United States v. Akzo Coatings of America, Inc.

WELLFORD, Senior Circuit Judge,

concurring:

I am in accord with Judge Engel’s thorough statutory review in part I, which sets out the background of the law relating to hazardous waste sites and the particular site in this case. Judge Engel has also carefully recited the pertinent facts of this case in part II, including background data concerning the proposed consent decree which is at issue. He has also described the complex issues before us in this appeal (part III), and has, in my view, correctly described the standard of review problem we encounter in assessing each of the issues on appeal as to the consent decree and the administrative record (part IV). I concur in all respects with parts I through IVA, inclusive.

I disagree with the majority view expressed in part IVB because I am inclined to find that the district court did not err when it refused to consider Robert A. Hayes’ affidavit which was offered by the State of Michigan. I believe the district court followed our admonition in Norwich Eaton Pharmaceuticals, Inc. v. Bowen, 808 F.2d 486 (6th Cir.), cert. denied, 484 U.S. 816 , 108 S.Ct. 68 , 98 L.Ed.2d 32 (1987):

The District Court was required to review the agency’s decision that Buprenex was approved in 1981 to determine whether that decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” as specified in 5 U.S.C. § 706 (2)(A). The scope of review under this section is narrow: “In applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, *1460 411 U.S. 138, 142 , 93 S.Ct. 1241, 1244 , 36 L.Ed.2d 106 (1973).

As this Court recently noted in Upjohn Mfg. Co. v. Schweiker, 681 F.2d 480 (6th Cir.1982), de novo review of agency action is the exception rather than the rule, unless required by statute. “ \D ]e 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.’ ” Id. at 483 (quoting Camp v. Pitts, 411 U.S. 138, 142 , 93 S.Ct. 1241, 1244 , 36 L.Ed.2d 106 (1973)).

Thus, consideration of evidence outside the administrative record is proper under some circumstances, e.g., “for background information ... or for the limited purposes of ascertaining whether the agency considered all the relevant factors or fully explicated its course of conduct or grounds of decision.” Id. (citations omitted).

Moreover, the District Court stated in its Order that it based is decision upon its “review of the administrative record, the memoranda and the arguments by counsel.” Joint Appendix at 263. The Order does not reveal that the District Court used any evidence outside the administrative record in reaching its decision. Thus, we find that the District Court did not conduct a trial de novo and that the Government’s contention that the District Court based its decision on information outside the administrative record is without merit.

Norwich Eaton, 808 F.2d at 489 .

A court should admit affidavits that are not part of the record only for the limited purposes of providing “background information,” considering whether the agency fully explained “its course of conduct” or determining “whether the agency considered all relevant factors.” In Norwich Eaton, we affirmed the district court’s decision because it was not based on outside-the-record information. I, therefore, conclude that Norwich Eaton does not mandate consideration of the Hayes’ affidavit.

I agree with the majority that judges are “ill-equipped to engage in de novo review” of the highly technical and complex matters involved in this proceeding. I further agree that “[i]f in the court’s admittedly unscientific judgment, some new evidence which was unavailable to the agency seems so significant that the agency’s original action now seems questionable, the reviewing court should remand the consent decree so that EPA’s experts can consider the new information.” (Emphasis added). To be considered for the limited purposes indicated, the proponent must prove that the additional evidence is new and the kind of evidence which was unavailable at the time of the agency’s hearings and consideration of the consent decree.

In this case, during the course of monitoring compliance with the decree, there may be opportunities to present new evidence to the EPA for reconsideration of the efficacy of the steps taken to address this waste problem. If, as determined by the majority, the Hayes affidavit were to be considered for this limited purpose, I would agree with the majority’s analysis, although its consideration is not mandated, in my view.

I further concur in the conclusion in part V that the consent decree is neither arbitrary nor capricious. In sum, I agree that EPA’s responses “demonstrate[ ] the sufficiency of EPA’s reconsideration of soil flushing as a potentially viable remedy,” and that the consent decree presents a “rational” approach.

I disagree with the conclusion reached in part VIIA that Michigan’s anti-degradation law is an ARAR under 42 U.S.C. § 9621 (d)(2)(A). To be legally enforceable and avoid a vagueness challenge, state ARARs, must be specific and definite so “that ordinary people can understand what conduct is prohibited.” Kolendar v. Lawson, 461 U.S. 352, 357 , 103 S.Ct. 1855, 1858 , 75 L.Ed.2d 903 (1983); see also Colten v. Kentucky, 407 U.S. 104 , 92 S.Ct. 1953 , 32 L.Ed.2d 584 (1972). The majority concedes that Michigan’s current implementing regu *1461 lations to its WRCA fail to provide “specific requirements” since they merely forbid “ ‘degradations’ of the ‘local background groundwater quality.’ ” Michigan’s policies with regard to soil flushing are inconsistent, and I would find these laws to be unenforceable, vague and insufficient to be classified as ARARs. See Kelley v. United States, 618 F.Supp. 1103 (W.D.Mich.1985).

I agree with the rationale and result reached in part VIIA-1 and 2 that Michigan’s laws, which are more stringent than federal standards, were properly promulgated despite my conclusion that they are not ARARs. I disagree, however, with the majority’s conclusion that Michigan’s anti-degradation law, under CERCLA or SARA, is legally applicable as an ARAR to the Rose Site or relevant and appropriate to the remedial action selected in the consent decree.

In sum, I am in agreement with the conclusion reached by the majority. My disagreement touches only a few steps or procedures in arriving at that conclusion.