Plaintiff, v. IRON MOUNTAIN MINES, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of California

Page 1250

987 F.Supp. 1250

UNITED STATES of America, Plaintiff, v. IRON MOUNTAIN MINES, INC., et al., Defendants.

No. CIV-S-91-768 DFL JFM.

United States District Court, E.D. California.

September 30, 1997.

COPYRIGHT MATERIAL OMITTED

Paul B. Galvani, James W Matthews, Ropes and Gray, Boston, MA, for Rhone-Poulenc Inc.

Thomas H. Hannigan Jr., Ropes and Gray, Boston, MA, for Rhone-Poulnec Basic Chemicals Co.

Michael Brian Hingerty, U.S. Environmental Protection Agency, San Francisco, CA, David B Glazer, Environmental Enforcement Section, San Francisco, CA, Yoshinori HT Himel, United States Attorney, Sacramento, CA, Martin F McDermott, United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for U.S.

Thomas G Redmon, Wilke Fleury Hoffelt Gould and Birney, Sacramento, CA, for Rhone-Poulenc Basid Chemicals Co.

Margarita Padilla, California State Attorney General, Oakland, CA, Sara J. Russell, Attorney General's Office of the State of California, Oakland, CA, for State of California.

MEMORANDUM OF OPINION AND ORDER

LEVI, District Judge.

The United States moves to limit review of certain response actions selected by the Environmental Protection Agency ("EPA") for the Iron Mountain Mine site to the administrative record. At issue are two Records of Decision, referred to as RODs, specifically ROD 1, which was issued in 1986, and ROD 2, which was issued in 1992.¹ The United States also seeks to preclude supplementation of the record by defendant Rhne-Poulenc Basic Chemicals Company, Inc. The State of California joins the motion. Rhône-Poulenc opposes on the ground that discovery in this case has revealed "a shocking scenario of abuse of power by EPA" and cross moves on the same issues.² R-P Mem & Opp'n at 1.

I.

The Iron Mountain Mine site was listed on the National Priorities List in 1983. Since that time, EPA has been investigating, designing, and implementing responses to the environmental pollution at the site.

From 1983 until 1985, EPA conducted its initial Remedial Investigation ("RI"), which characterized the Iron Mountain Mine site and the pollution found there, and developed its initial Feasibility Study ("FS"), which described and evaluated possible cleanup measures. See 40 C.F.R. §§ 300.68(d), 300.430. Rhône-Poulenc declined to participate in the RI/FS process.³ Sugarek Decl., ¶ 23. In August 1985, EPA issued the FS for public comment. R-P Exh. 1 at 1. The 1985 FS presented six remedial alternatives. On July 25, 1986, the FS was amended by an FS Addendum that included a proposal to fill the mine workings with low-density cellular concrete. R-P Exh. 1 at 1. Rhône-Poulenc submitted comments on the proposed remedies in the FS and the FS Addendum.⁴ Erickson Decl., ¶ 4. EPA responded to all of Rhône-Poulenc's comments, whether they were submitted within the formal public comment period or afterward. Sugarek Decl., ¶¶ 26-28.

On October 3, 1986, EPA issued ROD 1, which formally selected certain interim clean-up measures including: (1) a cap over selected parts of the site; (2) a series of water diversions intended to divert clean water from upstream around the area affected by the acid mine drainage; (3) an evaluation of the feasibility of filling the underground mine workings with low-density concrete; and (4) the enlargement of Spring Creek Debris Dam to 9,000 acre feet, but only if necessary after the other remedies were constructed and evaluated for their effectiveness.⁵ R-P Exh. 1.

EPA delayed implementing ROD 1 for 60 days so that Rhône-Poulenc and other potentially responsible parties ("PRP") could submit alternative remedies. Ultimately, EPA rejected the alternative remedies proposed by the PRPs. Moreover, EPA ultimately abandoned some of its own selected remedies, such as the low-density cellular concrete remedy. Erickson Decl., ¶¶ 7, 8.

The administrative record for ROD 1 was compiled and indexed in 1988. Sugarek Decl., ¶ 13. The administrative record is made up of 359 documents. Sugarek Decl., ¶ 14. Included in the administrative record are reports on the data collected at the Iron Mountain Mine site; the RI/FS and documents relating to the development of the RI/FS; documents relating to the development of alternative remedies; and documents pertaining to meetings, correspondence, and other communications between EPA and other state and federal agencies. Sugarek Decl., ¶¶ 15, 20. The administrative record also includes comments and proposals submitted by Rhône-Poulenc and the other PRPs, as well as EPA's responses to those comments and proposals. Sugarek Decl., ¶¶ 15, 16. Approximately one-third of the documents in the administrative record were either submitted by or addressed to Rhône-Poulenc or one of the other PRPs. Sugarek Decl., ¶ 19.

On September 30, 1992, EPA issued ROD 2 to address acid mine drainage discharging from the underground mine workings, through the Richmond and Lawson Portals, into the Boulder Creek watershed. Rhône-Poulenc participated extensively throughout the entire remedy selection process. Indeed, EPA deferred issuing ROD 2 for approximately one year to allow Rhône-Poulenc an extended opportunity to collect site data, perform engineering studies, and develop and evaluate remedial alternatives. Sugarek Decl., ¶ 54. Rhône-Poulenc's participation included the submission of its own RI/FS and the presentation of its alternative cleanup plan at a public meeting convened by EPA to present EPA's proposed plan. Sugarek Decl., ¶ 49. The alternative plan proposed by Rhône-Poulenc was to plug all of the mine portals, permit the underground mine workings to fill with water, and then neutralize the water. Erickson Decl., ¶ 11. In ROD 2, EPA ultimately rejected Rhône-Poulenc's alternative plan in favor of: (1) the collection and treatment of acid mine drainage from the Richmond and Lawson Portals; (2) the disposal of sludge generated by the treatment plant; and (3) the capping of seven waste piles.⁶ R-P Exh. 36 at 3-4.

As with ROD 1, the administrative record for ROD 2 was compiled and indexed by Rick Sugarek. Sugarek Decl., ¶ 38. It consists of 2,648 documents and includes the same types of documents as the record for ROD 1. Sugarek Decl., ¶¶ 38, 43. Again, many of the documents in the administrative record — approximately 20 percent — were either submitted by or addressed to Rhône-Poulenc or one of the other PRPs. Sugarek Decl., ¶ 45.

II.

Section 113(j) of CERCLA provides that judicial review of EPA's remedy selection decisions must be based on the administrative record, applying the arbitrary and capricious standard.⁷ 42 U.S.C. § 9613(j); see Washington State Dept. of Transportation v. Washington Natural Gas Co., 59 F.3d 793, 802 (9th Cir.1995) (applying 42 U.S.C. § 9613(j)); United States v. Princeton Gamma-Tech, Inc., 817 F.Supp. 488, 491 (D.N.J1993); but see United States v. Hardage, 663 F.Supp. 1280 (W.D.Okla.1987). An agency's decision is arbitrary and capricious if:

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it would not be ascribed to a difference in view or the product of agency expertise.

Inland Empire Public Lands Council v. Glickman, 88 F.3d 697 (9th Cir.1996) (quoting Motor Vehicle Mfgrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). The factors that Congress intended EPA to consider when selecting a remedy under CERCLA are set forth in the national contingency plan ("NCP"). See 42 U.S.C. § 9604(a)(1).

In providing for deferential review on the administrative record, CERCLA conforms to established rules of administrative law. Princeton Gamma-Tech, 817 F.Supp. at 492 (citing the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)); United States v. Seymour Recycling Corp., 679 F.Supp. 859, 861 (S.D.Ind.1987) (citations omitted). The statutory rule of deference reflects Congress' judgment that, unlike a reviewing court, the EPA has the specialized knowledge and expertise needed to choose the appropriate cleanup method. Washington Natural Gas, 59 F.3d at 802; United States v. Akzo Coatings of America, Inc., 949 F.2d 1409, 1424 (6th Cir.1991); Princeton Gamma-Tech, 817 F.Supp. at 491-93.

A. Constitutionality of § 113(j)

Rhône-Poulenc challenges § 113(j) on the ground that it violates Article III and the Due Process Clause of the Constitution.⁸ Neither of these constitutional challenges is persuasive. EPA's remedy selection process does not violate Article III because it is subject to judicial review, albeit deferential review, and because remedy selection by the EPA does not threaten the integrity of the judicial role in our scheme of government. See e.g., Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 587, 105 S.Ct. 3325, 3337, 87 L.Ed.2d 409 (1985) ("when Congress selects a quasi-judicial method of resolving matters that `could be conclusively determined by the Executive and Legislative branches,' the danger of encroaching on the judicial powers is reduced") (citations omitted).⁹

Rhône-Poulenc's due process argument has been addressed and rejected twice already in this litigation by Judge Schwartz. Other courts have come to the same conclusion. Seymour Recycling, 679 F.Supp. at 863-65; United States v. Rohm & Haas Co., Inc., 669 F.Supp. 672, 679-80 (D.N.J.1987). "The constitutional requirement of due process is flexible and `calls for such procedural protections as the particular situation demands.'" Seymour Recycling, 679 F.Supp. at 864-65 (quoting Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976)). As the court explained in Rohm & Haas, 669 F.Supp. at 680-81, EPA's remedy selection processes provide adequate procedural protections to a PRP without providing a formal trial-type adjudication In...