United States v. Boston and Maine Corporation

Filing 72

Judge Indira Talwani: ORDER entered granting in part and denying in part 55 Motion to Compel; granting in part and denying in part 57 Motion to Limit the Scope: B&Ms Motion to Compel Production of Documents From the United States [#55] and the United States Motion to Limit the Scope of Judicial Review Pursuant to Section 113(J) of CERCLA [#57] are hereby GRANTED IN PART and DENIED IN PART. Discovery shall proceed in accordance with this order. See attached Order. (MacDonald, Gail)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA,
Plaintiff,
v.
BOSTON AND MAINE CORPORATION,
Defendant,
v.
TOWN OF AYER, MASSACHUSETTS,
Third-Party Defendant.

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Civil Action No. 13-10087-IT

ORDER
February 20, 2015
TALWANI, D.J.
Before the court are Defendant Boston and Maine Corporation’s (“B&M”) Motion to
Compel Production of Documents From the United States [#55] and Plaintiff United States’
Motion to Limit the Scope of Judicial Review Pursuant to Section 113(J) of CERCLA [#57]. In
its motion to compel, B&M challenges the United States’ refusal to produce certain documents
concerning two adjacent properties on the former Fort Devens, referred to as the 1942 Parcel (or
Roundhouse Site) and the Pond Parcel (or Plow Shop Pond). In particular, B&M seeks
documents “reflecting or discussing on-site activity by the United States” on the two parcels
from 1986 to the present as well as communications concerning any such activity between (1)
the U.S. Army and the Environmental Protection Agency, and (2) those agencies and other third
parties. B&M’s Mot. Compel Produc. Docs. From United States, 2-4. These documents, B&M
asserts, “may shed light on (and perhaps refute) the United States’ characterization” of its
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activity on the parcels as removal actions. Id. at 4. B&M emphasizes that it does not challenge
the adequacy or reasonableness of the government’s actions, but rather challenges the
government’s characterization of those actions as removal actions. Id. at 5.
Opposing B&M’s motion, the United States moves to limit the scope of judicial review
of “the characterization, selection, adequacy, or implementation” of the activities undertaken by
the government on the two parcels to “the administrative record under the arbitrary and
capricious standard.” United States’ Supplemental Mem. Supp. Mot. Limit Scope Judicial
Review, 11 [#69]. The United States argues that 42 U.S.C. § 9613(j) imposes such a limit on the
court’s review.
As an initial matter, the court finds that § 9613(j) does not limit judicial review of the
government’s characterization of its actions taken pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq. to an
arbitrary and capricious standard. Section 9613(j) provides that
(1) Limitation
In any judicial action under this chapter, judicial review of any issues concerning
the adequacy of any response action taken or ordered by the President shall be
limited to the administrative record. Otherwise applicable principles of
administrative law shall govern whether any supplemental materials may be
considered by the court.
(2) Standard
In considering objections raised in any judicial action under this chapter, the court
shall uphold the President’s decision 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 9613(j)(1)-(2). By its plain text, these provisions govern review of “the adequacy of any
response action taken or ordered by the President” and “the President’s decision in selecting the
response action.” Id. They do not govern review of the legal question as to whether the actions
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actually taken fall within the statutory definition of a removal or remedial action. See New York
v. Next Millenium Realty, LLC, 732 F.3d 117, 126 (2d Cir. 2013) (“Whether a suit to recover
response costs under section 107 of CERCLA is a ‘removal action’ or a ‘remedial action’ is a
question of law that we review de novo.”); United States v. W.R. Grace & Co., 429 F.3d 1224,
1234–35 (9th Cir. 2005) (“Whether the EPA’s cleanup activity was a removal action—or, on the
other hand, a remedial action in removal action’s clothing—is a question of statutory
interpretation. . . . and the classification of the activity is determined as a matter of law.”); see
id. at 1236 (“Despite the EPA’s insistence that arbitrary and capricious review applies to all
aspects of our inquiry, the statute does not support this reading. . . . Here we address not the
EPA’s selection of its remedy, but rather whether the actions taken fall within the statutory
definition of a removal.”); Colorado v. Sunoco, Inc., 337 F.3d 1233, 1242 (10th Cir. 2003)
(“Nothing in § 9613(j)(2) refers to the EPA’s characterization of a particular action . . . . Instead,
[its] plain language . . . grants deference only to the EPA’s ‘decision in selecting the response
action’ at issue. In other words, § 9613(j)(2) is aimed at protecting the EPA’s decision to engage
in a particular removal or remedial action . . . .”).
Whether B&M is entitled to the documents it seeks is a different question, informed by
§ 9613(j)’s limitations and administrative law principles. As a starting point, the court notes that
“[u]nder CERCLA, judicial review normally is limited to the administrative record as it existed
at the time of the challenged agency action.” United States v. JG-24, Inc., 478 F.3d 28, 33–34
(1st Cir. 2007). Accordingly, in conducting de novo review of the proper characterization of the
government’s actions, for the time period with a closed administrative record (through January
2001 for the 1942 Parcel and June 2014 for the Pond Parcel) the court will generally look at the
facts relating to the actions actually taken by the government as set forth in the administrative

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record and will make an independent determination as to whether those actions constitute a
removal or remedial action as a matter of law.
In its motion, B&M requests the production of certain communications created both
before and after the commencement of on-site activity at the 1942 Parcel and Pond Parcel,
arguing that this information is relevant because it may shed light on the United States’
characterization of its actions. The court disagrees. Documents reflecting internal
communications and opinions made within and among government agencies and made between
government agencies and third parties concerning the government’s actions bear more on the
deliberative process leading to the government’s selection and adequacy of a response action and
whether the reasons given for such action were justified, discovery of which is expressly limited
by § 9613(j). Moreover, the subjective intentions of government personnel and contractors do
not directly bear on the legal characterization of the actions actually taken by the government.
Discovery of factual materials created after the commencement of on-site activity that
document the actions actually taken by the government (rather than their characterizations of
those actions), such as invoices and reports submitted by contractors, presents a closer question.
Supplementation of the administrative record in certain circumstances may be appropriate; for
instance, such as when there is a showing of bad faith by the agency or that the record is
incomplete. See, e.g., Emhart Indus., Inc. v. New England Container Co., Nos. 06–218 S, 11–
023 S, 2014 WL 2815674, at *1 (D.R.I. June 20, 2014) (listing possible reasons for
supplementation of the record). The court notes, nonetheless, that but for its trifurcation of this
action, B&M would have been permitted to discover invoices and contractor reports
documenting the specific actions taken for which B&M may be held liable. In the interest of
avoiding any prejudice to B&M as a result of the procedural order, discovery of invoices and

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contractor reports documenting the specific actions taken after commencement of on-site activity
will be permitted at this stage. Such material for periods covered by the closed administrative
record will be considered by the court on a summary judgment motion concerning the statute of
limitations only on an appropriate showing as to why the court may look beyond the
administrative record in determining the factual record in this particular case.
For these reasons, B&M’s Motion to Compel Production of Documents From the United
States [#55] and the United States’ Motion to Limit the Scope of Judicial Review Pursuant to
Section 113(J) of CERCLA [#57] are hereby GRANTED IN PART and DENIED IN PART.
Discovery shall proceed in accordance with this order.
IT IS SO ORDERED.
Date: February 20, 2015

/s/ Indira Talwani
United States District Judge

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