US v. Amtreco, Inc.
| Citation | 806 F. Supp. 1004 |
| Decision Date | 13 November 1992 |
| Docket Number | Civ. A. No. 90-31-VAL (WDO). |
| Parties | UNITED STATES of America, Plaintiff, v. AMTRECO, INC., et al., Defendants. |
| Court | U.S. District Court — Middle District of Georgia |
Frank L. Butler, III, Macon, Ga., Valerie Ann Lee, Heidi E. Weckwert, Washington, D.C., for U.S.
Howard Bridges Slocumb, Berrien L. Sutton, Homerville, Ga., for Amtreco, Inc., James L. Dickerson.
Alan M. Wolper, Charles A. Perry, Atlanta, Ga., for American Telephone and Telegraph, Western Elec.
J. Converse Bright, Valdosta, Ga., for Lee Engineering & Const. Co.
Before the court is defendants' motion for supplementation of the administrative record. Defendants' original motion for supplementation was denied by this court by order of September 24, 1992; however, the court permitted defendants to submit specific documents for the court to consider for supplementation. Defendants have responded to this order by submitting eight actual documents as well as an extensive list of other documents to be added to the administrative record.
Under 42 U.S.C. § 9613(j)(1), in CERCLA cases, the court is limited to the administrative record in reviewing the Environmental Protection Agency's ("EPA") selection of the remedy used to remove hazardous waste from a contaminated site. Whether the court can consider any supplemental materials outside the administrative record is governed by general principles of administrative law. § 9613(j)(1).
Supplementation of an administrative record is only allowed in the following circumstances: (1) the record is so inadequate to explain the agency action that it "effectively frustrates judicial review"; (2) the record is incomplete in that it does not contain documents considered by the decision-maker; (3) the agency has failed to consider relevant factors; or (4) there is a strong showing that the agency engaged in improper behavior or acted in bad faith. See Animal Defense Council v. Hodel, 840 F.2d 1432 (9th Cir.1989); Texas Steel Co. v. Donovan, 93 F.R.D. 619 (N.D.Tex.1982). These exceptions are to be narrowly construed, and defendants have a heavy burden to show that supplementation is necessary. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).
Defendants contend that the administrative record in this case is incomplete in that numerous documents should have been included in the record which were not. This argument is based in part upon their claim that they were not permitted to participate in the development of the administrative record.
The following CERCLA provisions from 42 U.S.C. § 9613(k) are applicable to this case:
The EPA selection of a response action in this case occurred on July 2, 1987, when Rita Ford, the on-scene coordinator, drafted an action memorandum seeking authorization for a removal action at the Amtreco site. The method of removal selected was that of off-site transport. At the time of this decision, no regulations concerning "procedures for the appropriate participation of interested persons in the development of the administrative record" had been promulgated. Furthermore, there were no regulations governing the contents of an administrative record in CERCLA cases. Therefore, the administrative record in this case was simply to "consist of all items developed and received pursuant to current procedures for selection of the response action," as set forth in the "Interim record" procedures in 42 U.S.C. § 9613(k)(2)(C). There was no requirement that defendants participate in the development of the administrative record.
Nevertheless, defendants were given opportunity to participate in the development of the administrative record. In 1990, the EPA compiled all documents used in selecting the Amtreco response action into one "administrative record file" and placed this file in the Homerville, Georgia, public library. The EPA also published a notice in the Clinch County News seeking public comment concerning the composition of the file. The EPA received no response to this request. Therefore, defendants had ample...
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...discovery bears a heavy burden of showing that it is necessary to supplement the administrative record. United States v. Amtreco Inc., 806 F.Supp. 1004, 1006 (M.D.Ga.1992)(citing Overton Park, 401 U.S. at 415, 91 S.Ct. 814). Judge concluded that none of the above exceptions apply in this ca......
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...however, and the party seeking discovery has `a heavy burden to show that supplementation is necessary.' United States v. Amtreco, Inc., 806 F.Supp. 1004, 1006 (M.D.Ga.1992) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971)......
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