NATIONAL MINING ASSOCIATION, RANDY C. HUFFMAN, STATE OF WEST VIRGINIA, GORMAN COMPANY, LLC, KYCOGA COMPANY, LLC, BLACK GOLD SALES, INC., KENTUCKY UNION COMPANY, HAZARD COAL CORPORATION, KENTUCKY COAL ASSOCIATION, Plaintiffs, COMMONWEALTH OF KENTUCKY, CITY OF PIKEVILLE, KENTUCKY, Plaintiff-Intervenors, v. LISA JACKSON Administrator, U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants, SIERRA CLUB, et al., Defendant-Intervenors.
Case 1:10-cv-01220-RBW
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
April 20, 2012
Document 141; Civil Action Nos. 10-1220, 11-295, 11-0446, 11-0447 (RBW)
These consolidated cases are currently before the Court on two motions: (1) the Plaintiffs’ Joint Motion to Complete and Supplement the Record (“Pls.’ Mot.”), and (2) the federal defendants’ Motion to Strike (“Defs.’ Mot.”). The plaintiffs request that the Court order the defendants to “complete . . . and/or supplement the [administrative] record,” Pls.’ Mot. at 1, while the defendants assert that it should not be required to add the documents in question to the
I. BACKGROUND
On July 20, 2010, plaintiff National Mining Association (“NMA”) filed its complaint seeking declaratory and injunctive relief against multiple federal defendants. The complaint, brought pursuant to
The two motions currently before the Court concern the same documents. These following twelve documents, which the plaintiffs ask be made part of the administrative record, were submitted with the plaintiffs’ motion: (1) Permitting Procedures for Determining ‘Reasonable Potential’, authored by the Kentucky Natural Resources and Environmental Protection Cabinet, Division of Water, dated May 1, 2000; (2) Letter from EPA employee Douglas F. Mundrick, to R. Bruce Scott, Kentucky Division of Water (“KDOW”) employee, dated July 7, 2000; (3) Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated December 21, 2009, commenting on proposed National Pollutant Discharge Elimination System (“NPDES”) Draft Permit for Premier Elkhorn Coal Company; (4) E-mail from EPA employee Chris Thomas to KDOW employe Sandy Gruzesky, dated December 21, 2009; (5) E-mail from EPA employe Sharmin Syed, to KDOW employee R. Bruce Scott, dated November 5, 2010 and attached spreadsheet; (6) E-mail and attached spreadsheet from KDOW employee R. Bruce Scott, to EPA employees Stan Meiburg, Jim Giattina, Chris Thomas et al., dated January 10, 2011; (7) E-mail and attached spreadsheet from KDOW employee R. Bruce Scott, to EPA employees Stan Meiburg, Jim Giattina, Chris Thomas et al., dated January 12, 2011; (8) E-mail from EPA employee Chris Thomas, to KDOW employee Sandy Gruzesky, dated March 10, 2011; (9) Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated September 28, 2011; (10) Letter from EPA
The plaintiffs advance three arguments as to why the documents in question should be added to the administrative record or considered by the Court as extra-record evidence. First, they maintain that several of the documents are “material documents which are clearly relevant” to the issues addressed in the Final Guidance and “which predate the issuance of the Final Guidance.” Pls.’ Mem. at 9. The plaintiffs further note that the documents that predate the Final Guidance, “were all either authored by [the] EPA or within its files at the time the Final Guidance was issued.” Id. at 13. They thus contend that “all such relevant documents before [the] EPA at the time of the Final Guidance should have made their way into the Administrative Record.” Id. Second, the plaintiffs argue that because they “challenge both the new standards
The defendants counter all of the plaintiffs’ arguments for supplementation of the administrative record or the Court’s consideration of extra-record evidence. First, the defendants argue that it is “not sufficient to simply assert that the documents are relevant and were in the possession of the agency at the time it made its decision.” Defs.’ Mem. at 5. Rather, they claim, the plaintiffs must demonstrate that the documents were actually considered by the agency but not included in the record. Id. They further maintain that none of the documents that predate the Final Guidance are “independently relevant” to the Final Guidance. Id. at 6. Second, the defendants contend that the plaintiffs have not established the exceptional circumstances necessary to warrant the consideration of extra-record evidence. Id. at 7. Third, the defendants assert that because the Court’s review of the agency action under the APA is not an evidentiary proceeding, the Federal Rule of Evidence permitting the Court to take judicial notice is not applicable. The Court will reach the parties arguments after briefly setting forth the standard of review applicable to the pending motions.
II. STANDARD OF REVIEW
When reviewing agency actions under the APA, the Court’s review is limited to the administrative record, either “the whole record or those parts of it cited by a party.”
“There is a standard presumption that the [administrative] agency properly designated the [a]dministrative [r]ecord.” Calloway v. Harvey, 590 F. Supp. 2d 29, 37 (D.D.C. 2008) (citing Amfac Resorts, L.L.C v. Dep’t of Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001)) (internal quotations omitted). “The administrative record includes all materials compiled by the agency that were before the agency at the time the decision was made.” James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (citations and internal quotations omitted). The agency must compile for the Court all of the information that was either directly or indirectly considered in reaching its decision, Amfac Resorts, 143 F. Supp. 2d at 12, and the Court should consider only what was actually before the agency at the time of the decision, IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997).
Supplementation of the record is appropriate in three circumstances: “(1) if the agency deliberately or negligently excluded documents that may have been adverse to its decision, (2) if background information was needed to determine whether the agency considered all the relevant factors, or (3) if the agency failed to explain administrative action so as to frustrate judicial review.” City of Dania Beach v. F.A.A., 628 F.3d 581, 590 (D.C. Cir. 2010) (citing Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008)) (internal quotation marks omitted)). To rebut the presumption of regularity, the party seeking supplementation must “put forth concrete evidence that the documents it seeks to ‘add’ to the record were actually before the
A separate standard governs judicial consideration of extra-record evidence, which “consists of evidence outside of or in addition to the administrative record that was not necessarily considered by the agency.” Calloway, 590 F. Supp. 2d at 38 (internal quotation marks omitted). In Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989), the District of Columbia Circuit stated that extra-record evidence was reviewable if it fell within one of eight exceptions.4 Since then, the Circuit appears to have narrowed these exceptions to four: (1) when the agency failed to examine all relevant factors; (2) when the agency failed to explain adequately its
These exceptions are to only be applied in limited circumstances, see Calloway, 590 F. Supp. at 38, and “in order to invoke one of these exceptions, a party seeking a court to review extra-record evidence must first establish that the agency acted in bad faith or otherwise behaved improperly, or that the record is so bare that it prevents effective judicial review,” County of San Miguel v. Kempthorne, 587 F. Supp. 2d 64, 79 (D.D.C. 2008) (internal quotations omitted) (citing Fund for the Animals v. Williams, 245 F. Supp. 2d 49, 57-58 (D.D.C. 2003)); see also Theodore Roosevelt Conservation P’ship, 616 F.3d at 514-15. The applicability of the exceptions, however, is at its zenith when extra-record evidence is needed to facilitate examination of the procedural soundness of an agency decision. Esch, 876 F.2d at 991. Ultimately, extra-record evidence will only be considered if it is needed to assist a court’s review. Calloway, 590 F. Supp. 2d at 38 (citing Esch, 867 F.2d at 991).
III. LEGAL ANALYSIS
A. The Documents that Predate the Issuance of the Final Guidance
Because the “[p]laintiffs have not provided the concrete evidence necessary to overcome the strong presumption of regularity owed to” an agency’s designation of the administrative record, Marcum, 751 F. Supp. 2d at 80, documents 1-8 will not be added to the administrative record. While the plaintiffs themselves recognize that consideration of the documents at issue by
Nor does the Court find the existence of “exceptional circumstances” necessary to warrant the consideration of these eight documents as extra-record evidence. Fl. Power & Light Co., 470 U.S. at 743-44. At the conclusion of the part of their brief asserting that the first eight documents—the documents predating the issuance of the Final Guidance—should be added to the administrative record, the plaintiffs maintain, in a footnote, that “if the Court declines to order the inclusion of these eight (8) documents in the Administrative Record, then it should at least consider these documents as extra-record evidence and/or take judicial notice of them consistent with the standards identified on pages 17-20 herein.” Pls. Mem. at 13, n.4. And while the ensuing pages alluded to in this footnote do set forth the legal elements that must be met for a court to consider extra-record evidence and argue that the final four documents—the documents
B. The Documents that Post-Date the Issuance of the Final Guidance
The Court will consider the final four documents at issue as extra-record evidence because they shed light on an issue not addressed by the administrative record itself. While the administrative record is not so bare as to frustrate judicial review as to all of the plaintiffs’ claims, it is entirely bare as to how the EPA has applied the Final Guidance. See Pls.’ Mem. at 15 (observing that the plaintiffs “have challenged both the new standards announced in the Final Guidance . . . , as well as [the] EPA’s arbitra[ry] and capricious application of the Final Guidance”). The plaintiffs assert that the four documents postdating the issuance of the Final Guidance “are relevant [to their] claims that [the] EPA has applied the Guidance as a binding rule and in an arbitrary and capricious manner.” Id. at 18-19. Although they dispute whether such an exception is applicable here, the defendants recognize that “[c]ourts in this Circuit will consider evidence that post-dates the issuance of any agency guidance document solely to determine whether the document is being applied as a rule.” Defs.’ Mem. at 8 n.8 (citing Catawba Cnty., N.C. v. EPA, 571 F.3d 20, 34 (D.C. Cir. 2009)). The basis for the defendants’ assertion that the plaintiffs’ “as applied” challenge to the Final Guidance is improper—that they have not challenged a specific permitting decision resulting from the application of the Final
IV. CONCLUSION
For the foregoing reasons, the Plaintiffs’ Joint Motion to Complete and Supplement the Record will be granted in part and denied in part, and the federal defendants’ Motion to Strike
REGGIE B. WALTON
United States District Judge
Notes
The defendants explain that “[t]here are only eight exhibits attached to the Joint Summary Judgment Brief because several of the exhibits combine more than one of the documents identified in Exhibit A to the Joint Motion [to Supplement].” Defs. Mem. at 2, n.4. While the defendants’ motion and reply reference the documents at issue by the exhibit numbers assigned as part of the Joint Summary Judgment Brief, id. at 2, the Court will refer to each of the twelve documents by the number preceding that document as designated on page three of this Memorandum Opinion. See supra at 3.
Additionally, the defendants note that document 11, the Scott Affidavit, refers to eighteen attachments, none of which were attached to the affidavit or filed with the Court. Defs.’ Mem. at 1, n.2. Likewise, document 4, an e-mail, references several attachments that were not submitted with the exhibit. Id. The defendants explain that “[t]o the extent [the p]laintiffs intend that any of those referenced documents should be considered by the Court,” their opposition also applies to those documents. Id. However, because those attachments have not been presented to the Court for consideration, they will for that reason alone not be added to the record in this case.
Specifically, the court stated that consideration of extra-record evidence may be warranted in the following circumstances:
- when agency action is not adequately explained in the record before the court; (2) when the agency failed to consider factors which are relevant to its final decision; (3) when an agency considered evidence which it failed to include in the record; (4) when a case is so complex that a court needs more evidence to enable it to understand the issues clearly; (5) in cases where evidence arising after the agency action shows whether the decision was correct or not; (6) in cases where agencies are sued for a failure to take action; (7) in cases arising under the National Environmental Policy Act; and (8) in cases where relief is at issue, especially at the preliminary injunction stage.