United States of America et al v. NCR Corporation et al

Filing 683

ORDER DENYING 527 Motion for Reconsideration of 666 Decision and Order Denying Motion for Summary Judgment or, In the Alternative, to Supplement the Administrative Record, signed by Chief Judge William C Griesbach on 11/27/2012. The Court concludes that there is no basis to supplement the record with any of the information or additional expert testimony the Defendants now propose. See Order for full detail. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA and
STATE OF WISCONSIN,
Plaintiffs,
v.

Case No. 10-C-910

NCR CORP. et al.,
Defendant.

DECISION AND ORDER ON RECONSIDERATION

Some Defendants have moved for partial reconsideration of my Decision and Order denying
their motion to supplement the administrative record. (ECF No. 527.) A recent decision granting
summary judgment to the Plaintiffs (ECF No. 666) has essentially mooted this motion, but I explain
herein why the motion is denied.
The Defendants first ask that they be allowed to offer limited evidence from within the
administrative record itself to argue that the models were not calibrated. I considered and rejected
these arguments, based on the administrative record, in granting the Plaintiffs’ motion for summary
judgment. Accordingly, this request is moot. They further argue that Plaintiffs misrepresented the
fact that the model was calibrated. Again, this turns on what the definition of “calibrated” is, a
question I addressed in granting the Plaintiffs’ motion for summary judgment. (ECF No. 666 at 2326.)

1

Defendants also note that I cited extra-Record evidence in Dr. Zhang’s declaration in my
order denying their motion to supplement the record and suggest that this is inconsistent with the
rejection of the extra-Record evidence they seek to offer. But I cited Dr. Zhang’s declaration to
explain what the record contains and why it is sufficient; not to add material that is not already part
of the record. I likewise cited the arguments and evidence of Defendants’ experts as to what the
record was missing and why they thought supplementation was needed. (ECF No. 428 at 5.)
Indeed, in an earlier order, I granted NCR’s motion for reconsideration of the same decision and
agreed to consider the expert opinion for the limited purpose of evaluating whether the U.S.
Environmental Protection Agency and the Wisconsin Department of Natural Resources considered
all relevant factors when they made their remedy decisions. (ECF No. 522.)
Finally, the crux of the Defendants’ assertion is that the governments knew that the model
was imperfect but went forward with it anyway. They have cited extensive amounts of emails
among the key players that discuss, in sometimes frank terms, the model’s strengths and
shortcomings. The emails suggest that creating a complex model is a lot like making sausage, but
ultimately they merely underscore what the administrative record already shows, which is that the
model was an admittedly imperfect predictor of sediment. The documents in the administrative
record explained these shortcomings, however. More importantly, the record also makes clear that
calibration of the model was not a pass-fail type of arrangement. The Model Development Report
explains in some detail how the calibration process was viewed and concluded that the model was
deemed satisfactory despite the shortcomings the Defendants highlight. (ECF No. 569-2 at 86.)
That there are some extra-record exchanges among the various scientists involved does not change
any of these facts. For example, the Defendants cite a portion of the emails in which Mark Vellaux,
2

of the DNR, states that calibration of the model was “poor,” but they leave out the portion indicating
ways to improve it and indicating optimism about the model as a whole. (ECF No. 529-14 at 7.)
Moreover, Vellaux’ statement was not a final opinion about the model but merely a status update
during the development process.
The rest of the emails evidence a thorough review of the problem by the DNR scientists and,
if anything, underscore just how complex this entire process actually was. There is no suggestion
that data are being fudged or covered up; instead, one gets the impression that this kind of decision
is exactly the sort of technical, scientific decision to which courts are to defer. The scientific experts
hashed out solutions to the various problems and even “harangued” each other. (Id. at 19.) As
discussed in the Decision and Order granting the Plaintiffs’ motion for summary judgment, the
process was open and frank, and the limitations of the model with respect to sediment were not
deemed to be a significant enough problem to hold up the calibration. Vellaux admitted that the
“river model is not a perfect representation,” and that subsequent analysis will “focus on those
aspects of the model where performance is least strong.” (Id. at 18.) But he believed the present
model was a “good step forward” from previous efforts ands was usable for its intended purposes.
(Id. at 19.) Snippets of private emails removed from their context in the development stage of the
process do not overcome the whole picture, which shows that the key players were satisfied that the
model was adequate despite the obvious challenges it faced. Their reasons for reaching that
conclusion were neither arbitrary nor capricious.
In sum, although the emails are (naturally) more candid and casual in tone than the public
documents, there are no “smoking guns” in the emails or other evidence now cited that suggest the
result was the product of an arbitrary or capricious decision. Instead, the impression is that the
3

senders and recipients of the emails took the matter extremely seriously (the opposite of arbitrary)
and engaged in extensive and deliberate efforts (the opposite of capricious). Accordingly, I
conclude that there is no basis to supplement the record with any of the information or additional
expert testimony the Defendants now propose. The motion for reconsideration [527] is therefore
DENIED.
SO ORDERED this

27th

day of November, 2012.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

4