UNITED STATES OF AMERICA v. PECHINEY PLASTICS PACKAGING, INC.,
Filing
52
MEMORANDUM OPINION. Signed by Magistrate Judge Tonianne J. Bongiovanni on 8/14/2012. (gxh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
Civil Action No. 09-5692 (PGS)
Plaintiff,
v.
MEMORANDUM OPINION
PECHINEY PLASTICS PACKAGING,
INC.,
Defendant.
BONGIOVANNI, Magistrate Judge,
Presently before the Court is Defendant Pechiney Plastics Packaging, Inc.’s (“PPPI”)
motion for reconsideration of the Court’s Letter Order of March 12, 2012 [Docket Entry No. 42],
which granted in part and denied in part PPPI’s request for certain discovery. Plaintiff United
States of America (the “United States”) opposes PPPI’s motion for reconsideration. Also, to the
extent the Court grants PPPI’s motion and reconsiders Its earlier decision, the United States
opposes PPPI’s request for additional discovery. The Court has reviewed all arguments raised in
support of and in opposition to PPPI’s motion for reconsideration, including all arguments made
with respect to the discovery sought by PPPI. The Court considers PPPI’s motion without oral
argument pursuant to FED .R.CIV .P. 78. For the reasons stated more fully below, PPPI’s motion
for reconsideration is DENIED.
I.
Background
On November 6, 2009, the United States brought this civil action against PPPI pursuant
to Sections 107 and 113(b) of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. §§ 9607 and 9613(b). Through this
lawsuit, the United States seeks to recover certain costs incurred or to be incurred by the United
States Environmental Protection Agency (the “EPA”) in connection with the release or
threatened release of hazardous substances into the environment at or from the Pohatcong Valley
Groundwater Contamination Superfund Site (the “Pohatcong Site”). The Pohatcong Site is
comprised of approximately ten square miles and is located in Warren County, New Jersey. The
United States seeks to recoup approximately $22 million in costs for work done in relation to the
Pohatcong Site and its cost claims extend for a time span of approximately 26 years.
During the course of this litigation, a discovery dispute arose over PPPI’s request for
discovery from CH2M Hill, the EPA’s primary contractor. While the parties had reached an
interim agreement concerning the production of CH2M Hill discovery in early 2011 under which
the United States agreed to produce the files from certain CH2M Hill offices and servers, as well
as certain hard copy files for PPPI to copy at other CH2M Hill offices along with the files of six
priority CH2M Hill employees, the agreement did not foreclose PPPI’s right to seek additional
CH2M Hill discovery from the United States or directly from CH2M Hill. The agreement also
did not foreclose the United States’ right to object to any additional discovery requested by PPPI.
After receiving the United States’ interim production of discovery from CH2M Hill, PPPI
exercised its right to seek additional information from CH2M Hill and the United States
exercised its right to object to same.
The parties raised their inability to agree on the appropriate scope of CH2M Hill
discovery to the Court in their status letters submitted on January 13, 2012 in advance of the
telephone conference scheduled for January 20, 2012. (See Letter from Barbara Magel to Hon.
Tonianne J. Bongiovanni, U.S.M.J. of 1/13/2012; Letter from Keith Tashima to Hon. Tonianne J.
Bongiovanni, U.S.M.J. of 1/13/2012). On January 19, 2012, the day before the parties’
2
scheduled status conference, the Court received an additional letter from PPPI, narrowing the
scope of the additional CH2M Hill discovery it was currently seeking to nine employees’ files
and explaining why this discovery was relevant to its affirmative defenses: inconsistency with the
National Contingency Plan (the “NCP”), statute of limitations and divisibility/apportionment.
(See Letter from Barbara Magel to Hon. Tonianne J. Bongiovanni, U.S.M.J. of 1/19/2012).
On January 20, 2012, the Court conducted a status telephone conference with the parties.
During the conference, the Court discussed PPPI’s request for additional CH2M Hill discovery
and took that request under advisement. While the Court did not foreclose the possibility that It
would require formal motion practice on this issue, the Court also left open the possibility that It
would rely on the parties’ informal letter applications to determine whether additional CH2M
Hill discovery was warranted. Subsequent to the January 20, 2012 telephone conference, the
Court permitted the parties to submit additional letter briefs on the CH2M Hill discovery issue.
The parties submitted same on January 27, 2012. (See Letter from Barbara Magel to Hon.
Tonainne J. Bongiovanni, U.S.M.J. of 1/27/2012; Letter from Myriah Jaworski to Hon. Tonianne
J. Bongiovanni, U.S.M.J. of 1/27/2012).
3
After reviewing all of the parties’ letters on the issue,1 the Court entered a Letter Order on
March 12, 2012 [Docket Entry No. 42], granting in part and denying in part PPPI’s request for
additional CH2M Hill discovery. Specifically, the Court required the United States to produce
the files of D. Zmudzin, but denied PPPI’s request for any additional CH2M Hill discovery. In
reaching this conclusion, the Court determined that PPPI had failed to establish that the requested
discovery was relevant to either its defense that some of the United States’ claimed costs are
inconsistent with the NCP or its statute of limitations defense. (See 3/12/2012 Letter Order at 46). The Court further determined that while it was reasonable to presume that eight of the nine
employee files requested by PPPI likely contained information at least somewhat relevant to the
issue of apportionment, with one exception, the burden and expense associated with the
production of those files was significantly outweighed by the likely benefit of same. (Id. at 1011); the exception being D. Zmudzin’s files, which as already noted above, the Court required
the United States to produce.
1
The Court notes that after the January 27, 2012 letters were submitted, the parties
submitted several other letters tangentially related to the parties dispute concerning the
appropriate scope of CH2M Hill discovery. (See Letter from Bethany Engel to Hon. Tonianne J.
Bongiovanni, U.S.M.J. of 2/3/2012; Email from Bruce White to Hon. Tonainne J. Bongiovanni,
U.S.M.J. of 2/3/2012; Letter from Barbara Magel to Hon. Tonianne J. Bongiovanni, U.S.M.J. of
2/7/2012 (discussing production of cost documents); Letter from Barbara Magel to Hon.
Tonianne J. Bongiovanni, U.S.M.J. of 2/7/2012 (discussing PPPI’s production of documents
from Albea America, Inc.’s facility in Washington, New Jersey as well as CH2M Hill discovery);
Letter from Bethany Engel to Hon. Tonianne J. Bongiovanni, U.S.M.J. of 2/8/2012; Letter from
Barbara Magel to Hon. Tonianne J. Bongiovanni, U.S.M.J. of 2/9/2012). These subsequent
letters do not substantively address in any detail the relevancy of the CH2M Hill discovery to
PPPI’s affirmative defenses. As such, while the Court obviously reviewed these letters, the
Court’s decision on PPPI’s request for additional CH2M Hill discovery was largely based on the
five letters submitted by the parties on or before January 27, 2012, namely PPPI and the United
States’ January 13, 2012 letters, PPPI’s January 19, 2012 letter and PPPI and the United States’
January 27, 2012 letters.
4
On March 19, 2012, PPPI submitted a letter to the Court, purportedly in accordance with
L.Civ.R. 7.1, through which it sought reconsideration of the Court’s March 12, 2012 Letter
Order. PPPI’s basis for seeking reconsideration was that PPPI did not believe that the Court
would treat its letters of January 13, 2012 and January 19, 2012 “as if they were a complete
briefing or presentation of PPPI’s needs for the remaining production[,]” rather it was PPPI’s
understanding that it was “awaiting further instruction as to whether the Court wanted more
formal filings (as requested by the United States through its protective order approach) or an in
person conference.” (Letter from Barbara Magel to Hon. Tonianne J. Bongiovanni, U.S.M.J. of
3/19/2012 at 1). In short, PPPI argued that reconsideration is appropriate because it “did not
anticipate a ruling based on our letters which simply provided examples to demonstrate the
relevancy of the documents sought, rather than a fully briefed position statement.” (Id.)
After receiving PPPI’s March 19, 2012 letter, the Court immediately entered a Letter
Order, which in its entirety read:
The Court has received Defendant Pechiney Plastics Packaging,
Inc.’s (“PPPI’s”) letter dated today, March 19, 2012, regarding the
Court’s March 12, 2012 Letter Order. To the extent any party
seeks reconsideration of all or part of the March 12, 2012 Letter
Order, that party has until March 26, 2012 to file a formal motion
pursuant to L.Civ.R. 7.1(i) seeking same.
(March 19, 2012 Letter Order; Docket Entry No. 43). PPPI’s instant motion for reconsideration
followed.
II.
Analysis
In this district, motions for reconsideration are governed by L.Civ.R. 7.1(i) and are
considered “extremely limited procedural vehicle(s).” Resorts Int’l v. Greate Bay Hotel &
5
Casino, 830 F.Supp. 826, 831 (D.N.J. 1992). As a result, “reconsideration is an extraordinary
remedy, that is granted ‘very sparingly[.]’” Brackett v. Ashcroft, No. Civ. 03-3988 (WJM), 2003
WL 22303078, *2 (D.N.J. Oct. 7, 2003) (quoting Interfaith Community Org. v. Honeywell Int’l,
Inc., 215 F.Supp.2d 482, 507 (D.N.J. 2002). As such, a party seeking reconsideration bears a
high burden and must demonstrate one of the following three grounds to establish that
reconsideration is appropriate: “(1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the court [issued its order]; or (3) the
need to correct a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Café
v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
L.Civ.R. 7.1(i) provides that:
Unless otherwise provided by statute or rule . . ., a motion for
reconsideration shall be served and filed within 14 days after the
entry of the order or judgment on the original motion by the Judge
or Magistrate Judge. A brief setting forth concisely the matter or
controlling decisions which the party believes the Judge or
Magistrate Judge has overlooked shall be filed with the Notice of
Motion.
As is clear from the text of the Rule, the term “overlook” is the dominant term in L.Civ.R. 7.1(i).
Indeed, generally, the Rule “does not contemplate a Court looking to matters which were not
originally presented.” Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F.Supp. 159,
162 (D.N.J. 1988). Consequently, “except in cases where there is a need to correct a clear error
or manifest injustice, ‘[o]nly dispositive factual matters and controlling decisions of law which
were presented to the court but not considered on the original motion my be the subject of a
motion for reconsideration.’” Guinta v. Accenture, LLP, Civ. No. 08-3776 (DRD), 2009 WL
301920, *5 (D.N.J. Jan. 23, 2009) (quoting Resorts Int’l, 830 F.Supp. at 831).
6
Here, Plaintiff seeks reconsideration because it was allegedly surprised by the Court’s
March 12, 2012 Letter Order deciding the appropriate scope of additional CH2M Hill discovery
as “[i]t was PPPI’s understanding that we were awaiting either scheduling of an in-person
conference with the Court or further instructions allowing the parties to file a formal discovery
motion on the issue.” (PPPI Br. at 5). As a result, PPPI argues that as of March 12, 2012, PPPI
had not fully presented its explanation of needs for the remaining documents to the Court.” (Id.)
Instead, PPPI had only submitted “two letters providing only examples of how the requested
documents were needed to establish affirmative defenses and reviewing how PPPI had proposed
to streamline its production approach” at the time the Court entered its Letter Order. (Id.) As
such, PPPI argues that reconsideration is warranted here.
Surprisingly, in its opening brief, PPPI makes no mention of the stringent standards
governing motions for reconsideration. Instead, PPPI states that it is seeking reconsideration
pursuant to L.Civ.R. 7.1(i) and that “[r]econsideration is appropriate when, inter alia, ‘evidence
not previously available has become available or if necessary to correct a clear error of law or
fact or prevent a manifest injustice.” (PPPI Br. at 5 (quoting Bouder v. Prudential Fin., Inc.,
Civil Action No. 06-4359 (DMC), 2010 WL 2925938 (D.N.J. 2010)). PPPI further argues that
reconsideration is appropriate here because it “had not fully presented its explanation of needs for
the remaining documents” and was surprised by the Court’s Order limiting the scope of the
CH2M Hill production because it believed that the Court was either going to permit the parties to
file a formal motion on said issue or hold an in-person conference regarding same. (Id.)
While PPPI is correct that reconsideration is appropriate where evidence not previously
available has become available or if necessary to correct a clear error of law or fact or prevent
7
manifest injustice, the Court still would have expected a more extensive discussion in Plaintiff’s
opening brief regarding the propriety of granting reconsideration here, especially in light of the
fact that parties moving for reconsideration are not generally permitted to file reply papers. See
L.Civ.R. 7.1(d)(3) (stating that “[n]o reply papers shall be filed on a motion for reconsideration
pursuant to L.Civ.R. 7.1(i) . . . unless the Court orders otherwise.”) Nevertheless, here, Plaintiff
was permitted to submit a reply.
In that reply, Plaintiff initially seems to suggest that the stringent standards that typically
govern motions for reconsideration do not apply to the instant motion. In this regard, PPPI
attempts to distinguish its motion for reconsideration, which seeks reconsideration of an order
entered on a discovery dispute submitted informally through letter correspondence, from motions
for reconsideration of decisions rendered after formal motion practice. PPPI also suggests that
the typical standards for reconsideration do not apply because “the Court here has already granted
PPPI’s request to seek reconsideration through its March 19, 2012 Order.” (PPPI Reply at 2).
However, PPPI also reiterates the argument it made in its opening brief, claiming that
reconsideration is appropriate in order to prevent a manifest injustice: namely the injustice that
would result if the Court failed to reconsider its decision when PPPI had not fully presented all of
its arguments concerning the discovery sought because it believed that the Court would either
request additional, formal briefing on the CH2M Hill discovery issue or hold an in-person
conference regarding same.
As an initial matter, the Court finds no reason why PPPI’s motion for reconsideration
should be excused from the normal standards governing motions for reconsideration. The Court
8
finds that the fact that the decision over which PPPI seeks reconsideration was based on
correspondence submitted informally to Chambers rather than as a formally filed motion is a
distinction that makes no difference and, indeed, PPPI provides no legal support for its
proposition that this distinction matters. Discovery issues like that involving the parties’ current
dispute over the appropriate scope of CH2M Hill Discovery are often times handled informally
rather than by formal motion practice and the Court finds no support for the contention that
disputes decided by way of informal letter applications are some how exempt from the typical
standards governing motions for reconsideration; nor does PPPI provide any.
Further, there is nothing in the Court’s March 19, 2012 Letter Order permitting PPPI to
file the instant motion for reconsideration to suggest that PPPI’s motion would be governed by
any standard other than the same stringent standard under which all motions for reconsideration
are governed. As previously noted, the Court’s March 19, 2012 Letter Order reads in its entirety:
The Court has received Defendant Pechiney Plastics Packaging,
Inc.’s (“PPPI’s”) letter dated today, March 19, 2012, regarding the
Court’s March 12, 2012 Letter Order. To the extent any party
seeks reconsideration of all or part of the March 12, 2012 Letter
Order, that party has until March 26, 2012 to file a formal motion
pursuant to L.Civ.R. 7.1(i) seeking same.
Clearly, the Court’s Letter Order does not exempt PPPI’s motion for reconsideration from the
normal standards governing such motions. Instead, quite the opposite is true: the Court explicitly
directs any party seeking reconsideration to “file a formal motion pursuant to L.Civ.R. 7.1(i).”
(Id. (emphasis added)). Thus, while the Court did permit PPPI to seek reconsideration of It’s
March 12, 2012 Letter Order by filing a formal motion for reconsideration, the Court never
insinuated that the motion for reconsideration would be granted or that the party seeking
9
reconsideration would not have to meet the typical standards governing such motions.2
Nevertheless, PPPI also argues that reconsideration is appropriate under L.Civ.R. 7.1(i) in
order to prevent a manifest injustice. The prevention of manifest injustice is a well accepted
basis for granting a motion for reconsideration. See Max’s Seafood Café, 176 F.3d at 677. Here,
PPPI argues that reconsideration is warranted to prevent the manifest injustice that would result
if PPPI wasn’t able to expand the record on which the Court entered Its decision in light of the
fact that PPPI believed that it would have the opportunity to further supplement the record
through either formal motion practice or an in-person conference before a ruling was made.
Indeed, given PPPI’s understanding that the Court would require a formal motion or hold an inperson conference before ruling on its request for additional CH2M Hill discovery, PPPI
contends that it was surprised by the Court’s March 12, 2012 Letter Order.
The Court is admittedly perplexed by PPPI’s surprise that a decision was rendered
without formal motion practice or an in-person conference. While the Court did leave open the
possibility that It would request a formal motion or a conference, the Court also indicated that the
parties’ informal letter briefs might be sufficient. It appeared to the Court that PPPI understood
2
In fact, the only reason the Court entered the March 19, 2012 Letter Order permitting the
parties to formally move for reconsideration, is that earlier that day, PPPI sent in an informal
letter application seeking reconsideration of the Court’s March 12, 2012 Letter Order. Given the
fact that one of PPPI’s main bases for seeking reconsideration of the Court’s March 12, 2012
Letter Order regarding the appropriate scope of additional CH2M Hill discovery is that PPPI
believed the Court would request formal motion practice on said issue before rendering a
decision on same, the Court certainly wasn’t going to rule on PPPI’s request for reconsideration
without a formal motion. Indeed, in light of PPPI’s reason for seeking reconsideration of the
March 12, 2012 Letter Order, the Court finds it ironic that PPPI submitted an informal letter
application for reconsideration, especially since, unlike discovery issues which are often
addressed informally, “[t]he language of [L.Civ.R. 7.1(i)] strongly suggests that a motion for
reconsideration should be by formal notice of motion[.]” See Comment to L.Civ.R. 7.1 at ¶6c
“Motions for Reconsideration, Form.”
10
as much when it submitted its third letter brief addressing the CH2M Hill discovery issue. In that
letter, PPPI explicitly states that it “is cognizant of the Court’s desire to resolve this production
question without the need for lengthy briefing and/or argument and has limited this submission
accordingly.” (Letter from Barbara Magel to Hon. Tonianne J. Bongiovanni, U.S.M.J. of
1/27/2012 at 1). Given PPPI’s acknowledgment in this regard, the Court does not understand
why PPPI was surprised when the Court rendered Its decision on the CH2M Hill discovery issue
without formal motion practice or an in-person conference.
In its motion for reconsideration, PPPI makes no attempt to square its earlier statement
with its current argument that it was surprised by the Court’s March 12, 2012 Letter Order.
Indeed, as noted by the United States, in its opening brief and attached exhibits, PPPI does not
even acknowledge that it submitted the January 27, 2012 letter, focusing only on its letters dated
January 13 and 19, 2012. (See PPPI Br. at 5 (stating that PPPI had submitted “two letters
providing only examples of how the requested documents were needed to establish affirmative
defenses and reviewing how PPPI had proposed to streamline its production approach” at the
time the Court entered the March 12, 2012 Letter Order) (emphasis added)). Moreover, in its
reply, while PPPI does acknowledge the fact that it submitted a letter to the Court dated January
27, 2012 (PPPI Reply Br. at 3 (referring to “the January 27, 2012 submissions”), PPPI does not
address its statement that it was “cognizant of the Court’s desire to resolve this production
question without the need for lengthy briefing and/or argument and has limited this submission
accordingly.” (Letter from Barbara Magel to Hon. Tonianne J. Bongiovanni, U.S.M.J. of
1/27/2012 at 1). Instead, PPPI focuses on the United States’ January 27, 2012 submission and
11
argues that it was unclear even to the United States whether the Court would require a formal
motion or hear argument on the CH2M Hill discovery issue:
While the United States takes great issue throughout its Opposition
with PPPI’s statements regarding PPPI’s understanding, the United
States’ own January 27, 2012 letter unequivocally confirms that the
United States was uncertain if the Court intended to “hear”
argument and/or request the parties to submit a “formal motion”
presenting the issue. (See United States’ January 27, 2012 Letter at
p. 1, “... in further support of the United States’ request for the
Court to hear or grant..., and at p. 14, “The United States is
prepared to file a formal motion at this time, ... or should the
[C]ourt decide the United States’ motion on the papers already
before it, the United States is prepared to submit a proposed
protective order ...). Indeed, if, as the United States argues, it was
so abundantly clear to the parties that the January 27, 2012
submission would be treated as the dispositive briefings on the
matter without any opportunity for either party to reply, then one
must wonder why the United States offered to file a formal motion
and did not provide the Court with a proposed protective order in
the first instance.
(PPPI Reply Br. at 2-3).
In the first instance, the Court, in determining whether to grant PPPI’s motion for
reconsideration, is more concerned with what PPPI reasonably believed, not the United States.
Secondly, however, the Court finds that the statements contained in the Untied States’ letter of
January 27, 2012 unequivocally establish that the Court had left open the possibility that It might
rule on the CH2M Hill discovery issue based on the informal letter briefs submitted to the Court
without formal motion practice or an in-person conference:
[The United States] submit[s] this supplemental letter, with leave
of the Court, in further support of the United States’ request for the
Court to hear or grant the government’s motion for entry of a
protective order limiting the scope of discovery of CH2M Hill
documents in this litigation to those documents already produced.
***
12
The United States seeks resolution from the Court on the scope of
CH2M Hill discovery. The phased, conditional discovery that
PPPI proposes is simply unworkable and comes at an unjustified
expense and undue burden to the Untied States. Accordingly, the
United States requests that the Court grant leave for the United
States to move for a protective order at this time or, alternatively,
that the Court decide the United States’ motion for a protective
order on the record already before the Court.
***
The United States seeks resolution from the Court on the scope of
CH2M Hill discovery. Accordingly, the United States requests that
the Court enter a protective order limiting the production of any
additional CH2M Hill documents at this time. The United States is
prepared to file a formal motion at ths time, or, should the Court
decide the United States’ motion on the papers already before
it, the United States is prepared to submit a proposed protective
order should the Court so require.
(United States’ Opp. at 1, 2, 14 (emphasis added)). Indeed, PPPI seems to ignore the United
States’ use of the conjunction “or” as well as the multiple instances in which the United States
acknowledged that the Court might choose to decide the CH2M Hill discovery issue on the
record already before It.
Thus, while the Court did not specifically advise the parties that It would consider their
informal letter briefs as the dispositive briefing on the CH2M Hill discovery issue, the Court
clearly indicated that this was an option. The United States clearly understood that this was the
case and the PPPI’s submissions suggest that it did as well. Why else would PPPI definitively
state that it was “cognizant of the Court’s desire to resolve this production question without the
need for lengthy briefing and/or argument and has limited this submission accordingly.” (Letter
from Barbara Magel to Hon. Tonianne J. Bongiovanni, U.S.M.J. of 1/27/2012 at 1). Under these
circumstances, the Court finds that no manifest injustice will result if the March 12, 2012 Letter
Order stands as entered. Consequently, PPPI’s motion for reconsideration is denied.
13
In light of the fact that the Court has denied PPPI’s motion for reconsideration, the Court
does not reach the question of whether the additional information provided in said motion would
have persuaded the Court that further CH2M Hill discovery is warranted. The Court does,
however, note that it appears unlikely, based on the Court’s initial review of PPPI’s
supplementation, that PPPI would have succeeded in establishing that the United States should
be compelled to produce all of the CH2M Hill employee files PPPI currently seeks. At first
blush, it appears that PPPI has still failed to provide sufficient evidence that all of the files are
relevant to its three affirmative defenses: inconsistency with NCP, statute of limitations and
divisibility/apportionment.
In this regard, the Court notes the paucity of legal support cited by PPPI in the sections of
its briefs addressing the relevancy of the files sought to its affirmative defenses. Indeed, the only
legal citations contained in Section B of PPPI’s opening brief, which is entitled “The CH2M Hill
Documents Sought By PPPI Are Clearly Relevant,” concern the general legal standard of
relevancy. PPPI does not cite to a single case, statute, rule or other law to support its arguments
that the files belonging to the nine CH2M Hill employees are, in fact, relevant to its affirmative
defenses. To be clear, PPPI’s entire analysis in its opening brief regarding how the CH2M Hill
employee files are relevant to its inconsistency with NCP, statute of limitations and
divisibility/apportionment defenses is devoid of any legal support. PPPI does not attempt to
analogize its current requests for information to other cases in which courts have found similar
information to be relevant; nor does PPPI support its conclusions, such as the following with any
legal citation (see generally PPPI Br. at 6-11): “[u]nderstanding these aspects [i.e. the nature of
the remedial work selected and the bases therefore] of the EPA approach to the Site are clearly
14
part of a showing of inconsistency with NCP to preclude cost recovery under CERCL” (Id. at 7)
or “[i]n any case, reliance on the administrative record does not translate into a limitation of
discovery to just that collection of documents.” (PPPI Reply Br. at 7).3
The lack of legal support provided by PPPI raises serious questions regarding whether
PPPI would have been successful in obtaining the requested discovery if the Court had granted
its request for reconsideration. Again, the Court does not ultimately decide that question in light
of its decision denying PPPI’s motion for reconsideration. Nevertheless, the Court simply notes
that it is not abundantly clear that PPPI would have succeeded even if its motion for
reconsideration had been granted.
3
While the Court is generally troubled by the dearth of legal support provided by PPPI,
the Court is particularly concerned with the second unsupported conclusion identified above.
PPPI’s conclusory statement that “reliance on the administrative record does not translate into a
limitation of discovery to just that collection of documents” (PPPI Reply Br. at 7) is especially
troubling in light of the legislative history surrounding the Superfund Amendment and
Reauthorization Action of 1986 (the “SARA Amendments”), which added Section 113(j) to
CERCLA, 42 U.S.C. §9613(j). As the House Report on the SARA Amendments indicates:
Reliance on an administrative record helps assure that the basis for
the response decision is clearly articulated and open to scrutingy by
the public and responsible parties. It also encourages full
responsible party and public participation in development of the
record before the remedy is selected. Moreover, limiting judicial
review of response actions to the administrative record expedites
the process of review, avoids the need for time-consuming and
burdensome discovery, reduces litigation costs, and ensures that
the reviewing court’s attention is focused on the . . . criteria used in
selecting the response.
H.R. Rep. No. 99-253, 99th Cong., 2d Sess. 81, reprinted in 1986 U.S. Code Cong. & Ad. News
2835, 2863. Given this legislative history, the Court would have expected PPPI to have provided
some support for the notion that discovery is not limited to the administrative record.
15
On a different note, the Court points out that in the March 12, 2012 Letter Order, It
determined that D. Zmudzin’s files were relevant to PPPI’s apportionment/divisibility defense
and that it would not be unduly burdensome for the United States to produce same. The Court
finds no reason to alter this determination. As a result, the United States is again directed to
produce all of D. Zmudzin’s files related to the development of depictions of plumes of
hazardous material released at the Pohatcong Site and potential source areas other than the
Washington plant. Further, as previously directed, to the extent the United States has already
produced said files, then it is instructed to specify the Bates Numbers of the documents
corresponding to same. The United States shall make this production no later than September
28, 2012.
III.
Conclusion
For the reasons stated above, PPPI’s motion for reconsideration is DENIED. An
appropriate Order follows.
Dated: August 14, 2012
s/ Tonianne J. Bongiovanni
TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE
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