274 F. Supp. 3d 30
D.R.I.2017Background
- Centredale Manor Superfund Site in North Providence, RI contains dioxin and other contaminants across a three-mile stretch including a defined Source Area, Allendale and Lyman Mill Ponds, and the Oxbow wetland.
- EPA conducted an RI/FS, proposed a remedial plan (PRAP), amended it after a national dioxin reassessment, held notice-and-comment periods, and issued a Record of Decision (ROD) in Sept. 2012 selecting a multi-component remedy (excavation, confined disposal facility (CDF), RCRA C cap in Source Area, institutional controls, monitoring); estimated cost ~ $104.6M.
- Emhart was found liable in Phase I for releases; in Phase II it challenged the lawfulness of EPA’s remedy selection and refused to comply with EPA’s June 10, 2014 Unilateral Administrative Order (UAO).
- The court limited review generally to the administrative record but allowed expert testimony to aid understanding; it applied CERCLA’s record-review framework and the APA arbitrary-and-capricious standard (deferential but requires reasoned explanation).
- The court found EPA followed CERCLA/NCP procedures overall but identified specific deficiencies in EPA’s analysis that rendered parts of the ROD arbitrary or inadequately justified on the existing record.
Issues
| Issue | Emhart's Argument | Government's Argument | Held |
|---|---|---|---|
| Scope of judicial review / supplementation of record | Court should consider extra-record discovery and evidence to show flaws | Judicial review under CERCLA is limited to the administrative record; supplementation allowed only narrowly | Court: review limited to administrative record but may consider extra expert testimony to aid understanding; supplemental evidence otherwise disfavored absent bad faith or record inadequacy |
| Issue exhaustion (arguments raised first at trial) | Court should consider Emhart’s newly raised objections to remedy | Arguments not raised during PRAP comment period are waived; EPA should have opportunity to respond | Court: generally enforces exhaustion; will consider only narrow exceptions for obvious/key assumptions that EPA must justify |
| Adequacy of site data / excavation & treatment volume estimates | EPA lacked sufficient site-specific sampling to support FS/ROD estimates for excavation and off-site treatment quantities | EPA had adequate sampling and may refine during remedial design; ROD permissibly reserved further sampling | Court: EPA collected sufficient data to compare alternatives in FS and properly committed to additional remedial-design sampling; must update administrative record if design-stage data materially change costs or scope |
| Classification of Source Area groundwater as potential drinking water (Class II) | Emhart: groundwater should be Class III (not a potential drinking source); Class II label drove stricter goals and RCRA C cap | EPA: guidance supports Class II; classification consistent with NCP objectives and may be revised if design-stage data differ | Court: EPA lacked sufficient analysis on vertical extent and off-site contributions to justify Class II; classification (and RCRA C cap tied to it) is arbitrary on present record and requires further analysis |
| Fish-consumption assumptions in BHHRA | Emhart: EPA made unreasonable/speculative assumptions (species, portions consumed, and grams-from-site) inflating risk | EPA: assumptions conservative, supported by literature/local expertise, and protect vulnerable subpopulations | Court: most exposure assumptions defensible, but two arbitrary aspects: (1) excluding largemouth bass from Allendale despite evidence they likely exist; (2) relying on a 14 g/day per-person figure from MAS without accounting that MAS consumption is spread across waterbodies. EPA must correct these errors |
| Validity of UAO / Emhart’s refusal to comply | Emhart: good-faith, objectively reasonable challenges to remedy justify non-compliance (i.e., "sufficient cause") | EPA: UAO lawful; responsible parties must comply pending judicial review; penalties discretionary | Court: Emhart’s noncompliance pursued in objective good faith given preserved challenges and some rulings in Emhart’s favor; UAO stayed pending EPA resolution of identified defects; accrued fines not imposed to date |
Key Cases Cited
- United States v. Bestfoods, 524 U.S. 51 (site cleanup authority and CERCLA purpose)
- JG-24, Inc. v. United States, 478 F.3d 28 (administrative-review limited to the record under CERCLA)
- Upper Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d 9 (issue-exhaustion in notice-and-comment context)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (arbitrary and capricious/grounds for reversal)
- Appalachian Power Co. v. EPA, 135 F.3d 791 (agency must justify key assumptions even if not objected to in comment)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (record adequacy and supplementation exception)
- Solid State Circuits, Inc. v. EPA, 812 F.2d 383 (sufficient-cause/good-faith basis to refuse UAO)