US v. Hardage

• Citation: 663 F. Supp. 1280
• Decision Date: 09 April 1987
• Docket Number: No. CIV-86-1401-W.,CIV-86-1401-W.
• Parties: UNITED STATES of America, Plaintiff, v. Royal N. HARDAGE, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

663 F. Supp. 1280

UNITED STATES of America, Plaintiff, v. Royal N. HARDAGE, et al., Defendants.

No. CIV-86-1401-W.

United States District Court, W.D. Oklahoma.

April 9, 1987.

COPYRIGHT MATERIAL OMITTED

F. Henry Habicht, II, Asst. Atty. Gen., and Bonnie A. Sullivan, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., Steven K. Mullins, Asst. U.S. Atty., William S. Price, U.S. Atty., Oklahoma City, Okl., Robert T. Lee and Anna Wolgast, Trial Attys., Environmental Enforcement Section, Land and Natural Resources Div., Dept. of Justice, Washington, D.C., for the U.S.

Steven K. McKinney, Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, Okl., Calvin Sawyier and Sidney Margolis, Winston & Strawn, Chicago, Ill., Fred S. Nelson, Claire V. Eagan and Michael D. Graves, Hall, Estill, Hardwick, Gable, Collingsworth & Nelson, Tulsa, Okl., Charles L. Berry and Molly Cagle, Vinson & Elkins, Houston, Tex., Robert D. Tomlinson and Kenneth McKinney, McKinney, Stringer & Webster, Oklahoma City, Okl., John D. White and Willard I. Boss, Watt, White, Gill & Craig, Houston, Tex., Mitchell D. O'Donnell, Savage, O'Donnell, Scott, McNulty & Affeldt, Gary W. Boyle, Boesche, McDermott & Eskridge, Tulsa, Okl., Harold Himmelman and Karl S. Bourdeau, Beveridge & Diamond, Washington, D.C., R. Kinnan Golemon, Brown, Maroney, Rose, Barber & Dye, Austin, Tex., David D. Sigman, Exxon Corp. Law Dept., Houston, Tex., J. Kemper Will and Robert F. Hill, Hill & Robbins, P.C., Denver, Colo., James A. Calloway, Oklahoma City, Okl., Steven M. Morgan, Texas Instruments, Inc., Dallas, Tex., David A Giannotti, McKenna, Conner & Cuneo, Los Angeles, Cal., Diane Goldschmidt, Oklahoma City, Okl., Jeffrey Martin, Hunton & Williams, Washington, D.C., Harry R. Palmer, Jr., Oklahoma City, Okl., Stephen F. Fink, James C. Morriss, III and Elizabeth A. Rabon, Thompson & Knight, Dallas, Tex., Jerome T. Wolf and Frank B.W. McCollum, Spencer, Fane, Britt & Browne, Kansas City, Mo., Barrow & Able, Houston, Tex., James A. Kirk and John M. Jameson, Kirk & Chaney, Oklahoma City, Okl., and Gregory L. Hennig, Able, Barrow & Able, Houston, Tex., for defendants.

ORDER

LEE R. WEST, District Judge.

Plaintiff, United States of America, moves the Court to reconsider and to modify its Order of December 11, 1986 in the above-referenced case, pursuant to Local Rule 9, on the ground the Court misconstrues the limited protection sought by the United States' original Motion for Protective Order. The government states "the Court broadly addressed questions of record review not at issue in the Motion and concluded that a de novo review of Environmental Protection Agency's (hereinafter "EPA") remedy selection process under CERCLA is appropriate in this case." The Court directs the government to its brief in support of its original motion filed November 17, 1987, at pp. 4-12. The government argues in detail "judicial review of EPA's decision of an appropriate remedy is limited to the administrative record." As evidenced in the above-referenced pages, the government deemed the scope of judicial review an issue before the Court in its motion for protective order. The government now asserts the original motion was sought for a "limited purpose," and accuses the Court of misconstruing the limited protection it sought in said motion. Such an accusation clearly is misplaced and clearly conflicts with the government's own conception of the relevant issues as articulated in its original brief. In its motion for reconsideration, the government seeks modification of this Court's determination de novo review of EPA's selected remedy is appropriate in the case at bar. Therefore, the issues before the Court on the original motion and on the instant motion include the scope of judicial review of an appropriate remedy for the Hardage site.

The government states it followed applicable administrative procedures in its selection of the preferred remedy and that defendants participated in the remedy selection process which resulted in a Record of Decision on November 14, 1986. The government filed its complaint in the instant case June 25, 1986. During a status conference before the Court September 3, 1986, it was unable to articulate the nature of relief it sought, when requested to do so by the Court. In fact, the government had only a vague conception of what type of remedy it might seek in the case. The Court strongly admonished the government's actions, which it filed without some working knowledge of the relief it was seeking, were premature and violated Rule 11, Fed.R.Civ.P. Subsequently, (over two months later) the Record of Decision was filed in this case. Presently, the government has failed to certify an administrative record to the Court. The government argues "it is only the Agency's decision making process in selecting a remedy that the United States sought to limit from discovery. Matters concerning each defendant's liability will be tried de novo by the Court." Plaintiff's brief at p. 2. Plaintiff states the Superfund Amendments and Reauthorization Act of 1986 limits this Court's review of the process by which EPA reached its remedy recommendation to the administrative record. The government further asserts the Court must adopt the preferred remedy unless the Court finds it is "arbitrary and capricious," citing Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601, et seq., § 113(j) of Superfund Amendments and Reauthorization Act of 1986, Public Law No. 99-499 (hereinafter "SARA").

The Court believes its Order of December 11, 1986 evidences the proper analysis and ultimate resolution of scope of judicial review of EPA's preferred remedy. The argument SARA

"restricts judicial review of issues related to the appropriate remedy for the Hardage site to an administrative record, and thus necessarily limits questions which may be asked at depositions, ignores the fact the Government seeks mandatory injunctive relief under § 7003 of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6973, to compel defendants to perform a remedy at the Hardage site. Section 7003 claims must be resolved in traditional trials by federal district courts after full discovery. In fact, as defendants state in their brief in opposition to plaintiff's Motion for Protective Order, p. 4 there are no reported cases in which a court confined its review of a RCRA § 7003 claim to an administrative record. Instead, courts consistently have decided such claims independently, allowing discovery, and imposing the burden of proof at trial on the Government. citations omitted."

Order of December 11, 1986, at p. 2.

"Similarly, § 106 injunction claims, pursuant to § 106 of CERCLA, also must be resolved in traditional trials by federal district courts after full discovery."

Order of December 11, 1986 at p. 3.

The Court considers the applicable sections of CERCLA and SARA and interprets those sections to allow de novo review of EPA's proposed remedy in the instant case. From the outset, the Court notes SARA became effective approximately four months subsequent to the date on which the complaint in the instant case was filed. As such, § 113(j) of SARA is inapplicable to the instant case. The Court believes retroactive application of such section is improper. For purposes of this motion, however, the Court analyzes the issue as though the Court condones retroactive application of SARA. Retroactive application in fact does not affect the Court's decision as to the scope of review issue.

Section 113(h) of SARA grants the Court jurisdiction

"to review any challenges to removal or remedial action selected under section 104, or to review any order issued under section 106(a), in any action ...

(5) An action under section 106 in which the United States has moved to compel a remedial action."

Such is the instant case. The government seeks an injunction pursuant to § 106 of CERCLA, to enjoin defendants to clean up the Hardage site. The provision of SARA, § 113(j) regarding judicial review, is at issue on the motion for reconsideration. That section states, in relevant part:

"(1) Limitation. — In any judicial action under this Act, judicial review of any issues concerning the adequacy of any response action taken or ordered by the President (emphasis added) shall be limited to the administrative record....

(2) Standard. — In considering objections raised in any judicial action under this Act, the court shall uphold the President's decision (emphasis added) in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law."

Section 113(k) of SARA pertains to administrative record and participation procedures. It limits the selection and any judicial review of removal and remedial actions of the President to the administrative record. The statute clearly distinguishes between judicial review of the President's selection of such actions and judicial review of proposed remedies for sites which EPA asks a court to require defendants to implement. Judicial review is not limited to the administrative record in the latter case. Another relevant distinction the government fails to make concerns the judicial review limitation pertaining to the adequacy of any response action "taken or ordered by the President" as opposed to any response action ordered by a court. The latter is at issue in the instant case, and only the former is limited to the administrative record. The government and defendants agree the Court will issue the requested injunctive relief and order any compliance by defendants during the liability phase of trial. In the case at bar, the President will not order any response action taken. Clearly, an injunction ordered by this Court is not a response action "taken or ordered by the President." EPA has...