NATIONAL MINING ASSOCIATION, Randy C. Huffman, State of West Virginia, Gorman Company, LLC, Kycog- ga 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.
Civil Action Nos. 10-1220, 11-295, 11-0446, 11-0447(RBW)
United States District Court, District of Columbia.
April 20, 2012.
856 F. Supp. 2d 150
Third, and most dispositive, plaintiff‘s conclusory allegations against Dixon are the very type of “naked assertions” the Supreme Court found incapable of surviving a
Joshua Wayne Nacey, Energy and Environment Cabinet, Frankfort, KY, Sadhna G. True, Mindy G. Barfield, Dinsmore & Shohl, Lexington, KY, for Plaintiff-Intervenors.
Cynthia J. Morris, Kenneth C. Amaditz, U.S. Department of Justice, Washington, DC, for Defendants.
Jennifer C. Chavez, Emma C. Cheuse, Stephen Elston Roady, Earthjustice, Washington, DC, Derek O. Teaney, Appalachian Mountain Advocates, Lewisburg, WV, for Defendant-Intervenors.
MEMORANDUM OPINION
REGGIE B. WALTON, District Judge.
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 administrative record or otherwise considered by the Court and request that those documents be stricken from the plaintiffs’ December 22, 2011 Joint Motion for Partial Summary Judgment. For the reasons that follow, both parties’ motions will be granted in part and denied in part.1
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 Section 702 of the Administrative Procedure Act (“APA“),
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 employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated September 28, 2011; (11) Affidavit of KDOW employee R. Bruce Scott; and (12) Letter from NPDES Branch, EPA Region III employee Evelyn S. MacKnight, to Division of Mining & Reclamation, West Virginia Department of Environmental Protection (“WVDEP“) employee Jeffrey Parsons, dated November 20, 2011. Pls.’ Mem., Exhibit (“Ex.“) 2. The defendants agree that the exhibits they move to strike from the plaintiffs’ motion for summary judgment “are the same as the documents identified in Exhibit A of the Joint Motion [to Correct or Supplement the Administrative Record].”3 Defs.’ Mem. at 1-2.4
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 announced in the Final Guidance, as well as the fact that the EPA has applied the Final Guidance in an arbitrary and capricious manner,” Pls.’ Reply at 8, the EPA‘s “actions are not adequately explained by the record, as there is nothing in the record that post-dates the Final Guidance or that relates to its application,” Pls.’ Mem. at 16, 19. Third, the plaintiffs assert that the Court may take judicial notice of the EPA-authored documents, “whose authenticity and contents are not in dispute.” Id. at 19.
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.
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.”
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 decisionmakers.” Marcum v. Salazar, 751 F.Supp.2d 74, 78 (D.D.C.2010). Conclusory statements will not suffice; rather, the plaintiff “must identify reasonable, non-speculative grounds for its belief that the documents were considered by the agency and not included in the record.” Id. at 6 (quoting Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Eng‘rs, 448 F.Supp.2d 1, 6 (D.D.C.2006)) (internal quotation marks omitted). If a party can present such proof showing that an agency “did not include materials that were part of its record, whether by design or accident, then supplementation is appropriate.” Id.; see also Natural Res. Def. Council, Inc. v. Train, 519 F.2d 287, 292 (D.C.Cir.1975) (holding that review of a “partial and truncated record” by the district court was error, and remanding the case for review “on the entire administrative record“).
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.5 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
These exceptions are to only be applied in limited circumstances, see Calloway, 590 F.Supp.2d 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 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, 876 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 the agency is the touchstone for supplementation, see Pls.’ Mem. at 12 (“In deciding whether the documents identified by Plaintiffs are necessary to complete the record the court must determine whether the document was, in fact[,] considered (as opposed to relied upon) by the agency.“) (emphasis in original), they advance no basis from which the Court could conclude that these documents were indeed considered by the EPA sufficient to overcome the EPA‘s assurance that the documents were not considered. Indeed, the crux of the plaintiffs’ argument seems to be that because the documents predate the issuance of the Final Guidance and were either authored by EPA employees or sent to EPA employees by the KDOW, they should be added to the administrative record. See id. at 9-10. It is not enough for the plaintiffs to assert that “the EPA knew about these” documents, Pls.’ Reply at 4; rather, the plaintiffs “must offer non-speculative grounds for their belief that the [agency] actually considered [the documents in question].” Marcum, 751 F.Supp.2d at 81 (emphasis added). And the plaintiffs have not done so here.
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 pre-
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 Guidance—is one that has been rejected by the Court at prior stages of this litigation. See Nat‘l Mining Ass‘n, 768 F.Supp.2d at 44 (“The federal defendants’ view of what amounts to finality is too narrow, as it is possible for an agency to take final agency actions during a permit assessment process prior to actually determining whether to grant or deny an application for a permit.“); Pls.’ Reply at 9 (“This Court has already rejected these arguments made by the EPA with respect to the Plaintiffs’ challenge of the EC Process, the MCIR Assessment[,] and the Interim Guidance.“). And the Court does not believe it efficient or necessary to rehash that reasoning again here. Accordingly, it is for now sufficient to say that because the Court‘s assessment of one of the plaintiffs’ challenges to the application of the Final Guidance is not possible by way of the administrative record alone, the four documents at issue are appropriate
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 will be granted in part and denied in part.8 Specifically, the Court will not supplement the administrative record, but will consider the four documents offered by the plaintiffs that post-date the issuance of the Final Guidance as extra-record evidence.9
UNITED STATES of America, Plaintiff, v. DRC, INC., Defendant.
Civil Action No. 04-1608 (RWR).
United States District Court, District of Columbia.
April 21, 2012.