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United States v. Nicolet, Inc.

Citation: 17 ELR 21091
No. No. 85-3060, (E.D. Pa., 05/12/1987) Motion for protective order granted

The court holds that the government is entitled to a protective order to prevent a defendant in a cost recovery action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) from taking certain depositions because judicial review is limited to the administrative record under CERCLA § 113(j). The court holds that § 113(j), added by the Superfund Amendments and Reauthorization Act of 1986, applies retroactively to this action filed before the amendments were passed. None of the limited exceptions that would allow the court to supplement the administrative record are present. Defendant's allegations that the administrative record does not disclose the factors considered by the Environmental Protection Agency (EPA) or its construction of the evidence, and that the reasons given by EPA are inadequate, are unfounded. Defendant has not asserted sufficient justifications for its motions to depose a laboratory that conducted tests on samples taken from the site, members of EPA's response team, an official with the Centers for Disease Control, and a representative of an EPA contractor that performed testing and sampling at the site.

[Related decisions are published at 17 ELR 21085 and 21088.]

Counsel are listed at 17 ELR 21085.