American Farm Bureau Federation et al v. United States Environmental Protection Agency
Filing
92
ORDER - IT IS HEREBY ORDERED that Plaintiff's 82 Motion to complete the administrative record is GRANTED in part and DENIED in part: 1) The motion is GRANTED as to Plaintiffs' exhibits 2,3,6 and 7. (Docs. 85-2, 85-3, 85-6, and 85-7.) 2) T he motion is DENIED as to Plaintiffs' exhibits 4 and 5. (Docs. 85-4, 85-5.) 3) Plaintiffs' request for discovery is DENIED. The parties shall provide the court with proposed amended case management deadlines within fourteen (14) days of the issuance of this order.Signed by Honorable Sylvia H. Rambo on 12/28/11. (pjr)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AMERICAN FARM BUREAU
FEDERATION, et al.,
:
:
:
Plaintiffs
:
:
:
v.
:
:
:
UNITED STATES
:
ENVIRONMENTAL PROTECTION :
AGENCY, et al.,
:
:
Defendants
:
CIVIL NO. 1:11-CV-0067
Judge Sylvia H. Rambo
MEMORANDUM
Presently before the court is Plaintiffs’ motion to complete the
administrative record. (Doc. 82.) Plaintiffs are seeking to supplement the
administrative record with certain documents that they believe are relevant to the
underlying challenged action relating to the issuance of the Chesapeake Bay Total
Maximum Daily Load for Nitrogen, Phosphorus and Sediment (“TMDL”). Those
documents include email correspondence as well as an Agricultural Nutrient Policy
Council report (“ANPC Report”). Plaintiffs are also requesting leave to conduct
discovery to identify any additional documents that should be added to the
administrative record. The motion has been fully briefed and is ripe for disposition.
For the reasons set forth below, the motion will be granted in part and denied in part.
I.
Background
Plaintiffs filed their initial complaint on January 10, 2011, (Doc. 1),
followed by an amended complaint (Doc. 16) challenging the United States
Environmental Protection Agency’s (“EPA’s”) Chesapeake Bay TMDL. Plaintiffs
are seeking declaratory and injunctive relief against EPA, requesting that the court
vacate the TMDL. Plaintiffs allege that EPA lacked authority under the Clean Water
Act to issue the TMDL; the TMDL was arbitrary and capricious; EPA failed to
provide adequate public notice and comment on the TMDL in violation of the
Administrative Procedures Act (“APA”); and the TMDL is ultra vires.1
On September 1, 2011, EPA filed a notice of lodging the administrative
record and a certified index to the record. (Doc. 77.) Copies of the administrative
record were sent to the court and the parties.
On October 13, 2011, the court granted three motions for leave to
intervene as party defendants filed by various public interest and municipal groups.
(Doc. 87.)
On October 11, 2011, Plaintiffs filed the present motion to complete the
administrative record and brief in support. (Docs. 82 & 85.) Briefs in opposition
were filed by Defendant EPA (Doc. 88) and Defendant-Intervenors (Doc. 89) on
October 28, 2011. A reply brief was filed on November 14, 2011. (Doc. 91.) Thus,
the motion is ripe for disposition.
II.
Discussion
Plaintiffs argue for the inclusion of certain EPA email correspondence
and an ANPC Report in the administrative record. Plaintiffs argue that these
documents were before EPA at the time it was drafting the Bay TMDL and they were
1
For further discussion of the factual and legal background, parties may refer to this
court’s memorandum and order dated October 13, 2011. Am. Farm Bur. Fed. v. EPA, 2011 U.S. Dist.
LEXIS 118233 (M.D. Pa. Oct. 13, 2011) (granting motions for intervention).
2
also considered by EPA during the drafting process, thus making them appropriate
for inclusion in the administrative record. In response, EPA and DefendantIntervenors argue primarily that these documents were not relevant to the final
TMDL and, thus, were properly excluded from the administrative record. The court
will examine each document and the parties’ respective arguments in more detail
below, but first a threshold determination must be made regarding the propriety of
supplementing, or completing, the administrative record.
A challenge to an administrative action under the APA raises a unique
set of issues. First, when reviewing the propriety of an agency action, the court is
required to apply the familiar “arbitrary and capricious” standard from the APA.
Section 706 of the APA provides that:
To the extent necessary to decision and when presented,
the reviewing court shall decide all relevant questions of
law, interpret constitutional and statutory provisions, and
determine the meaning or applicability of the terms of an
agency action. The reviewing court shall –
***
(2) hold unlawful and set aside agency action,
findings, and conclusions found to be–
(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.
5 U.S.C. § 706. This standard requires the court to walk a fine line of conducting a
“searching and careful” inquiry into the administrative record to determine whether
the agency’s decision was “based on a consideration of the relevant factors and
whether there has been a clear error of judgment” while, at the same time, refraining
from substituting its own judgment for that of the agency. Citizens Advisory Comm.
on Private Prisons v. Fed. Bur. of Prisons, 197 F. Supp. 2d 226, 240 (W.D. Pa.
2001) (quoting Citizens to Protect Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17
3
(1971) and Soc’y Hill Towers Owners’ Assoc. v. Rendell, 201 F.3d 168, 178 (3d Cir.
2000)).
To conduct an effective judicial review of an agency action, a court
must have at its disposal “the whole record or those parts of it cited by a party.” 5
U.S.C. § 706. The Supreme Court, in its seminal Overton Park decision, clarified
that judicial review “is to be based on the full administrative record that was before
the [agency] at the time it made its decision.” 401 U.S. at 420. Therefore, it follows
that a reviewing court cannot consider matters not before the agency. Nor can the
court engage in a de novo review, absent extraordinary circumstances not applicable
here.2 It has been repeatedly stated that “the focal point for judicial review should be
the administrative record already in existence, not some new record made initially in
the reviewing court.” United States v. Keystone Sanitation Co., 1996 U.S. Dist.
LEXIS 22808, *10 (M.D. Pa. Aug. 27, 1996) (quoting Camp v. Pitts, 411 U.S. 138,
142 (1973)). The “whole record” consists of materials either directly or indirectly
considered by the decision maker. Keystone Sanitation, 1996 U.S. Dist. LEXIS
22808, *23 n.6 (citing Wade v. Dole, 631 F. Supp. 1100, 1107 (N.D. Ill. 1986), aff’d
813 F.2d 798 (7th Cir. 1987)); see also Bar MK Ranches v. Yuetter, 994 F.2d 735,
2
In general, a reviewing court is “not empowered to conduct a de novo inquiry into the
matter being reviewed and reach its conclusions based on such an inquiry.” Am. Bankers Assoc. v. Nat.
Credit Union Admin., 513 F. Supp. 2d 190, 197 (M.D. Pa. 2007) (quoting Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985)). The Supreme Court recognized two exceptions to this rule: “de novo
review is appropriate only where there are inadequate factfinding procedures in an adjudicatory
proceeding, or where judicial proceedings are brought to enforce certain administrative actions.” Camp
v. Pitts, 411 U.S. 138, 141-42 (1973) (per curiam). More recently, the Third Circuit acknowledged the
continued viability of these exceptions. NVE, Inc. v. HHS, 436 F.3d 182, 189 (3d Cir. 2006). However,
neither exception is applicable here, nor do the parties advocate for the court’s de novo review in this
instance.
4
739 (10th Cir. 1993); Ohio Valley Envt’l Coalition v. Whitman, 2003 U.S. Dist.
LEXIS 148, *8 (S.D. W.Va. Jan. 6, 2003).
Because the court is reviewing an agency’s decision, the agency is
rightly tasked with the burden of preparing the record consisting of those documents
that it “directly or indirectly considered” in making that decision. If an agency
certifies that the administrative record is full and complete, the court “assumes that
the agency properly designated the Administrative Record absent clear evidence to
the contrary.” Citizens Advisory Comm., 197 F. Supp. 2d at 240 (quoting Bar MK
Ranches, 994 F.2d at 740). Here, EPA filed an administrative record that includes
documents it considered in making its decisions related to pollution limits set forth in
the Bay TMDL. (Doc. 77.) EPA subsequently agreed to supplement the record with
additional documents, at Plaintiffs’ request, that it admits were erroneously or
inadvertently omitted from the record. EPA has otherwise certified that the record in
this case is true and correct. Thus, the court will assume, absence a clear showing to
the contrary, that the record is complete.
However, notwithstanding this presumption in favor of EPA, EPA does
not have complete control over the contents of the administrative record. Indeed,
“the whole administrative record . . . is not necessarily those documents that the
agency has compiled or submitted as ‘the’ administrative record.” Ohio Valley, 2003
U.S. Dist. LEXIS 148, *8 (quoting Thompson v. U.S. Dept. of Labor, 885 F.2d 551,
555 (9th Cir. 1989)). Restricting judicial review to whatever documents an agency
submits “would permit an agency to omit items that undermin[e] its position.” Id.
(citing Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir.
1984)). Accordingly, the courts must engage in an appropriate review to ensure that
5
the full and complete administrative record has been submitted. See Int’l
Longshoreman’s Assoc. v. Nat’l Mediation Bd., 2006 U.S. Dist. LEXIS 4080, *7
(D.C. Cir. Jan. 25, 2006) (“It is improper for a district court to review only a ‘partial
and truncated [administrative] record.’” (quoting Natural Res. Def. Council, Inc. v.
Train, 519 F.3d 287, 291 (D.C. Cir. 1975))).
Because judicial review is limited to the administrative record, there are
only few instances where a court is justified to look beyond the administrative
record. As this court noted in United States v. Keystone Sanitation Co., Inc., such
justifications may occur where:
(1) judicial review is impeded because the record fails to
explain the agency’s action, [citing Camp, 441 U.S. at 14243]; (2) the record is incomplete, [citing Texas v. Steel Co.,
93 F.R.D. 619, 621 (N.D. Tex. 1982)]; (3) the agency
failed to consider all relevant factors, [citing Florida Power
& Light Co., 470 U.S. at 744]; or (4) there is a strong
showing that the agency engaged in improper behavior or
acted in bad faith, [citing Volpe, 401 U.S. 420].
1995 U.S. Dist. LEXIS 22371, *11 (M.D. Pa. July 31, 1995). Plaintiffs here are
arguing that the record is incomplete.
EPA argues that adding the suggested documents to the administrative
record would be improper because Plaintiffs failed to show bad faith on behalf of
EPA. (Doc. 88 at 13-21 of 29.) However, several courts have recognized a
distinction between a motion to complete the administrative record and a motion to
supplement the administrative record. See Ohio Valley, 2003 U.S. Dist. LEXIS 148,
*10 (noting that “plaintiffs do not seek to supplement the administrative record in the
sense of adding documents to the record that were neither before the agency nor
considered in the decision-making process . . . . Instead, the plaintiffs contend that
the EPA has not submitted to the court all of the materials that properly constitute the
6
complete administrative record”); Miami Nation of Indians v. Babbitt, 979 F. Supp.
771, 777, 781 (N.D. Ind. 1996) (directing the government to complete the record
with various materials and explaining that the plaintiff “correctly respond[ed]” to the
government’s objection by clarifying “that they do not seek supplementation of the
administrative record, but rather they seek to complete the current record to include
materials that should have been there from the start.”)
Generally, supplementation of the administrative record implies either:
1) the addition of newly created evidence, such as through the collection of direct
testimony from agency decision makers, typically requested by the court to explain
part of the record or 2) the addition of documents or other information that were not
before the agency when the decision was made, such as post-decision comments or
studies. See James N. Saul, Overly Restrictive Administrative Records and the
Frustration of Judicial Review, 38 ENVTL. L. 1301, 1320 (2008). By contrast,
completion of the record implies the addition of only those relevant documents that
were actually available to, and considered by the agency at the time the decision was
made and, therefore, should have been part of the record but were improperly
excluded. Id. This distinction is critical because it is well-established that, where a
plaintiff contends that an agency has not submitted to the court all the materials that
properly constitute the administrative record, no showing of bad faith or improper
purpose is necessary. Overton Park, 401 U.S. at 420 (clarifying that a showing of
bad faith is only required where the method of supplementation involves testimony
inquiring into the mental processes of the administrative decision makers); Ohio
Valley, 2003 U.S. Dist. LEXIS 148, *10-11 (where “Plaintiffs contend that EPA has
not submitted to the court all the materials that properly constitute the complete
7
administrative record . . . no showing of bad faith for improper purpose is necessary);
Ad Hoc Metals Coalition v. EPA, 227 F. Supp. 2d 134, 140 n.5 (D.C. Cir. 2002)
(same). Here, Plaintiffs are not requesting that testimonial evidence explaining the
actions of the decision makers be added to the record; rather, they are requesting the
record be completed with documents they argue should have been a part of the
administrative record from the start. Thus, EPA’s argument that Plaintiffs’ motion
should be denied because Plaintiffs failed to make a showing of bad faith is
discredited.
Accordingly, Plaintiffs should be permitted to complete the
administrative record, provided they can make a clear showing that the documents at
issue were before the agency and were considered, directly or indirectly, by EPA
during the TMDL drafting process. The court will examine each document in turn.
A.
ANPC Report
In October 2010, the U.S. Department of Agriculture Natural Resource
Conservation Service (“NRCS”) released a draft report analyzing the percentage of
various land uses in the Chesapeake Bay Watershed. Assessment of the Effects of
Conservation Practices on Cultivated Cropland in the Chesapeake Bay Region –
Review Draft, (Oct. 2010) (“NRCS Report”). This report has been submitted as part
of the administrative record. (AR0032818 to AR0032978). The land use estimates
in the NRCS Report differed from the estimates EPA used to develop the final
TMDL. NRCS provided EPA with a chart of those differences on September 14,
2011, which has also been submitted with the record. (AR0029774-75).
On December 8, 2010, the Agricultural Nutrient Policy Council released
a report analyzing the differences between the assumptions underlying the EPA’s
8
TMDL models and the NRCS Report. See LimnoTech, Comparison of Draft Load
Estimates for Cultivated Cropland in the Chesapeake Bay Watershed, (Dec. 8, 2010)
(“ANPC Report”). (Doc. 85-7.) The Report questioned the validity of the EPA
models and suggested that the TMDL be reassessed in light of the NRCS Report.
(Doc. 85-7 at 10.) EPA ultimately did not reassess or modify its models in response
to the ANPC Report and did not include the ANPC Report in the administrative
record.
Plaintiffs argue that the ANPC Report should be a part of the
administrative record. In support, they point out that the Report was “before” the
EPA at the time it made its decision, noting that the Report was obtained by EPA on
December 9, 2010, prior to the issuance of the final TMDL on December 29, 2010.
(Doc. 85 at 17 of 27; see also Doc. 88-1, Decl. of Gary Shenk.) In its response, EPA
does not appear to dispute this point, and states:
Contrary to Plaintiffs’ unsupported allegations, EPA did
not exclude the ANPC report from the record . . . because
the EPA did not receive the report until after the public
comment period, which closed on November 8, 2011.
[citation omitted]. Rather, EPA determined it could
proceed with the TMDL and give full consideration to the
ANPC report as part of its ongoing review and future
updates of the TMDL.
(Doc. 88 at 19, 20 of 29.)3 In other words, EPA argues that the Report contained
fundamental errors and therefore did not contain relevant information to be
considered regarding the final Bay TMDL. (Id. at 18 of 29.) Defendant-Intervenors
3
EPA does note that it received the Report “a mere 20 days before the TMDL was
signed” and that the EPA ordered that “a full analysis” of the ANPC Report be conducted by EPA “on a
timeline extending beyond the establishment of the Bay TMDL – then a mere three weeks away.” (Doc.
88 at 18 of 29.) Though the temporal proximity of the EPA’s receipt of the Report and the promulgation
of the TMDL is noted, it does not change the fact that the Report was “before” the EPA prior to the
issuance of the final TMDL.
9
further argue that Plaintiffs’ motion should be denied because the ANPC Report is
“deeply flawed.” (Doc. 89 at 10-14.)
EPA’s stance that a document that is considered but dismissed as
unworthy ought to be omitted from the record represents a misinterpretation of the
standard. As stated, EPA is required to include on the administrative record any
materials that it either directly or indirectly considered during the decision process.
EPA’s own exhibit demonstrates that the Report was considered by EPA and
ultimately determined to be faulty and designated for further review subsequent to
the issuance of the TMDL. Attached as Exhibit 1 to EPA’s response is the
Declaration of Gary Shenk, Integrated Analysis Coordinator for the Chesapeake Bay
Program Office (CBPO), EPA Region III. (Doc. 88-1.) In that Declaration, Mr.
Shenk states:
I joined the [December 9, 2010 press conference call
regarding the ANPC report] approximately 30 minutes
after the beginning of the conference. I learned that the
ANPC report compared the draft CBP Watershed Model
with a draft USDA-CEAP report on the Chesapeake. The
press release contained information on how to obtain the
report through the internet, and the CBPO obtained it by
downloading the report through the internet on December
9, 2010.
***
Following receipt, I read the ANPC report and observed it
addressed issues that had already been analyzed by EPA
CBPO in our earlier comparison of the CBP Watershed
Model with USDA’s CEAP model.
***
Upon reading the ANPC report in December 2010, I found
many of the results in the ANPC report scientifically
invalid. The ANPC report evaluated the Bay TMDL,
which was made with one model (the CBP Watershed
Model) - with another model (USDA-CEAP model). This
is a fundamental flaw of the ANPC report as it ignores the
inherent differences that exist between any two models. . . .
Based on my knowledge of the two models, the earlier
EPA and USDA analysis to compare the two models, and
10
my general knowledge of modeling and TMDLs, it was
apparent that many of the conclusions in the December 8,
2010 ANPC report were not valid.
***
Because I knew there were fundamental errors in the
ANPC report, I concluded that EPA did not need to
consider the ANPC report in the 2010 TMDL decision, but
would, instead, undertake an analysis of, and response to,
the ANPC report after the TMDL was established. Lewis
Linker and Kelly Shenk, both EPA employees working at
the CBPO, also read the ANPC report after we received it
on December 9 and agreed with my conclusions.
***
EPA began to draft an analysis of, and response to, the
ANPC report early in January 2011 and had largely
completed the analysis and response by February 1, 2011.
(Doc. 88-1, ¶¶ 4-8.) From this, it is apparent that several EPA staff members
received, reviewed, and analyzed the ANPC Report prior to the issuance of the
TMDL. At least one EPA employee participated in a media conference call
discussing issues and concerns raised in the ANPC Report. These employees
dismissed “many” (but apparently not all) of the conclusions in the Report, but were
nevertheless sufficiently concerned to order further review, albeit subsequent to the
issuance of the final TMDL. Accordingly, it is clear that EPA, if nothing more,
“considered” the Report during the drafting of the TMDL. That the EPA ultimately
dismissed many of the conclusions drawn from the Report does not change this fact.
Defendant-Intervenors’ argument that the Report should not be included because it
is, in its view, deeply flawed, also misses the point. The question here is not the
validity of the Report, but rather whether the Report was considered by EPA. The
court finds it was so considered and, accordingly, the ANPC Report will be added to
the administrative record.
B.
Modeling-Related Emails
11
Plaintiffs also seek to supplement the record with two emails that
discuss EPA’s modeling. (Doc. 85-3 (“Perkinson email chain”); Doc. 85-4 (“March
14 Pollock email chain”).) Plaintiffs argue that those emails identify concerns with
how EPA changed the watershed model between two versions, version 5.2 and 5.3.
(Doc. 85 at 20 of 27.) Plaintiffs further argue that these documents call into
question how version 5.3, which was used to develop the final TMDL, fails to
account for critical agricultural nutrient management practices. (Id.) EPA and
Defendant-Intervenors retort that those emails were not considered by EPA in
connection with the issuance of the TMDL because their primary purpose was to
discuss procedural matters that had no significance regarding EPA’s decisionmaking process. (Doc. 88 at 20 of 29; Doc. 89 at 18 of 25.)
To understand these emails contextually, it is helpful to know that a
TMDL itself is only informational in nature. The Bay TMDL is designed such that it
is implemented and executed by the states within the Chesapeake Bay Watershed,
which include Virginia, Maryland, Pennsylvania, New York, Delaware, West
Virginia, and the District of Columbia. Each state in the Chesapeake Bay watershed
must develop a watershed implementation plan (“WIP”) – which is subject to EPA
approval – that describes how they will achieve their respective allocations under the
TMDL. 33 U.S.C. § 1313. In other words, while the TMDL sets the goals, actual
execution is carried out by the states. Here, EPA initially rejected all the WIPs
submitted by the states and applied its own “backstop measures.” (Doc. 85 at 8 of
27.)
Although not raised by EPA, the court is sensitive to the inclusion on
the record of internal agency deliberative correspondence. This court is concerned
12
that the inclusion of documents reflecting internal agency deliberations might hinder
candid exchanges among agency employees regarding proposed decisions and
alternatives. See Ad Hoc, 227 F. Supp. 2d at 143 (“To require the inclusion in an
agency record of documents reflecting internal agency deliberations could . . . ,
because of the chilling effect on open discussion within agencies, lead to an overall
decrease in the quality of decisions.”) (citing San Luis Obispo Mothers for Peace v.
Nuclear Regulatory Comm’n, 751 F.2d 1287, 1326 (D.C. Cir. 1984)). There are,
however, several unique circumstances present here that militate in favor of inclusion
of at least some of the emails. First, a TMDL, by its nature, demands cooperative
federalism and requires significant levels of coordination and communication
between EPA and the state environmental agencies in the seven Bay Jurisdictions.
This TMDL, in particular, is the largest TMDL promulgated by EPA, encompassing
six states and the District of Columbia. EPA simply could not implement the TMDL
without communicating with the states. Second, the administrative record is
massive, consisting of DVDs that contain 38,060 Bates-stamped documents and a
file transfer protocol (“FTP”) website containing an additional 100,831 electronic
files. EPA has also agreed to add 2,410 documents that were inadvertently omitted
from the record. What Plaintiffs are seeking to add to the record here is five emails
and one report, totaling approximately thirty-seven pages. In addition, a review of
the administrative record lodged by EPA reveals that numerous emails have been
submitted as part of the administrative record. Many of these emails pertain directly
to state WIPs.4 Thus, it would appear as though EPA has minimal concern regarding
4
See, e.g., AR0027055, AR0027081, AR0027084, AR0027088, AR0027105, AR0027109,
AR0027111, AR0027124, AR0027125, AR0027127, AR0027130, AR0027131, AR0027133,
(continued...)
13
disclosing emails sent from agency personnel. In light of these considerations,
disclosing certain emails may be proper if it is shown that EPA considered the
information contained therein.
The Perkinson email chain relates to WIP guidelines. The chain is
commenced by Jeff Corbin, senior advisor to the EPA Regional Administrator,
asking Perkinson, an Assistant Division Director in the Virginia Department of
Conservation and Recreation (“VA-DCR”) if the WIP guidelines have been helpful
in giving VA-DCR employees a “better understanding of what needs to be in the
WIPs and how EPA will judge the adequacy of the WIPs.” (Doc. 85-3.) Perkinson’s
response indicates the above-mentioned concerns regarding the different modeling
versions.
The court finds the Perkinson email chain should be included on the
administrative record. The email chain was commenced by a senior advisor to the
EPA Regional Administrator who was requesting feedback from a VA-DCR
employee regarding the WIP guidelines. It is hard to imagine how such feedback
was not, at a minimum, considered by EPA during the TMDL drafting process.
EPA’s bald argument that the email had no significance to EPA’s decision lacks
merit and fails explain why it has no significance or why it was not considered. The
fact that EPA included other emails by the same author on the same topic (WIPs) in
the administrative record strongly suggests that this email is relevant and was
considered by the EPA. Accordingly, it will be added to the record.
4
(...continued)
AR0027137, AR0027139, AR0027142, AR0027156, AR0027159, AR0027162, AR0027165, AR0027169,
AR0027171, AR0027173, AR0027179, AR0027181, AR0027183, AR0027200, AR0027202,
AR0027203, AR0027206, AR0027210, AR0027214, AR0027216. This list represents only some of the
emails in the administrative record. The italicized bates labels represent emails relating to state WIPs.
14
Plaintiffs’ motion with regard to the March 14 Pollack email chain,
however, will be denied. This email differs from the Perkinson email chain in two
ways. First, the chain was commenced by a Virginia Department of Environmental
Quality (“VA-DEQ”) employee, not by an EPA employee soliciting feedback.
Second, the email chain was commenced for the purpose of announcing a
postponement of a stakeholder advisory group meeting. Although there is reference
to watershed modeling by the VA-DEQ employee, there is no evidence to suggest
that EPA considered this email in any way in drafting the TMDL. The burden is on
Plaintiffs to show not only that the document is relevant, but also that it was
considered by EPA during the TMDL drafting process. The simple fact that an email
chain pertains to the TMDL and includes an EPA employee, without more, is not
sufficient to overcome the presumption that the certified record is otherwise true and
correct.
C.
Allocation Emails
Plaintiffs also claim that EPA has excluded from the record three
documents relating to the detailed pollutant allocation in the TMDL. (Doc. 85-2
(“March 22 Pollack email chain”); Doc. 85-5 (“Corbin email”); Doc. 85-6 (“Shenk
email chain”).) Plaintiffs believe that these emails reveal how EPA arrived at the
pollution allocations in both the draft and final WIPs. (Doc. 85 at 15 of 27.) EPA
argues that these documents were properly excluded from the record because they
reflect discussions between EPA and a VA-DEQ employee regarding Virginia’s
draft WIP, not the final WIP. (Doc. 88 at 17 of 29.) EPA further argues that the
Shenk email chain is “largely transmittal” and was properly left out of the record
“because any arguably relevant substantive content is repeated in greater detail in the
15
seven-page attachment [to the email] which, itself, is part of the record.” (Id.) The
court will review each email in turn.
The March 22 Pollack email chain, like the Perkinson email chain
discussed above, was commenced by EPA Senior Advisor Jeff Corbin requesting
feedback from a VA-DEQ employee regarding the WIP guidelines. In response,
Allan Pollack, of VA-DEQ discusses, inter alia, pollution load allocations. For the
same reasons discussed above regarding the Perkinson email chain, the March 22
Pollack chain will be included on the record.
The Corbin email (Doc. 85-5), however, will not be included on the
record. This is an email from Corbin to Anthony Moore (position unknown)
indicating a timeline for submission of Virginia’s WIP and also indicating that
Virginia’s WIP will satisfy EPA’s draft allocations. Unlike the emails above,
Corbin’s email is not requesting feedback regarding WIPs. Moreover, no response is
given. This is a one-way email from EPA transmitting information. In other words,
there is no outside information offered for EPA to “consider” in regards to the
TMDL. Had Corbin requested information relevant to the TMDL and a response
been received, then, for the same reasons above, the court could safely assume that
the requested information was considered by EPA. This is not the case here, and
thus this is the type of transmittal, deliberative email that is properly excluded from
the record.
Finally, the court finds the Shenk email chain should be included for
several reasons. First, the court is unmoved by EPA’s argument that the emails were
not relevant to the final TMDL because they related only to draft WIPs. The
administrative process is one of proposals, drafts, comments, revisions and final
16
drafts and the materials produced in this process are typically part of the
administrative record. Ohio Valley, 2003 U.S. Dist. LEXIS at *20 (citing
Connecticut v. Daley, 53 F. Supp. 2d 147, 159 (D. Conn. 1999)). The court is also
unmoved by EPA’s argument that any relevant content is repeated in the attachment
to the email, which is already part of the record. If anything, this argument vouches
for the email’s relevancy. Moreover, that the email might present cumulative
information is no reason to deny completion of the record. See Ad Hoc, 227 F. Supp.
2d at 139 n.4. Thus, the court will include these emails in the administrative record.
D.
Discovery
Plaintiffs also seek leave to conduct additional discovery to determine
the completeness of the administrative record. Plaintiffs would like to conduct
limited discovery for “additional ‘Agricultural Related Documentation,’ including
those documents that relate to the technical issues discussed in the ANPC Report,
and specifically for those documents created between EPA’s receipt of the ANPC
Report and EPA’s promulgation of the final TMDL, and/or a deposition of an EPA
witness who can speak to the agency’s internal discussions and decisions prior to and
following receipt of the ANPC Report.” (Doc. 85 at 22 of 27.) In support, Plaintiffs
note that the number of agricultural-related documents following EPA’s receipt of
the ANPC Report is “sketchy and less than one would expect.” (Id.) They further
argue that the fact that the ANPC Report was omitted from the record is evidence
that other similar documents may also be missing from the record. (Id. at 23 of 27.)
Lastly, Plaintiffs argue that the administrative record here is inconsistent with other
TMDL administrative records where correspondence, draft documents, and technical
reports that reflect EPA’s full review process and deliberations were included. (Id.)
17
Notwithstanding the court’s finding that several documents should be
added to the record, Plaintiffs have failed to make a showing that additional
discovery is warranted. “There is a strong presumption against discovery into
administrative proceedings born out of the objective to preserve the integrity and
independence of the administrative process.” NVE, Inc. v. Dept. of Health and
Human Servs., 436 F.3d 182, 195 (3d Cir. 2006); see also Am. Bankers Assoc. v.
Nat’l Credit Union Admin., 513 F. Supp. 2d 190, 200 (M.D. Pa. 2007). Historically,
the Third Circuit permitted discovery only in cases involving alleged bias on the part
of the agency. NVE, supra, (citing Grant v. Shalala, 989 F.2d 1332, 1334 (3d Cir.
1993) and Hummel v. Heckler, 736 F.2d 91 (3d Cir. 1984)). In NVE, the Third
Circuit enunciated another exception to the strong presumption against discovery: a
materially deficient administrative record. Id. at 195; Am. Bankers Assoc., 513 F.
Supp. 2d at 201 (“[T]he court [in NVE] identified two situations where discovery
might be permitted: (1) where plaintiff alleges that bias corrupted the agency’s
decision; and (2) where factors indicate that the administrative record submitted to
the district court is incomplete.”). Thus, to overcome the strong presumption against
discovery, Plaintiffs must make a strong showing of bias or incompleteness.
Here, Plaintiffs do not argue for discovery on the basis of bias, but
rather argue that “discovery is warranted because of EPA’s incomplete record and
the known existence of documents at the agency relevant to the decision under
review . . . .” (Doc. 85 at 21 of 27.) Although not specifically enumerated in NVE,
the court in American Bankers Assoc., supra, interpreted NVE to set forth three
factors to consider before permitting discovery where a plaintiff alleges that the
administrative record is incomplete: (1) the clarity of agency procedures that define
18
the scope of an administrative record; (2) an indication that important documents
were missing from the record; and (3) the size of the record. Application of these
factors militates against discovery.
None of the parties identify any agency rules or EPA policy document
defining the proper contents of the administrative record or the process by which a
record is compiled. Such rules or documents, if existing, can aid a reviewing court in
determining whether a plaintiff can make a threshold showing that the agency’s rules
were not followed, which would undermine the presumption against discovery. Am.
Bankers Assoc., 513 F. Supp. 2d at 202. Where no such rules exist,5 it is harder for a
reviewing court to discern whether the record presented is the “whole” record. Id.
Here, Plaintiffs only address this issue indirectly, arguing that the administrative
record here is inconsistent with the administrative records in two other TMDL cases.
However, some inconsistencies in the composition of the administrative record are
inevitable and do not amount to a strong showing required to permit discovery.
Absent any additional evidence that the agency failed to follow its own procedures
for compiling the record, the court will not permit discovery on this basis. See NVE,
436 F.3d at 195.
Second, notwithstanding the court’s finding that additional documents
should be added to the record, the court is not convinced that these documents were
so fundamental to EPA’s decision-making process so as to warrant discovery. Nor is
the court convinced that the absence of “agricultural-related emails” subsequent to
the issuance of the ANPC Report indicate that critical documents are missing from
5
Agencies are not required to establish such rules under the APA, and the court is not free
to impose such procedural requirements. Am. Bankers Assoc., 513 F. Supp. 2d at 202, n.10 (citing
Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990)).
19
the record. In Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982), the Second
Circuit remanded to the district court to permit discovery finding that “the factual
issue of what constituted the agency’s ‘informational base’ was in dispute, and that
summary judgment could not be granted ‘without at least permitting plaintiffs some
limited discovery to explore whether some portions of the full record were not
supplied to the Court.’” Am. Bankers Assoc., 513 F. Supp. 2d at 203 (quoting
Dopico, 687 F.2d at 654). The court indicated that there was a strong showing that
the record was not complete because “conspicuously absent were the very
[documents] themselves for the relevant years. It is almost inconceivable that such
fundamental documents – the very basis for federal decision-making about mass
transit grants – would not have been part of the administrative record.” Dopico, 687
F.2d at 654. Here, although Plaintiffs have successfully argued that some of the
emails and the ANPC Report were considered by EPA, the court does not find those
documents are “fundamental documents” that formed the basis for the issuance of the
TMDL. This is especially true where, as here, the administrative record consists of
tens of thousands of documents. In other words, although the court agrees with
Plaintiffs that some additional documents should be added to the record, the
importance of those documents is not clear. Absent a showing that “critical” or
“fundamental” documents were omitted, the presumption against discovery remains.
Plaintiffs’ additional argument that it is suspicious that there are
numerous agricultural-related emails prior to the issuance of the ANPC Report, but
very few after the issuance of the Report likewise does not pass muster. Plaintiffs’
argument amounts to “nothing more than speculation that the [agency] may not have
produced the full record.” NVE, 436 F.3d at 195. The Third Circuit has found that
20
requests for discovery based on such speculation fail to overcome the strong
presumption against discovery. Id. Accordingly, discovery is not warranted on this
basis.
Lastly, the size of the record, while not dispositive of the question of
whether discovery is appropriate, is nevertheless a factor that the court should
consider in deciding whether to take the “the unusual step of permitting invasive
discovery into administrative decision-making.” Id. at 196. In Exxon Corp. v. Dept.
of Energy, 91 F.R.D. 26 (N.D. Tex. 1981), the court found that a 126-page record
was “incomplete on its face,” finding that “‘it strains the imagination’ to assume that
this record contains all the information considered by the agency.” Id. at 34 (quoting
Tenneco Oil Co. v. Dept. of Energy, 475 F. Supp. 299, 317 (D. Del. 1979)). In NVE,
the Third Circuit distinguished Exxon, finding that the “breadth of the [133,000page] record submitted” did not suggest that the record was incomplete on its face
and thus found discovery was not warranted. 436 F.3d at 196. Here, the court is not
faced with a truncated record. Indeed, like NVE, the administrative record is
massive. That the parties dispute the validity of several documents is, given the size
of the record, neither surprising nor necessarily indicative of any wrongdoing. In
short, the court finds that Plaintiffs have failed to overcome the strong presumption
against discovery.
III.
Conclusion
In sum, the court finds that completion of the administrative record is
appropriate only for those documents that Plaintiffs have clearly shown were directly
or indirectly considered by EPA in conjunction with drafting and promulgating the
21
Bay TMDL. However, Plaintiffs’ discovery request will be denied because Plaintiffs
have not overcome the presumption against discovery into administrative
proceedings.
An appropriate order will follow.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: December 28, 2011.
22
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AMERICAN FARM BUREAU
FEDERATION, et al.,
:
:
:
Plaintiffs
:
:
:
v.
:
:
:
UNITED STATES
:
ENVIRONMENTAL PROTECTION :
AGENCY, et al.,
:
:
Defendants
:
CIVIL NO. 1:11-CV-0067
Judge Sylvia H. Rambo
ORDER
In accordance with the above memorandum, it is HEREBY
ORDERED that Plaintiffs’ motion to complete the administrative record (Doc. 82)
is GRANTED in part and DENIED in part:
1) The motion is GRANTED as to Plaintiffs’ exhibits 2, 3, 6 and 7.
(Docs. 85-2, 85-3, 85-6, and 85-7.)
2) The motion is DENIED as to Plaintiffs’ exhibits 4 and 5. (Docs. 854, 85-5.)
3) Plaintiffs’ request for discovery is DENIED.
It is FURTHER ORDERED that the parties shall provide the court
with proposed amended case management deadlines within fourteen (14) days of the
issuance of this order.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: December 28, 2011.
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