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18 ELR 21024 | Environmental Law Reporter | copyright © 1988 | All rights reserved United States v. Seafab Metal Corp. No. C88-0087C (W.D. Wash. June 2, 1988)The court holds that review of an administrative order issued by the Environmental Protection Agency (EPA) under § 3013 of the Resource Conservation and Recovery Act (RCRA) requiring the operator of a lead fabrication plant to submit a proposal for monitoring and analysis of soils and groundwater is limited to the administrative record, and EPA's decision to issue the order was not arbitrary and capricious. The court first holds that judicial review is limited to the administrative record. None of the exceptions to record review applies and the materials defendant wishes to admit to supplement the record are not relevant to whether EPA's decision to issue the order was arbitrary and capricious. The court holds that EPA is entitled to summary judgment on liability. The EPA official who issued the order was acting within his authority. EPA's decision to issue the order was not arbitrary and capricious, since EPA established that there may be a substantial danger to human health or the environment from the high levels of hazardous waste at the facility. Finally, EPA followed the proper procedures in issuing the order. Counsel for Plaintiff Counsel for Defendant Coughenour, J.: Order on Pending Motions By this action, plaintiff is seeking this court's assistance to compel defendant's compliance with an administrative order. The action is before this court on the following motions: plaintiff's motion for protective order; defendant's motion to supplement the record; plaintiffs' motion to strike affidavits; and plaintiff's motions for summary judgment as to liability and to strike affirmative defenses. Having reviewed the papers on file and having heard oral argument, the court issues the following opinion: Background Seafab Metal Corporation, "Seafab," owns and operates a lead fabrication plant on a twenty-acre parcel on Harbor Island. Seafab acquired the facility in July, 1984. Uses of the facility before Seafab's acquisition included battery breaking, storae of battery components, lead fabrication, a lead oxide plant and a secondary lead smelting plant. Seafab applied to the Washington State Department of Ecology, "Ecology," for a hazardous waste permit in July, 1984, and submitted a revised application to the Environmental Protection Agency, "EPA," and Ecology in October, 1984. The permits qualified Seafab for interim status as a hazardous waste facility. When Seafab acquired the site there were several "waste piles," used for the storage of hazardous waste, and a "surface impoundment" facility. Under a confidential settlement agreement between Ecology and Seafab, those areas are being, or have been, closed down and cleaned up. The waste piles and impoundment facility were located on the southeast corner of the lot and covered a relatively small percentage of the total site. In October, 1986, the EPA determined that the presence or release of hazardous waste at the Seafab site possibly presented a substantial hazard to human health and/or the environment. The EPA's concern was not limited to the southeast corner of the site, but addressed soil and groundwater beneath the entire facility. An administrative order, the subject of this action, was issued under authority granted in 42 U.S.C. § 6934.[1] The order required Seafab to submit, within thirty days, a proposal for monitoring, testing, and analysis of soils and groundwater at the facility and off-site to ascertain the nature and extent of the hazards presented by conditions at the facility. Order at 11. The order invited Seafab to provide additional information and informed Seafab of its right to a conference on the order. In addition, the order advised Seafab that in the event Seafab failed to comply with the orderthe EPA could conduct the monitoring and testing and seek reimbursement from Seafab, or, alternatively, could bring a civil action to compel compliance. Order at 14-15. Seafab disputed the EPA determinations. After the thirty-day time limit, Seafab informed the EPA that Seafab would be implementing its own testing program. Seafab expressly stated that the testing program was not in response to the order. Despite the denial, the EPA responded to Seafab indicating that the proposed testing program did not satisfy the order. Faced with Seafab's failure to comply, the EPA initiated this action. Scope of Review Three of the motions before the court (plaintiff's motion for protective order; defendant's motion to supplement the record; and plaintiff's motion to strike affidavits) can be resolved by a determination of this court's scope of review. Seafab argues at various points in its pleadings that discovery should be permitted, that Seafab should be permitted to supplement the record, and/or that this court should review the agency's decision de novo. The EPA, on the other hand, argues vigorously that review should be limited to the record on which the agency based its decision. Judicial review of agency action is generally limited to the agency record, not a new record made by the reviewing court. Animal Defense Council v. Hodel, 840 F.2d 1432 [18 ELR 20497] (9th Cir. 1988) (quoting Florida Power and Light Co. v. Lorion, 470 U.S. 729, 743-44 [15 ELR 20321] (1985)). If the agency record does not support the agency's action or if the agency failed to consider all of the relevant factors, the proper course, with rare exceptions, is to remand to the agency. Florida Power and Light Co., [18 ELR 21025] 470 U.S. at 744. The Ninth Circuit has identified the following circumstances as justifying expanded review: (1) When necessary to explain agency action, the court may obtain explanation from the agency (by affidavit or testimony). Inquiry is limited to determining whether the agency considered all the relevant factors and explained the grounds for its decision. Animal Defense Council, 840 F.2d at 1436. (2) The court may also inquire outside of the record "when it appears the agency relied on documents or materials not included in the record." Id. (quoting Friends of the Earth v. Hintz, 800 F.2d 822, 829 [17 ELR 20030] (9th Cir. 1986)). (3) Where it is "necessary to explain technical terms or complex subject matter," the reviewing court may permit supplementation of the record through discovery. Id. (4) Finally, the court may look to an expanded record where there is a strong showing of agency bad faith or improper behavior. Id. at 1437 (quoting Public Power Council v. Johnson, 674 F.2d 791, 795 (9th Cir. 1982)). Because none of these exceptions applies in this action, this court has limited its review to the record before the agency. The materials Seafab seeks to admit to supplement the record generally relate to events which occurred after the order was issued and concern closure and clean-up of the waste piles and impoundment facility. The materials are not relevant to the question of whether the EPA's decision to issue the order, when it did, was arbitrary or capricious. Therefore, plaintiff's motion for a protective order is granted, defendant's motion to supplement the record is denied, and plaintiff's motion to strike affidavits is granted. Motion for Summary Judgment When considering a motion for summary judgment where the district court is reviewing a decision of an administrative agency, the function of the court is "to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Occidental Engineering Co. v. I.N.S., 753 F.2d 766, 769 (1985). The facts must be viewed in the light most favorable to the non-moving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356-57 (1986). Whether the EPA is entitled to summary judgment in its favor may be determined by resolution of the following: 1. Whether the official who issued the order was acting within his authority. 2. Whether the decision to issue the order was arbitrary and capricious (i.e., whether the decision was based on considerations of all of the relevant factors and whether there was a clear error in judgment).[2] 3. Whether proper procedures were followed. Asarco, Inc. v. U.S.E.P.A., 616 F.2d 1153, 1158 [10 ELR 20433] (9th Cir. 1980) (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 [1 ELR 20110] (1971)). 1. The order in question was issued by Charles E. Findley, Director, Hazardous Waste Division, Region 10. The authority vested in the administrator under § 3013 of the Resource Conservation and Recovery Act (42 U.S.C.A. § 6934) was delegated to the Regional Administrator, who in turn delegated the authority to the Director, Hazardous Waste Division. Seafab does not challenge Findley's authority. 2. In order to prevail, the EPA must establish that (1) the presence or release of hazardous waste (2) at a facility that is, or has been, used for the storage, treatment or disposal of hazardous waste (3) may present a substantial hazard to human health or the environment. If, in addition, the court finds the decision to issue the order was neither arbitrary nor capricious and was in accordance with the law, then the second element of the test in Asarco is satisfied. The legislative history of 42 U.S.C. § 6934 indicates that Congress intended to provide "a preventative tool whose trigger is unrelated to the timeframe in which an injury may occur. An actual hazard need not exist." E.I. Dupont de Nemours & Co. v. Daggett, 610 F. Supp. 260 [15 ELR 20745] (W.D.N.Y. 1985) (quoting 126 Cong. Rec. 3357 (February 20, 1980)). This background underscores a conclusion that the statute was triggered in this case. The record clearly indicates the presence or release of high levels of hazardous waste at a facility that has been used for the storage, treatment and disposal of hazardous waste. The conclusion that there may be a substantial risk to human health appears reasonable and is supported by the record. See Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 36 [6 ELR 20267] (D.C. Cir.) (en banc), cert. denied, 426 U.S. 941 (1976) (agency's decision is entitled to special deference when highly technical or scientific issues are involved). Given the minimal threshold to trigger section 6934, and reading the record in the light most favorable to Seafab, the record clearly supports a conclusion that there may be a sustantial hazard to human health or the environment. Further testing of the site, and surrounding sites if possible, appears to be necessary to determine whether such hazard in fact exists. In the absence of a good faith effort by Seafab to comply with the order or to propose an acceptable compromise, the EPA's decision to seek the court's assistance was appropriate. See also In re Order Pursuant to Section 3013(d) RCRA, Etc., 550 F. Supp. 1361, 1363 [13 ELR 20370] (W.D. Wash. 1982) ("Congress has granted to the Administrator of EPA the authority (and imposed a duty) to conduct monitoring, testing, and analysis of hazardous waste processing and storage facilities . . ."). 3. The agency followed the proper procedures. The order itself presents Seafab's obligations and options, as provided by section 6934. The results of non-compliance are set forth clearly. No formal hearing was held before the order was issued, but none is required by the act. See also In re Order, supra. Seafab does not allege that the agency failed to follow proper procedure. The three-part test in Asarco, supra, having been satisfied, the EPA's motion for summary judgment as to liability is granted. The Clerk of this Court is directed to send uncertified copies of this Order to all counsel of record. 1. 42 U.S.C. § 6934 includes the following language: (a) Authority of Administrator If the Administrator determines, upon receipt of any information, that -- (1) the presence of any hazardous waste at a facility or site at which hazardous waste is, or has been, stored, treated, or disposed of, or (2) the release of any such waste from such facility or site may present a substantial hazard to human health or the environment, he may issue an order requiring the owner or operator of such facility or site to conduct such monitoring, testing, analysis, and reporting with respect to such facility or site as the Administrator deems reasonable to ascertain the nature and extent of such hazard. . . . . (e) Enforcement The Administrator may commence a civil action against any person who fails or refuses to comply with any order issued under this section. Such action shall be brought in the United States district court in which the defendant is located, resides, or is doing business. Such court shall have jurisdiction to require compliance with such order and to assess a civil penalty of not to exceed $ 5,000 for each day during which such failure or refusal occurs. 2. The arbitrary and capricious standard applies under 5 U.S.C. § 706: 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 . . . In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. 18 ELR 21024 | Environmental Law Reporter | copyright © 1988 | All rights reserved |