Emhart Industries, Inc. v. New England Container Company, Inc et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
EMHART INDUSTRIES, INC., 	)
)
Plaintiff and Counterclaim 	)
Defendant, 	)
)
v. 	) 	C.A. No. 06-218 S
)
NEW ENGLAND CONTAINER COMPANY, 	)
INC; et al., 	)
)
Defendants and Counterclaim )
Plaintiffs. 	)
___________________________________)
)
EMHART INDUSTRIES, INC., 	)
)
Plaintiff and Counterclaim 	)
Defendant, 	)
)
v. 	) 	C.A. No. 11-023 S
)
UNITED STATES DEPARTMENT OF THE 	)
AIR FORCE; et al., 	)
)
Defendants, Counterclaim 	)
Plaintiffs, and Third-Party )
Plaintiffs, 	)
)
v. 	)
)
BLACK & DECKER, INC.; et al., 	)
)
Third-Party Defendants. 	)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before 	the 	Court 	is 	the 	Government’s 	Motion 	to 	Strike 	four
expert 	reports 	put 	forth 	by 	Emhart 	Industries 	Inc. 	(“Emhart”)
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(ECF 	No. 	229). 	The 	Government’s 	motion 	is 	DENIED 	WITHOUT
PREJUDICE.1
I. 	Background
The 	parties 	are 	familiar 	with 	the 	facts 	of 	this 	case, 	thus
only 	those 	facts 	pertinent 	to 	this 	motion 	will 	be 	discussed.
Generally 	speaking 	this 	case 	involves 	liability 	for 	the
pollution 	and 	environmental 	remediation 	of 	the 	Centredale 	Manor
Restoration 	Project 	Superfund 	Site 	(the 	“Site”). 	Aside 	from 	the
instant 	consolidated 	lawsuit, 	the 	Government 	and 	Emhart 	have
been 	engaged 	in 	an 	administrative 	tussle 	regarding 	the 	clean-up
of 	the 	Site 	for 	many 	years. 	As 	part 	of 	that 	process, 	the
Environmental 	Protection 	Agency 	(“EPA”) 	decided 	on 	five 	removal
actions 	for 	the 	Site, 	and 	ultimately 	proposed 	a 	six 	part 	remedy.
These 	remedial 	actions 	are 	all 	contained 	and 	discussed 	in 	the
administrative record.
In 	June 	2013, 	the 	Government 	sought 	to 	limit 	discovery 	and
evidence 	with 	respect 	to 	remedial 	actions 	to 	the 	administrative
record. 	During 	an 	August 	2013 	hearing, 	the 	Court 	reserved
decision 	on 	whether 	Emhart 	could 	supplement 	the 	administrative
record, 	but 	permitted 	discovery 	to 	continue 	with 	respect 	to 	the
1 Initially the Government’s motion sought to strike a fifth
expert 	report 	– 	that 	of 	attorney 	Jerome 	C. 	Muys. 	Thereafter,
Emhart 	withdrew 	the 	Muys 	report 	and 	the 	Government 	amended 	its
motion 	seeking 	to 	strike 	only 	the 	four 	remaining 	reports. 	(ECF
No. 260.)
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Government’s 	chosen 	remedy, 	recognizing 	that 	discovery 	may 	need
to be extended in this regard.
Emhart 	has 	now 	provided 	the 	Government 	with 	four 	expert
reports, 	which, 	at 	least 	in 	part, 	call 	into 	question 	the 	EPA’s
remedy 	at 	the 	Site. 	The 	Government 	asks 	the 	court 	to 	rule 	that
Emhart 	may 	not 	supplement 	the 	administrative 	record 	in 	this 	case
and 	strike 	these 	reports. 	Alternatively, 	the 	Government
requests 	that 	discovery 	with 	respect 	to 	these 	reports 	be 	delayed
until 	after 	a 	trial 	on 	the 	liability 	of 	Emhart 	and 	New 	England
Container Company, now scheduled to begin in February 2015.
II. 	Discussion
This 	case 	has 	been 	brought 	under 	the 	Comprehensive
Environmental 	Response, 	Compensation, 	and 	Liability 	Act
(“CERCLA”), 	42 	U.S.C. 	§ 	9601, 	et. 	seq. 	Under 	CERCLA, 	a 	district
court’s 	review 	“of 	any 	issues 	concerning 	the 	adequacy 	of 	any
response 	action 	taken 	or 	ordered 	by 	[EPA] 	shall 	be 	limited 	to
the 	administrative 	record.” 	42 	U.S.C. 	§ 	9613(j)(1); 	see 	also
United 	States 	v. 	JG-24, 	Inc., 	478 	F.3d 	28, 	33-34 	(1st 	Cir. 	2007)
(“Under 	CERCLA, 	judicial 	review 	normally 	is 	limited 	to 	the
administrative 	record 	as 	it 	existed 	at 	the 	time 	of 	the
challenged agency action.”).
The 	Court 	is 	bound 	to 	accept 	the 	EPA’s 	“response 	action
unless 	the 	objecting 	party 	can 	demonstrate, 	on 	the
administrative 	record, 	that 	the 	decision 	was 	arbitrary 	and
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capricious 	or 	otherwise 	not 	in 	accordance 	with 	law.” 	42 	U.S.C.
§ 	9613(j)(2). 	Courts 	have 	recognized 	that 	there 	are 	several
exceptions 	to 	this 	rule, 	however, 	where 	supplemental 	information
may 	be 	considered: 	(1) 	a 	showing 	of 	bad 	faith 	by 	the 	agency; 	(2)
a 	need 	for 	the 	testimony 	of 	experts 	in 	a 	highly 	technical
matter; 	(3) 	a 	record 	that 	is 	incomplete; 	and/or 	(4) 	a 	showing
that 	an 	agency 	failed 	to 	consider 	all 	relevant 	factors. 	See
e.g., 	Northwest 	Bypass 	Grp. 	v. 	U.S. 	Army 	Corps 	of 	Eng’rs, 	Civil
No. 	06-CV-00258-JAW, 	2007 	WL 	1498912, 	at 	*2 	(D.N.H. 	May 	14,
2007); 	United 	States 	v. 	Dravo 	Corp., 	No. 	8:01CV500, 	2003 	WL
21434761, at *2 (D. Neb. June 20, 2003).
While 	styled 	as 	a 	motion 	to 	strike, 	the 	Government’s 	motion
essentially 	renews 	its 	earlier 	request 	to 	confine 	any 	discussion
of 	remedy 	at 	the 	Site 	to 	the 	administrative 	record. 	Emhart
contends 	this 	issue 	is 	not 	ripe 	yet 	and 	discovery 	with 	respect
to 	these 	four 	reports 	should 	continue. 	Emhart 	argues 	that 	the
four 	reports 	provide 	insight 	into 	highly 	technical 	issues
related 	to 	the 	clean-up.2 Emhart 	also 	contends 	that 	because
liability 	and 	remedy 	are 	intertwined 	in 	this 	case, 	and 	these
reports 	properly 	discuss 	both 	issues, 	that 	striking 	these
reports 	in 	their 	entirety 	is 	too 	draconian 	a 	remedy,
particularly 	at 	this 	stage. 	While 	the 	question 	is 	somewhat
2 Emhart correctly states that these expert reports have not
been admitted into evidence.
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close, 	Emhart 	will 	be 	given 	leeway 	to 	develop 	these 	issues 	as
discovery 	continues 	and 	the 	Court 	will 	continue 	to 	reserve
judgment 	on 	whether 	Emhart 	will 	be 	allowed 	to 	supplement 	the
administrative record.
“[T]he 	discovery 	process 	is 	meant 	to 	give 	litigants 	an
opportunity 	to 	leave 	no 	stone 	unturned.” 	United 	States 	v. 	Bell
Petroleum 	Servs., 	Inc., 	718 	F. 	Supp. 	588, 	591 	(W.D. 	Tex. 	1989)
(permitting 	discovery 	outside 	of 	the 	administrative 	record 	in
CERCLA 	action). 	“[T]he 	completeness 	of 	the 	record 	and 	the 	good
faith 	behind 	it 	can 	only 	be 	grasped 	by 	looking 	beyond 	the 	record
itself. 	Thus 	. 	. 	. 	the 	only 	way 	a 	non-agency 	party 	can
demonstrate 	to 	a 	court 	the 	need 	for 	extra-record 	judicial 	review
is 	to 	first 	obtain 	discovery 	from 	the 	agency.” 	Amfact 	Resorts,
L.L.C. 	v. 	United 	States 	Dep’t 	of 	the 	Interior, 	143 	F. 	Supp. 	2d
7, 	12 	(D.D.C. 	2001). 	Similarly, 	where 	the 	complexity 	of 	the
issues 	is 	obvious 	and 	the 	administrative 	record 	is 	monstrous,3
limited 	discovery 	to 	establish 	whether 	further 	expert
explanation on these topics may be warranted is appropriate.
The 	Government 	may 	renew 	its 	motion 	to 	strike 	these 	reports
at 	a 	later 	date. 	The 	Court 	notes 	that 	the 	Government 	has
expressed 	concern 	that 	discovery 	with 	respect 	to 	these 	reports
may 	not 	be 	completed 	within 	the 	scheduled 	time 	frame 	and 	may
3 The 	Government 	has 	noted 	that 	the 	index 	of 	the
administrative record alone consists of over one-thousand pages.
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distract 	from 	liability 	discovery, 	potentially 	delaying 	the
trial. 	Discovery 	in 	this 	case 	has 	never 	been 	phased. 	However,
if, 	as 	discovery 	continues, 	discovery 	concerning 	these 	reports
becomes 	problematic, 	either 	the 	Government 	or 	Emhart 	may 	request
a 	stay 	or 	extension 	until 	after 	the 	first 	phase 	of 	trial 	is
complete.
III. Conclusion
For 	the 	reasons 	set 	forth 	above, 	the 	Government’s 	Motion 	to
Strike is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: 	June 20, 2014
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