Petition for Writ of Certiorari — Sun Pipe Line Co. v. Environmental Protection Agency
Supreme Court brief1988
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87-1567 [ ssnonn
ELLE D
No. MAR 21 1988
IN Tilt JOSEPH &. SPANIOL,
CLERK
SUPREME COURT OF THE UNI
October Term. 19S7
SUN PIPE LINE COMPANY.
Petitioner
t.
ENVIRONMENTAL PROTECTION AGENCY.
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
~ Kenneth Scott, Esq.
*Bruce J. Chasan, Esq.
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER
1811 Chestnut Street
Philadelphia, PA 19103
(215) 563-5600
Attorneys for Petitioner
Sun Pipe Line Company
* Counsel of Record
PACKARD PRESS LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000
QUESTIONS PRESENTED
1. Whether, on a “motion for reconsideration” under Fed-
eral Rule of Civil Procedure 59(e), the failure of the United
States District Court to allow an amendment to the complaint
pursuant to Federal Rule of Civil Procedure 15, in the absence
of prejudice to the defendant, was an abuse of discretion?
2. Whether the District Court had jurisdiction to judicially
review the action of the Environmental Protection Agency in
denying permission under 40 C.F.R. §§2.401 et seq. to Sun Pipe
Line Company to videotape a deposition of an agency employee
for use in a case in which the United States is not a party?
3. Whether, under the circumstances, the action of the
Environmental Protection Agency in denying permission under
40 C.F.R. §§2.041 et seg. to Sun Pipe Line Company to
videotape a deposition of an agency employee was invalid
because it was arbitrary, capricious, an abuse of discretion, and
otherwise not in accordance with law?
THE PARTIES
Plaintiff, petitioner herein, is Sun Pipe Line Company
(“SPL”). SPL is incorporated under the law of Pennsylvania and
has its principal office in Tulsa, Oklahoma. It owns and operates
petroleum pipelines in numerous states, and it transports both
refined petroleum products and crude oil. It is presently an
indirectly-owned subsidiary of Sun Company, Inc. through a
holding company, Sun Pipe Line Company of Delaware.
Defendant, respondent herein, is the Environmental Pro-
tection Agency, an agency of the United States government.
RULE 28.1 LISTING
SUN PIPE LINE COMPANY AND SUBSIDIARIES
AND AFFILIATES
HOLDING COMPANY
SUN PIPE LINE COMPANY OF DELAWARE
100% OWNED COMPANIES
Sun Pipe Line Company:
Eastern Area
Mid-Continent Area
Southwest Area
Mid-Continent Pipe Line Company
Sun Oil Line Company of Michigan
Sun Pipe Line Services Co.
JOINT VENTURES
Explorer Pipeline Company
Inland Corporation
Mid-Valley Pipeline Company
Maumee Section
West Texas Gulf Pipe Line Company
UNDIVIDED INTEREST
High Island Pipeline System
Jay Field
Mesa Pipe Line
PARENT COMPANY AND ADDITIONAI
Adamantech, Inc.
Alliance Enterprise Corporation
Helios Capital Corporation
Helios Service Company
Puerto Rico Sun Oil Company
Radnor Corporation
Sun Carriers, Inc.
Sun Company, Inc. (Parent Company
il
. AFFILIATES
Sun Company Information Systems, Inc.
Sun-Del Services, Inc.
Sun Distributors, Inc.
Sunedco Coal Company
Sun Exploration and Production Company
Sun Exploration and Production Company of Pennsylvania,
Inc.
Sun Gas Liquids, Inc.
Sun Gas Terminals and Storage (PA), Inc.
Sun Gas Transmission Company, Inc.
Sun Geothermal Company
Sun Marine Terminals, Inc.
Sunoco Credit Corporation
Sunoco Energy Development Co.
Sun Oil Trading Company
Sun Refining and Marketing Company
Sun Shale Oil Company
Sun Ship, Inc.
Sun Tech, Inc.
The Claymont Investment Company
White River Shale Oil Company
Yabucoa Sun Oil Company, Inc.
TABLE OF CONTENTS
QUESTIONS PRESENTED «0.2 ccc sic ca ce ccecaces
ee RI rok oo Oe C0 eek enh Ree eas woeeee.
JF og 30.3), Se paegueeaeatee s
a, EO GTR ha e n e ce ne cao nen ee ee tees
UMNO 13s cs hunt yadda bay ead keds
STATUTORY PROVISIONS INVOLVED..............
STATEMENT OF THE CASE.................0-00-.
A. Factual Background, The Underlying Litigation. .
B. Sun Pipe Line Company's Request To E.P.A. ...
C.
Proceedings In U.S. District Court ............
DD. Proceedings In The Court of Appeals ......
REASONS FOR GRANTING THE WRIT.............
IN ITS EVALUATION OF SPL’S “MOTION FOR
RECONSIDERATION,” THE FAILURE OF THE
TRIAL COURT TO ALLOW AN AMENDMENT
TO THE COMPLAINT PURSUANT TO RULE 15,
ABSENT PREJUDICE TO E.P.A.. WAS AN
Ae Ce EPS IRIEN Cocks necks ascsneeaes
THE DISTRICT COURT HAD JURISDICTION
TO JUDICIALLY REVIEW AGENCY ACTION
TAKEN PURSUANT TO AGENCY REGULA-
TIONS WHEN THE ACTION WAS ALLEGED
BY PETITIONER TO BE ARBITRARY, CAPRI-
CIOUS AND AN ABUSE OF DISCRETION ....
TABLE OF CONTENTS— Continued)
Page
Il. WHETHER THE E.P.A. ACTION WAS ARBI-
TRARY, CAPRICIOUS, AN ABUSE OF DISCRE-
TION, OR OTHERWISE NOT IN) ACCOR-
DANCE WITH LAW, WITHIN THE MEANING
OF THE APA, IS A QUESTION WHICH NEEDS
TO BE RESOLVED IN AN APPROPRIATE
HEARING AT THE DISTRICT COURT LEVEL. — 16
bee Rk Pee Pernt ty Par A ky: 1S
APPENDIX
Opinion, Appeal of Sun Pipe Line Company, 831 F.2d 22
Order Denying Petition For Rehearing (Nov. 20, 1987).. A-9
Order of Justice Byron R. White dated February 11, 1988
Extending Time To File Petition For Writ of Certio- -
rari To and Including March 21, 1988 .............. 4-10
DEANU SOc ck vcnatnvssekes asareevedae tne 4-1]
DESC. FA 6 cs 0 ins p eeacene eee A-]]
S U.S. Ga. occas etn ceanceeeiel eeeee A-1]
S 0.5.0... Fee. 62s ies nedeasar chee A-11-12
BB UGA. QR s ok hove ene ccdekes eee ee A-1]2
FEDERAL RULES OF CIVIL PROCEDURE .......... A-12
Re DIO ne cia pc Uew nena ene pee eee A-]2
ehe TE on. kev ccehesastgreee eee A-12
ett CD ois cco se kctegidheseie eee A-13
Public Information; Testimony by Employees and Produc-
tion of Documents in Civil Legal Proceedings, 40
C.F.R. Part 2, Subpart C, 50 Fed. Reg. 32386 (Aug. 9,
TABLE OF CONTENTS— Continued
Page
Sun Pipe Line Companys Requests For Admissions To
Plaintiffs (February 20, 1987) And Answers Thereto,
Hudachek v . Sun Company, Inc., et al., No. S4-01115-
11-2 (excerpts and Attachments “B™ and “C” A-2]
Letter, Butler Buchanan, IIL, Esq. to Donnell L. Nantkes,
Esq.. Environmental Protection Agency, April 3, 1987 A-29
Application For Issuance of Order Requiring the United
States Environmental Protection Agency To Produce
Dr. Thomas Spittler To Testify By Videotape Deposi-
tion, MBD #57-315 (D. Mass.), filed April 29. 19ST . A-31
Letter, Patrick A. Parenteau, Regional Counsel. Environ-
mental Protection Agency. to Butler Buchanan. UI.
Esq.. April 29. 1987 AH
Transcript of Hearing before Hon. Walter J. Skinner, U.S
District Judge, Boston, Massachusetts, April 30, 1987 A-35
Motion For Reconsideration Of Order Denving The Peti-
tion of Sun Pipe Line Company To Require The
Environmental Protection Agency To Produce Dr
Thomas Spittler For A Videotape Deposition, and
Affidavit, IBD #S7-315. filed May 6, 1987 4-39
Memorandum Of Law In Support Of Motion For Recon-
sideration, MBD #87-315, filed May 6, 1987 AH
Order Denving Motion For Reconsideration, \IBD #S87-
31S Nav S. LOST . AD
tw
‘1
TABLE OF AUTHORITIES
Cases. Page
Appeal of Sun Pipe Line Company, $31 F.2d 22 (1st Cir.
ee rear ey per em erry ye Passim
Califano v. Sanders, 430 U.S. 99 (1976) ... (apaavan ae
Chrysler Corp. cv. Brown, 441 U.S. 282 (1979) ....... 13, 14
Cipriani, et al. v. Sun Pipe Line Company, et al.. No.
§3-03557-11-2 (Bucks Co. C.C.P.).. 2.2... 0.000005. 3, 4
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402
PP ae eae pee em ee 14. 16
Concerned Residents of Buck Hill Falls v. Grant, 337 F.2d
SL I cs dade rtneueeLounas eens oae 14. 15
Conley v. Gibson, 355 U.S. 41 (1957)... 2.0... . § 11, 18
Davis Enterprises, Sun Pipe Line Company. et al. t
United States Environmental Protection Agency. No.
SPL, Ess coe cccutchucesetsccues ya
Dunlop v. Bachowski, 421 U.S. 560 (1975)............. WA
Foman v. Davis, 371 U.S. 175 (1962) ..... 7, 5,9, 10. 11, 12
Giza v. Secretary of Health, Education and Welfare.
628 F.2d 748 (Ist Cir. 1980) ................... 6.5.9
Hudachek, et al. cv. Sun Company, Inc., et al.. No.
§$4-01113-11-2 (Bucks Co. C.C.P.) .............. 3, 4.5
Kiser v. General Electric Corp., $31 F.2d 423 (3d Cir.
Rey ee eer erry oe 11, 12
Kozak vc. Struth, _. Pa. __, 331 A.2d 420 (1987) .... 5
Lerman v. Chuckleberry Publishing, Inc., 521 F.Supp. 225
fe APP errr rer rr rer yer ye ll
Local 1219, American Federation of Government Em-
ployees v. Donavan, 683 F.2d 511 (D.C. Cir.
PP istvaddakeadgguecsnasentbeseegundvuye 13. 14. 15
Morris ct. Gressette, 432 U.S. 491 (1977)... 0... .
vil
TABLE OF AU THORITIES— Continued
( ases Pave
Rennekamp cv. Blair, 376 Pa. 620, 101 A.2d 669 (1954 .
Re ynolds Vii tals ( ompany t (row ther 572 7 Supp 285
1D. Mass. 1983 6.9
Sacks v. Reynolds Securities. In 593 F.2d 1234 (Dt
Cir. 1975 1]
Sanders v. Clemco Industries, 823 F.2d 214 (Sth Cir. 1987 12
Service t. Dulles. 354 U.S. 363 (1957 13. 14
Sheehan t. Army and Air Force Exchange Service. 619
F 2d 1132 (Sth Cir. 1980). reversed on other grounds
556 U.S. 728 (1982 13. 14, 15
Sweeney vt. Keystone Provident Insurance Company 575
F.Supp. 31 (D.Mass. 1953 10
l'nited States 1 Belanger. 598 F Supp. 595 (D.Me
L9S4 l]
(United States v. Hougham, 364 U.S. 310 (1960 10
United States v. Springer, 491 F.2d 239 (9th Cir. 1974 1}
rite d Sfates ey rel Touhy Re van 440) | S 162
195] %
Wong Wing Hang v. Immigration and Naturalization
Services HO |} Id 715 (2d Cir. 1966 16
STAIt TES AND REGULATIONS
Federal Rule of Civil Procedure 15 7.9
Federal Rule of Civil Procedure lia z, S ii, 12
Federal Rule of Civil Procedure 15id 2. 1]
Federal Rule of Civil Procedure 59% - 4,9, hd
Federal Rules of Evidence 5
grat > 30] 14
TABLE OF AUTHORITIES— Continued)
STATUTES AND REGULATIONS Page
Pe asl vueee das hier eA aee ea sew es
I ny iss ce bub isiecsoseovescsns esses l4
PRED Sabacccaesecrysassnewcag tia sacs ss l4
Lf TD sh ee ere e Rawr Teer re we at
Rk eo, | erie ee ere eee 2, 15, 16
ER” | ER ore porn er neg rr ee 2
a ie ae nd ea rere ose 05s 2. 7, 13, 5
of pe EAA eer eorre ery err rr err ry ey 2
40 C.F.R. Part 2, Subpart C §§2.401-2.406 .. 2, 6, 12. 13, 14
Administrative Procedure Act................. 7. 14, 15, 16
Freedom of Information Act........0.0.0.0.0000000 0.00005. 6,17
ee a a err ey ren ore y)
ee | kA. rE Pree Tee eee ee 8.9
5s _) SP erre rTP ET Tae eee ere 2
OTHER AUTHORITIES
$.Rep. No. 752, 79th Cong., Ist Sess. (1945)... ......... l4
50 Fed. Reg. 32386 et seq. (August 9, 1985).......... 12, 13
United States Constitution, Full Faith and Credit
SNS ts Fre Pas e ER ERTS eRe TS LET CORE SA TTS 6
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1987
SUN PIPE LINE COMPANY,
Petitioner
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
Sun Pipe Line Company respectfully petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the First Circuit in this case.
OPINIONS BELOW
The opinions pertinent to this Petition are the April 30,
1987 bench ruling of the United States District Court for the
District of Massachusetts (A-35 to A-38), the May 8, 1987 Order
of the district court denying the “motion for reconsideration”
(A-52), and the October 16, 1987 Opinion of the United States
Court of Appeals for the First Circuit, 831 F.2d 22 (1st Cir.
1987) (A-1 to A-8).
JURISDICTION
fhe judgment of the Court of Appeals for the First Circuit
vas entered on October 16, 1987. A Petition For Rehearing
Before Original Panel And Rehearing In Banc was filed on
October 30, 1987 and denied on November 20, 1987 (A-9
By Order dated February 11, 1988, Justice White extended
the time to file a Petition for Writ of Certiorari to and including
March 21, 1988S (4-10
he Supre me Court has jurisdiction to review the judgment
ow pursuant to 28 U.S.C. §§1254 (1) and 2101 (c), and Sup
Ct. R. 20.4
STATUTORY PROVISIONS INVOLVED
The following pertinent statutes are set forth in the Appen-
> U.S.C. §§$701(a), 702, 706(2A), and 28 U.S.C. $1331
\-11 to A-12
the following pertinent Federal Rules of Civil Procedure
ire set forth in the Appendix: Federal Rules of Civil Procedure
Isa), Lid), and 59(e) (A-12 to A-13
The following pertinent regulations are set forth in th
Appendix: 40 C.F.R. Part 2, Subpart C, §§2.401-2.406 (A-16 to
4 -()
STATEMENT OF THE CASE
4. Factual Background, The Underlying Litigation
Sun Pipe Line Company (SPL) is the owner and operator
of an underground petroleum pipeline which runs from Marcus
Hook, PA to Newark, NJ. The pipeline was punctured by a cabl:
television contractor on November 12, 1982, in Newtown
Bucks County, PA, resulting in a net loss of approximate!
50,000 gallons of unleaded gasoline into the ground. In subs«
quent months, gasoline vapors entered the basements of
number of homes in an adjacent housing development known «:
Newtown Crossing.
On or about May 15, 1983, the case of Pier Cipriani, et a/
v. Sun Pipe Line Company, et al., No. $3-03557-11-2, was filed
in the Court of Common Pleas for Bucks County. The Cipriani
case is a class action with nine families named as _ plaintiffs
Among other things, the complaint alleges property damage and
various adverse health effects suffered by the homeowners in
Newtown Crossing. The theories of liability alleged against SPI
include strict liability and negligence.
Beginning in February 1954, numerous cases were filed by
“opt-out” plaintiffs in the Court of Common Pleas for Bucks
County, including Joseph Hudachek, et al. v. Sun Company
Inc., et al., No. 84-01113-11-2, and several others. Sun Pipe
Line Company, which is a subsidiary of Sun Company, Inc., is
also a defendant in the opt-out cases. These suits are similar
the Cipriani action in that the plaintiffs are alleging propert
damage and adverse health effects as a result of the pipelin
accident. :
In April 1983, before the homeowners suits were filed, the
U.S. Environmental Protection Agency ("E.P.A.~) was invited
by the Pennsylvania Department of Health to do air monitorin:
in numerous homes in Newtown Crossing. The monitoring aros:
out of requests by certain homeowners to the Pennsylvania
Department of Health to have an independent agency do testing
to obtain unbiased results regarding the levels of hydrocarbons 4
present in their homes. On April 6 and 7, 1983. Dr. Thomas
Spittler Ph.D.. of the U.S. E.P.A. Region I Laboratory. did ai
4
monitoring with a portable gas chromatrography machine and
Tenax tubes in six homes in Newtown Crossing, and he also
sampled the ambient air outside the homes. The homes at which
Dr. Spittler did his air sampling were owned by three families
who are claimants in the Cipriani class action case and three
opt-out families, including the Hudacheks.
The air monitoring tests done by E.P.A. in Newtown
Crossing were requested by Mr. Gary Schultz of the Pennsyl-
vania Department of Health, and the results were reported by
E.P.A. to Mr. Schultz (A-24 to A-28). E.P.A. did not do the
testing pursuant to any regulatory program it was then enforc-
ing. However, the Centers for Disease Control, the Pennsylva-
nia Department of Health, and the Bucks County Department
of Health used the E.P.A. data (and data obtained by the
industrial hygiene firm hired by SPL) to develop health criteria
regarding exposure to gasoline vapors.
On February 21, 1985, the Court of Common Pleas certi-
fied the class in the Cipriani action as to common issues of fact
on liability, but it held that each plaintiff would have to prove
damages individually. The certified class consists of 200 home-
owners.
In September and October, 1986, the liability trial was held
in the Cipriani action. SPL and four other co-defendants were
held by the jury to be causally negligent for the pipeline
accident under comparative negligence principles. !
Subsequent to the jury verdict on liability, trial preparation
began in earnest on the homeowners damage claims. Two cases
in particular, the Melso claim (class action plaintiffs), and the
Hudachek claim (opt-out plaintiffs), were designated by the trial
judge as the first two claims to be tried.
In pre-trial discovery, SPL served requests for admissions
to the Hudachek and Melso plaintiffs to admit the authenticity
1. SPL was held 18% liable. The contractor who punctured the pipeline,
Tri-State Telecommunications, Inc., was held 40% liable; the cable television
company, Davis Enterprises, was held 13% liable; the township engineer, Jan
Gouza, and his firm, Pickering, Corts and Summerson, Inc., were held 15%
liable: and the firm which drew the maps omitting the pipeline, E.A. Design,
Ltd., was held 14% liable.
and truth of the reported results obtained by E.P.A.’s Dr.
Spittler. Both the Hudachek and Melso plaintiffs refused to
admit the truth of the E.P.A. results without having an oppor-
tunity to cross-examine the chemist who did the work (Dr.
Spittler) (A-21 to A-28).
B. Sun Pipe Line Company's Request To E.P.A.
In January and again in April 1987, the Hudachek trial was
scheduled for May 11, 1987.2 On April 3, 1987, soon after
receipt of plaintiffs answers to the requests for admissions,
counsel for SPL wrote to the E.P.A. General Counsel in
Washington, D.C. to request permission to videotape a depo-
sition of Dr. Spittler (A-29). The circumstances behind the
request were briefly explained in the letter.®
The E.P.A. General Counsel's office referred SPL’s request
to the Regional Counsel's office in Boston. In the meantime, on
April 23, 1987, SPL obtained a commission from the court in
Bucks County to take an out-of-state deposition of Dr. Spittler.
Counsel for SPL desired one videotape deposition of Dr.
Spittler at which all interested plaintiffs) counsel could be
present. In this manner, counsel for SPL expected that Dr.
Spittler would need to testify only once for a period of 1 to 2
hours. On April 28, 1987, counsel for SPL issued a Notice of
Deposition to ‘Dr. Spittler and served copies of same to the
attorneys of record in the Pennsylvania cases.
2. Subsequently, on May 6, 1987, the state court postponed the trial date
to allow completion of additional discovery.
3. In order for expert witnesses in Pennsylvania courts to render opinion
testimony on the hazards of exposure to gasoline vapors, the testimony must be
based on the witness's personal knowledge, uncontradicted facts in evidence.
or an assumed state of facts reasonably shown by the record. Kozak v. Struth.
__Pa. __ , 531 A.2d 420, 422 (1987). Pennsylvania courts do not follow the
Federal Rules of Evidence on expert testimony. Kozak v. Struth, supra, 531
A.2d at 423. Ifa party does not prove the facts which go into the hypothetical
question framed to the expert witness, the opinion is based on unproved
assumptions and is therefore worthless guess and conjecture. Rennekamp
Blair, 376 Pa. 620, 101 A.2d 669, 672-3 (1954). Thus, if SPL. does not prove the
E.P.A. results, its expert witnesses will not be able to rely on the E.P.A. data
as a basis for their opinions. Kozak v. Struth, supra, 3531 A.2d at 422-3
6
There were several telephone calls in April 1987 between
counsel for SPL and the E.P.A. Regional Counsel's office
attempting to arrange the deposition, but no agency decision
was made until after SPL’s petition was filed in the U.S. District
Court in Boston on April 29, 1987 (A-31 to A-33). The Regional
Counsel, relying on E.P.A. regulations, 40 C.F.R. Part 2,
Subpart C, §§2.401 et seq., sent a letter that date refusing SPL’s
request (A-34).
C. Proceedings In U.S. District Court
E.P.A. prepared a brief opposing SPL's petition. A hearing
was held before Hon. Walter Jay Skinner, U.S.D.J., on April
30, 1987. The court, relying on Giza v. Secretary of Health,
Education and Welfare, 628 F.2d 7458 (1st Cir. 1980), denied
SPL's petition but indicated it might entertain a “motion for
reconsideration’ if authority was provided (A-38). Giza had held
that the federal courts could not compel testimony by F.D.A.
employees pursuant to a state court subpoena on the basis of the
Freedom of Information Act, mandamus jurisdiction, comity, or
the Full Faith and Credit Clause of the Constitution. On May 6,
1987, SPL filed a “motion for reconsideration’ together with an
affidavit by counsel, a memorandum of law, and several exhibits
(A-39 to A-51). SPL alleged that Giza, supra, is distinguishable,
and that E.P.A.’s refusal to permit Dr. Spittler to testify by
videotape deposition was arbitrary and capricious agency action
subject to judicial review (A-40). SPL cited dictum in Reynolds
Metals Company vt. Crowther, 572 F.Supp. 288, 291 (D. Mass.
1983) (The narrow basis of this court’s decision [refusing to
enforce a subpoena for testimony by two O.S.H.A. employees|
clearly does not preclude appropriate judicial supervision of a
department's exercise of discretion to prohibit testimony by its
emplovees. ) (A-40, A-45).
On May $8, 1987, the court entered the following order on
SPL’s “motion for reconsideration: “DENIED. The Reynolds
Metals case cited by petitioner confirms the prior denial of the
petition. 5/8/87 W. J. Skinner, USDJ.” (A-52). All proceedings
were concluded in less than 10 days.
D. Proceedings In The Court of Appeals
In the appeal to the First Circuit, the parties briefed and
argued to questions: (1) Was there jurisdiction in the district
court to judicially review action of the E.P.A. taken under
agency regulations? (2) If so, was the agency action arbitrary,
capricious or an abuse of discretion within the meaning of the
Administrative Procedure Act (APA)? The E.P.A.'s brief framed
its “Issues Presented” in substantially the same terms stated by
SPL in its “Questions Presented.”
On October 16, 1987, the court of appeals rendered its
judgment and opinion holding that Fed. R. Civ. P. 59(e) was the
appropriate standard for judging SPL’s “motion for reconsidera-
tion, and that the trial judge did not abuse his discretion in
denying the motion. Appeal of Sun Pipe Line Company, 531
F.2d 22, 24-5 (Ist Cir. 1987) (A-5). The court held that it need
not resolve the question of whether the district court had
jurisdiction to review the agency action complained of. Id. at 24
(A-4).
The E.P.A. at no time had argued that SPL’s appeal should
be denied for failure to show an abuse of discretion on the part
of the trial judge in denying SPL’s “motion for reconsideration.
E.P.A. was content to argue that it should win the case because
the agency action complained of was committed to agency
discretion by law, and therefore there was no jurisdiction under
28 U.S.C. §1331 and the APA. Moreover, E.P.A. never argued
that it was in any way prejudiced by the new claim asserted by
SPL in the “motion for reconsideration.”
SPL’s petition for rehearing contended that the “motion for
reconsideration was in substance a motion to vacate the judg-
ment and amend the complaint which should have been allowed
pursuant to Fed. R. Civ. P. 15. Foman v. Davis, 371 U.S. 175,
1$2 (1962). The precise question presented was this: “Whether,
on a motion for reconsideration’ under Rule 59(e), the failure of
the trial court to allow an amendment to the complaint pursuant
to Rule 15, in the absence of prejudice to the defendant, was an
abuse of discretion?” The petition for rehearing was denied
without explanation on November 20, 1987 (A-9).
REASONS FOR GRANTING THE WRIT
Summary. Normally federal agencies have authority to
restrict testimony by their employees when they are subpoe-
naed to testify in private litigation. United States ex rel. Touhy
vt. Regan, 340 U.S. 462 (1951); Giza v. Secretary of Health,
Education & Welfare, 628 F.2d 748 (Ist Cir. 1980). However,
when a federal agency has regulations establishing criteria which
govern when it will allow testimony by its emplovees in private
litigation, there is no reason why agency action in applying those
regulations should be exempt from judicial review pursuant to
28 U.S.C. §1331 and the APA. This case presents a novel
application of settled principles of law concerning judicial review
and it has the potential to limit the doctrine of Touhy v. Regan,
supra. It is an important question of federal law which should be
settled by this Court. Sup. Ct. R. 17. 1(c).
Whether or not the E.P.A. action in this case was arbitrary,
capricious or an abuse of discretion within the meaning of the
APA, 5 U.S.C. $706(2)(A), is certainly important to SPL, but we
recognize that the decision on this issue should most likely be
made at the district court level following remand, assuming this
Court agrees that SPL’s “motion for reconsideration” stated a
valid claim for relief.
The threshold issue is whether the district court and court
of appeals properly applied the Federal Rules of Civil Procedure
in denving SPL’s “motion for reconsideration.” It is well-settled
that the Federal Rules of Civil Procedure should be construed so
as to do substantial justice, Conley v. Gibson, 355 U.S. 41, 48
(1957), and cases should be decided on their merits, not
technicalities. Whatever its label, SPL’s “motion for reconside-
ration” was in reality a motion to vacate the judgment and
amend the complaint, and it should have been allowed pursuant
to F. R. Civ. P. 15(a). Foman v. Davis, supra. It was an abuse
of discretion not to allow SPL to amend its complaint. Id. The
decisions of the district court and the court of appeals were such
departures from the usual course of judicial proceedings so as to
call tor the exercise of this Court's power of supervision, and said
Y
decisions were also in direct conflict with applicable decisions of
this Court. Sup. Ct. R. 17.1(a), (ce).
I. IN ITS EVALUATION OF SPL’S “MOTION FOR RE-
CONSIDERATION,” THE FAILURE OF THE TRIAL
COURT TO ALLOW AN AMENDMENT TO THE COM-
PLAINT PURSUANT TO RULE 15, ABSENT PREJU-
DICE TO E.P.A., WAS AN ABUSE OF DISCRETION.
At the April 30, 1987 hearing on SPL’s original petition, the
district court (Judge Skinner) citing Giza, supra, made clear his
view that SPL had produced no authority to compel the
deposition of Dr. Spittler (A-37). The colloquy between the
court and SPL’s counsel (Mr. Glovsky) shows that counsel made
an oral motion for leave to file an amended pleading which
would include authority for the requested relief. The court
appeared to grant such leave, though it suggested filing a
“motion for reconsideration. (A-38).
On May 6, 1987, SPL filed its “motion for reconsideration”
(A-39). The motion complained that “the action of the E.P.A.
Regional Counsel in refusing to permit the videotape deposition
[per the letter dated April 29, 1987]” was arbitrary and capri-
cious agency action subject to judicial review (A-40). The court
dismissed SPL’s “motion for reconsideration” within 48 hours
with a terse opinion: “DENIED. The Reynolds Metals case cited
by petitioner confirms the prior denial of the petition.” (A-52).
Drawing reasonable inferences, it appears that the trial judge
did not believe he was being turnished with any authority new
and distinguishable from Giza, supra. It is not clear how he
evaluated SPL’s motion under Rule 59(e), whether he recog-
nized that a new claim was being made, or whether he evaluated
the motion pursuant to Rule 15.
But if the court had construed the “motion for reconside-
ration” as a motion to vacate the judginent in order to allow an
amended complaint, then it should have been allowed. Foman
t. Davis, 371 U.S. 178, 182 (1962). In the case cited, involving
a will contest between a decedent's daughter and his second
wife, the district court dismissed plaintiff's complaint to enforce
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to cure
SPI Id. Nor were there any rep ated failure! s
cle hcvencies by amendments pre viously allowed ld
The First Circuit sought to justifv its holding by citing
SPL's “lassitude” in delaving its request to E.P.A. for Dh
We dispute this
characterization. but assuming arguendo that SPL could have
Spittler S deposition S31 B.2d at 26 (A-7
been more diligent this “delav’ was not of the tvpe which
results in untai pre juclice to the adverse party in litigation
E.P.A.). See Sanders v. Clemco Industries, 823 F.2d 214, 216-7
Sth Cir. 1987) (district court abused its discretion in not
allowing amendment to complaint pursuant to Rule 15(a) in
absence of showing of untair prejudice to defendant due to
delay); Kiser v. General Electric Corp., supra at 428 (same). In
this case, E.P.A. could not show prejudice to itself if. an
unendment had been allowed to SPL s original application
Indeed, E.P.A. never invoked any procedural or technical
objection, but instew sought to have this controversy resolved
on its merits
I. THE DISTRICT COURT HAD JURISDICTION TO JU-
DICIALLY REVIEW AGENCY ACTION TAKEN PUR-
SUANT TO AGENCY REGULATIONS WHEN THE AC-
TION WAS ALLEGED BY PETITIONER TO BE
ARBITRARY, CAPRICIOUS AND AN ABUSE OF DIS-
CRETION.,
The E.P.A. has regulations governing the extent to which
semplovees may testifs in private lawsuits. 40 C.F. R. §§2.40]
er. Se q SO) be dl Ke Vv 32356 August 9 iYSS \-14 to A-20
These regulations are clearly not a blanket proscription of
\
s
K..P.A emplovee testimony in privat lawsuits. As the avencys
said nn the pre amble to the re vulations
We recognize that there are situations were EPA should
cooperate with Federal, State or local authorities as part ol
the Agency s joint re sponsibility for de veloping and enfore
ing environmental standards and other policies. This regu
lation does not pre lude such activities. and numerous EPA
thie ] ils ire’ ¢ Mipowe ré dl to authorize Ste rr te Stimony
50 Fed. Reg. 32386. Further, in explaining the © evils” which the
agency expected would be avoided by the regulations, the
summary to the preamble stated as follows
The intended effect of this regulation is to ensure that EPA
employees time is spent on EPA business and to avoid the
appearance that EPA is taking sides in private litigation
ld., 50 Fed. Reg. 32386. See 40 C.F.R. §2.401(c), 50 Fed. Reg
at 32387, incorporating these and other criteria into the regula
tion (A-1S
E.P.A. must clearly exercise discretion in deciding when it
will permit its emplovees to testify in private lawsuits, but the
agency s discretion in doing so is limited by the criteria set forth
in the above-referenced regulations. It is well-settled that each
federal agency is bound by its own regulations. Service
Dulles, 354 U.S. 363, 372, 388 (1957) (discharge of foreign
service officer held invalid due to failure of State Department to
abide by agenev regulations). As this Court said in Service
Dulles
While it is of course true that under the MeCarran Rideo
the Secretary was not obligated to impose upon himself
these more rigorous substantive and procedural standards
neither was he prohibited from doing so, as we have already
held, and having done so he could not, so long as the
Regulations remained unchanged, proceed without regard
to them
Id., 354 U.S. at 388
Federal judicial review of agency actions in applying federal
law is available under 28 U.S.C. $1331. Califano v. Sanders, 430
U.S. 99, 104-107 (1976); Chrysler Corp. v. Brown, 441 U.S
282, 317 (1979): Sheehan vt. Army and Air Force Exchange
Service, 619 F.2d 1132, 1139 (Sth Cir. 1980), reversed on othe
grounds, 456 U.S. 728 (1982). Jurisdiction under $1331 is also
available for judicial review of agency action taken pursuant to
agency regulations. Local 1219, American Federation of Gort
ernment Employees tv. Donovan, 683 F.2d 511, 515-516 (D.C
I4
Cir. 1982); Sheehan v. Army and Air Force Exchange Service,
619 F.2d at 1139.
Of course, the availability of judicial review is subject to two
exceptions. i.e. where “statutes preclude judicial review,” and
where “agency action is committed to agency discretion by law.”
5 U.S.C. §701(a) (1), (2); Chrysler Corp. v. Brown, supra at 317.
The latter exception applies only “where statutes are drawn in
such broad terms that in a given case there is no law to apply.”
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410
(1971), quoting $.Rep. No. 752, 79th Cong., Ist Sess., 26 (1945).
Federal courts should not interpret a statute or regulation to
confer unreviewable power to an administrative agency in the
absence of a persuasive reason to believe that such was the
purpose of Congress. Morris v. Gressette, 432 U.S. 491, 500-501
(1977); Dunlop v. Bachowski, 421 U.S. 560, 564 and n.5 (1975).
In the present case, there is no statute precluding judicial ~
review. Also, the E.P.A. regulations are not drawn so broadly
that it may be held as a matter of law that “agency action is
committed to agency discretion by law.” Definite standards for
considering requests for testimony by agency employees are set
forth in the regulations themselves, e.g. 40 C.F.R. §2.401(c),
and in the preamble to the regulations. Since there is law to
apply, and since there is no evidence that Congress intended
E.P.A.’s exercise of discretion to be unreviewable, judicial
review should clearly be available.
This court must decide whether the E.P.A. regulations
themselves set forth sufficient standards which limit the agency s
discretion, thereby affording judicial review under the APA.+ It
is submitted that the agency regulations clearly provide “judi-
cially discernible limits.” and judicial review is therefore avail-
able. Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d
4. To the extent the First Circuit relied on the broad discretion conferred
in the “housekeeping statute,” 5 U.S.C. $301, see $31 F.2d at 25 (A-5), such
reliance was misplaced. The agency action complained of in this case was
ostensibly taken pursuant to agency regulations, not the “housekeeping
statute.” Accordingly, this court must look to the agency regulations. Service
vr Dulles, supra
15
29, 35-36 (3d Cir. 1976); Local 1219, American Federation of
Government Employees v. Donovan, supra at 515-6.
In sum, the district court had jurisdiction under 28 U.S.C.
§1331 and the APA. As was said in Sheehan v. Army and Air
Force Exchange Service, supra, there is subject matter jurisdic-
tion to decide this controversy, “and authority to award nonmon-
etary compensation flows from the confluence of 28 U.S.C.
§$1331(a) and 5 U.S.C. §702.” Id., 619 F.2d at 1141. The two
statutes together provide a waiver of sovereign immunity “for
actions against federal government agencies, seeking nonmone-
tary relief, if the agency conduct is otherwise subject to judicial
review.” Id., 619 F.2d at 1139.
[We add parenthetically that almost identical litigation is
pending in the U.S. District Court for the Eastern District of
Peunsylvania, Davis Enterprises, Sun Pipe Line Company, et al.
vu. U.S. Environmental Protection Agency, No. 87-5315. Plain-
tiffs in the Davis Enterprises case seek a videotape deposition of
a second E.P.A. employee who works in Philadelphia and who
was also involved in the air monitoring at the Newtown Crossing
homes, including dates Dr. Spittler was not present. The case
has been submitted to the district court in Philadelphia on
cross-motions for summary judgment (filed January 15, 1985)
and a stipulation of facts. The parties expect the district court to
decide the jurisdictional claim, i.e., whether judicial review is
available, and, if so, whether the E.P.A.’s conduct in refusing
permission for a deposition of an agency employee was in
violation of the APA, 5 U.S.C. §706(2)(A). When a decision is
rendered, it will be furnished to this Court. |
lb
Il. WHETHER THE E.P.A. ACTION WAS ARBITRARY,
: CAPRICIOUS, AN ABUSE OF DISCRETION, OR OTH
ERWISE NOT IN) ACCORDANCE WITH LAW,
WITHIN THE MEANING OF THE APA, IS A QUES
TION WHICH NEEDS TO BE RESOLVED IN AN
APPROPRIATE HEARING AT THE DISTRICT
COURT LEVEL.
ludicial review under 5 U.S¢ STOGI2NA) to determin
whether agenev action was “arbitrary” or “capricious requires
the trial court to “consider whether the decision was based on a
consideration of the relevant factors and whether there has been
iclear error of judgment.” Citizens to Preserve Overton Park 1
Volpe 1Ol U.S. 402, 416 (1971 The standard of review for
abuse of discretion” is similar but not identical. E.g.. an abuse
t discretion occurs when an wWeneys departs from established
policies. Wong Wing Hang v. Immigration & Naturalization
Service, 360 F.2d 715, 719 (2d Cir. 1966), cited in Citizens to
Preserve Overton Park v. Volpe, supra at 416
In its “motion tor reconsideration, SPL alleged that the
KE. P.As refusal to permit a videotape deposition of Dr. Spittler
was arbitrary, capricious and an abuse of discretion because his
testimony would further the public interest and could not be
misconstrued as taking sides in private litigation (A-40). SPI
ileged that E.P.A. misapplied the criteria in its regulations. Id
\ memorandum of law expanded upon these allegations \-44 to
\-51). In particular, SPL pointed out that the air monitoring
results obtained by Dr. Spittler were not available from any
ther witness, that the evidence was relevant, and that D1
Spittler would be testifving only as to what compounds were
tound and in what concentrations, not whether the levels were
sale or TON
The trial courts terse denial of the “motion tor reconside
tion gave no clue as to whether the court engaged in any
tnalvsis pursuant to the APA, 5 U.S-¢ STO6(2 A). On the
ntrarv, the inference must be that the court did no such thing
ne courts ruling implied that the court did not believe it Was
|
) , ) }
cing presented with any new authority for the reque sted reliet
17
The First Circuit engaged in an analysis of SPL’s new claim
for the liwited purpose of evaluating whether the district court
abused its discretion under Rule 59(e), pertaining to motions for
reconsideration. 831 F.2d at 25 (A-6). The court of appeals
thereby supplied a rationale for sustaining the district court's
|
denial of the “motion for reconsideration’ when there is no
evidence that the district court itself had such a rationale.
In particular, the court of appeals chastised SPL for attach-
ing certain addenda to its appeliate brief. 831 F.2d at 25 (A-6).
This referred to the fact that after the district court had denied
the “motion for reconsideration,” SPI> made a Freedom Of
Information Act request to E.P.A. for all documents evidencing
decisions by the agency since August 1985 wherein the agency
allowed testimony by its employees in litigation in which the
United States was not a party. The documents furnished by
PA) showed numerous occasions where employee testimony
was permitted in private litigation because it was relevant and
despite no discernible agency interest. In bringing these in-
stances to the attention of the First Circuit, SPL’s appellate brief
stated at p.23, n. 16:
We recognize that these materials were not before the
District Judge in this case, but we do not expect E.P.A. to
complain about citations to its own decisions and prece-
dents which are matters of public record. However, if this
Court deems it improper to consider these materials on
appeal, it would still be appropriate to remand this case to
the trial court for a hearing at which Addenda “B™ through
BB could be introduced into evidence.
E.P.A., in its brief to the First Circuit, did not object to the
precedents on grounds that they were not before the district
court. Instead, the agency sought to distinguish several of the
cases and it argued that other decisions should not be applied as
precedents.
The First Circuit's chastisement of SPL on this matter
underscores the fact that the court fastened onto perceived
procedural deficiencies and did everything it could to avoid
1S
deciding the case on the merits. In doing so, the court subverted
the purposes of the Federal Rules of Civil Procedure.
SPL's allegations in the “motion for reconsideration” called
for a hearing of some kind. It is well-settled that a claim should
not be dismissed unless the plaintiff can prove no set of facts
which would entitle it to relief. Conley v. Gibson, 355 U.S. 41,
45-6 (1957).
CONCLUSION
For the foregoing reasons, the petition for a writ of certio-
rari should be granted.
Respectfully submitted,
Kenneth Scott, Esq.
Bruce J]. Chasan, Esq.
WILSON, ELSER, MOSKOWITZ,
I; DELMAN & DICKER
1811 Chestnut Street
Philadelphia, PA 19103
215) 563-5600
Attorneys for Petitioner
Sun Pipe Line Company
March 21, 1988
APPENDIX
United States Court of Appeals
For the First Circuit
No. 87-1529
APPLICATION FOR ISSUANCE OF ORDER REQUIRING
THE UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY TO PRODUCE DR. THOMAS SPITTLER
TO TESTIFY BY VIDEOTAPE DEPOSITION
SUN PIPE LINE COMPANY,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
(Hon. Walter Jay Skinner, U.S. District Judge!
Before
Campbell, Chief Judge,
Garth,* Senior Circuit Judge,
and Selya, Circuit Judge.
Bruce ]. Chasan with whom Kenneth Scott, Wilson, Elser,
Moskowitz, Edelman & Dicker, Richard D. Glovsky and Steven
T. Sager were on brief for appellant.
- Charles J. Sheehan, Department of Justice, Land and
Natural Resources Division, with whom Martin W. Matzen,
Department of Justice, Land and Natural Resources Division,
Thomas E.. Hookano, Acting Assistant Attorney General, Robert
S. Mueller, United States Attorney, and Francis S. Blake,
General Counsel, Environmental Protection Agency, were on
brief for appellee Environmental Protection Agency.
* Of the Third Circuit, sitting bv designation
\-]
October 16, 1987
SELYA, Circuit Judge. This chameleon of a case comes
before us in a considerably different posture than it originally
assumed in the district court. Thus, we recount the factual
predicate and evolution of the litigation with exacting care
preliminary to our explanation of why we affirm the district
court.
In November 1982, a gasoline pipeline near Newtown,
Pennsylvania was accidentally punctured and a large quantity of
fuel — perhaps as much as 100,000 gallons — escaped. Under-
ground seepage and the spread of noxious fumes followed. In
April 1983, a state agency, the Pennsylvania Department of
Health, asked a federal official, Dr. Thomas Spittler,! to conduct
air monitoring in the vicinity of the ruptured pipeline. He did so
and reported the results to state health officials.
The next month, the oil leak spilled over into the local
courts. Homeowners filed a class action suit against Sun Pipe
Line Co. (Sun), appellant before us, claiming property damage
and various adverse health effects. Several other related civil
cases were subsequently filed. The state court eventually certi-
fied the class, bifurcated the class action suit, and tried the
liability phase. A jury found Sun negligent. The court then
designated representative plaintiffs and scheduled trial of their
damage claims. In discovery which Sun initiated only after the
liability verdict was in, it sought an admission of the truth and
authenticity of Dr. Spittlers test results. But, the claimants
refused.
1. Dr. Spittler was then, and apparently still is, Chief, Technical Support
Branch. Environmental Services Division, Region I Laboratory of the federal
Environmental Protection Agency (EPA). Region I is |. adquartered in
Massachusetts, thus explaining the appellant's choice of venue
A-3
Little daunted, Sun then requested the EPA to allow Dr.
Spittler to star in a videotaped deposition. The Pennsylvania
court authorized the taking of the deposition, but never issued a
subpoena or otherwise commanded the witness's appearance.
Nevertheless, the appellant noticed the deposition without any
means of assuring the witness's attendance and sued in the
United States District Court for the District of Massachusetts fo:
an order compelling the EPA to produce Dr. Spittler.2 In the
meantime, the agency spurned Sun's request, declining to
deliver the witness.
After hearing, the district judge rained on Sun's parade. He
denied the application in an ore tenus bench decision, essen-
tially on the ground that the district court lacked authority to
compel a federal emplovee like Spittler, in his official capacity,
to respond to a state court subpoena.’ Within a week, Sun
abandoned its original theory of the case. It moved for recon-
sideration, focusing not on the production of Dr. Spittler’s body,
but on the propriety of EPA’s administrative refusal to allow the
deposition. In this motion, Sun argued for the first time that the
agency action should be set aside as arbitrary and capricious.
The district court abjured reconsideration and this appeal
ensued.
Appellant's current theory of the case is grounded upon
twin premises: (1) that EPA’s decision not to permit Dr. Spittler
to testify is subject to judicial oversight; and (2) that such
scrutiny, if undertaken, will demonstrate the irrationality of the
agency s action. The first of these premises implicates the
coverage of the judicial review provisions of the Administrative
2. The sole relief praved for in the complaint was “an order requiring the
Environmental Protection Agency to produce Dr. Thomas Spittler for a
videotaped deposition.” The complaint was never amended
3. The district court, in so ruling, relied principally upon our decision in
Giza v. Seeretary of HEW. 628 F.2d 748, 751-52 (Ist Cir. 1980). Given the
gravamen of the appellant's case as it then stood, Giza was clearly controlling.
See generally United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951
~ f wi Phy al ; ; have hese nittecd ¢
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eratviol moto ( rye iM) nd tie . 1h | play ‘ ' ‘
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caistrict wirt has substantia iscret i¢ Ming whether t
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strike up the band again in order to a sing party t
:
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irvue ew materia Tra ew th ! See fl ji ‘ In
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lrans ner fi N ‘ ilo Dp OT i 2-1) } ist (
Sent. 3. 1987): Willens v. University of Massachusetts. 370 F.2d
, , — - ‘
103. 406 (ist Ci 1G7s Pavar leer n Airling ly . 3-4
— - 7
} ad Y9O0 19 My cist Cu IQ, 6 Consequent . , '
" ;
‘Vert rl tive trial ¢ rt i¢ ' : | tte ( tive
+ ;
18) 8 " ’ il persuacdt ~« fF if ’ ¢*t ; t . ; -} ;
;
" : miest ab P i cliscret A ng a UG \\ i ; :
; bys take sf fies nadie t geri + +) P ?| P
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eel reviol ir t ii} \ | t Aa
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; ; this ’ ’ Peer ' » | i »{ is
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’ . :
. sia} iy 4 ) Ny % . ; ; ‘ ; 4 wet
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7 ray) h broad terms that in a
‘ ; there ' » f ippl (Citizens to Preserws
()y fon Part \ iy Ol US 12 110 (195) quoting ‘
at \ 7 ith, ¢ t Ss ut 1945 then judicial
‘ t In that ent. the district court had no
{ { ( Ben berett f jurisdiction thie court Was
| | t the re pli i 1 res msideration
e 7 i¢ t thre WeVE! pre sents no rosirer a
t tor the pps mt. Sul bedrock position 1s that. by
; , t ‘ xy the extent to which iVer
‘ testi I ite litigation sce 40 C.F.R. 88
r 4 LO] et j | | \ | i trained agen discretion iW such i
i\ sf iké LeTCISS 1 it dicially review ible It we were
' rT | vendo that this were so it would not stem the ticle
After the ippe 1] anit requ st tor [Dy Spittl rs testimony did
t tO! { » thre sf evguiation the complaint which Sun filed
this acti nta charge ot irbitrariness and the
{ { side! though it contained such a charg
Hered little to substantiate it. In point of fact, th
‘ i é which Sun relies in its effort to establish an
; cretion omprise son two dozen vd nda which if
ittached + its ippellate brief material which
esented to the district court and which constitutes
‘ " i the record o1 ippr il. We cannot ind will
lf elats ! Her Set nited State
s ky F.2d 449, 457 (Ist Cir. 1983 evidentiar
| ented | the district court are i thy
tt t tj t}
' it ‘ }7*
{ , K) ; '
greenest of counsel should know, not properly before [an
appellate court} ). So, even if there is some possible argument to
be made for judicial oversight of EPA’s alleged failure to abide
by its own regulations governing the role of its personnel in
private litigation — a matter as to which we initimate no opinion
there is no principled way in which the district court, in the
circumstances of this case, can be said to have abused its
discretion. Given what had transpired, the court was comfort
ably within its rights in refusing to take vet another look when
the appellant belatedly shifted gears
IV
We are aware that Sun citing the press of the state court
litigation would have us sweep proe edural niceties under the
rug and reach the merits of its protean claim. But, jettisoning
established rules to suit the fancy of individual litigants is not a
step to be taken lightly under any circumstances. la this
situation, it is not a step to be taken at all. Our canvass of the
record indicates that anv exigency which now obtains is largely
of Sun's own invention
We note, first, that no request for authentication of the test
results under 40 C.F.R. § 2.406 has ever been tendered. Nor
has Sun attempted to engage Dr. Spittler as a privately-retained
expert. See 40 C.F.R. §§ 2.401(b)\(3), (c). Moreover, the EPA
official conducted his moniting in April 1953, and Sun was aware
of the testing early on. The homeowners litigation was insti
tuted in May 1983. The record reflects that Sun's attorneys were
in direct contact with D1 Spittler no later than September |]
1984 and obtained what the scientist called the “relevant parts
of his file no later than November 2, 1954. Nonetheless, Sun
chose to wait until February 1957 before requesting the state
plaintiffs to admit the authenticity and accuracy of the witness s
report, and until April 1987 to ask the EPA to make him
available. Even after the adverse verdict had been returned in
the liabilits phase of the class action, Sun lingered in the clouds
motionless for soTne four months Having indulged i) such
lassitude, the appellant can scarcely be heard to complain that
A-8
established procedure should be discarded in order that it might
extricate itself from a self-constructed box. If Sun has been hoist
at all, it has been hoist with its own petard.
\
We need go no further. There are known hazards involved
in changing horses in the middle of the stream. Sun’s fall from
the saddle and the consequent dousing of its late-mounted
aspirations mirror those entirely predictable risks. We conclude
that the district court, in denying the appellant's motion for
reconsideration, did not misuse its discretion in any respect.
Affirmed.
A-Y
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 87-1529
APPLICATION FOR ISSUANCE OF ORDER REQUIRING,
THE UNITED STATES ENVIRONMENTAL PROTECTION,
AGENCY TO PRODUCE DR. THOMAS SPITTLER TO,
TESTIFY BY VIDEOTAPE DEPOSITION,
SUN PIPE LINE COMPANY,
Appellant.
Betore
CAMPBELL, Chief Judge,
GARTH, *Senior Circuit Judge,
COFFIN, BOWNES, BREYER, TORRUELLA and SELYA,
Circuit Judges.
ORDER OF COURT
Entered: November 20, 1987
The panel of judges that rendered the decision in this case,
having voted to deny that the petition for rehearing and the
suggestion for the holding of a rehearing en banc, having been
carefully considered by the judges of the Court in regular active
service and a majority of said judges not having voted to order
that the appeal be heard or reheard by the Court en banc,
It is ordered that the petition for rehearing and the
suggestion for rehearing en banc be deined.
By the Court:
Francis P. Scigliano
Clerk.
*OF THE THIRD CIRCUIT, SITTING, BY DESIGNATION.
icc: Messrs. Chasen and Sheehan}
4-10
Supreme Court of the United States
No. A-605
SUN PIPE LINE COMPANY
Applic ani
ENVIRONMENTAL PROTECTION AGENCY
ORDER EXTENDING TIME TO FILE PETITION FOR
WRIT OF CERTIORARI
UPON CONSIDERATION of the
]
Mw applicant
ippli ition of cousel for
+]
Ir IS ORDERI 1) that the time for filing
of certiorari uw th ibove entitled cause bye
™
Te
ipetition forawrit
ma the Sani j
oxte ricle df ta ind Til luding Nlare iT 21 1YSS
Byron RB White
Associate lustics ol thy Supreme
(ourt sf the | nited States
Dated this Lith dav of Februai IYSS
STATUTES
5 U.S.C. § 701. Application; definitions
a) This chapter [5 USCS §§ 701 et seq.] applies, according
to the provisions thereof, except to the extent that
|) statutes preclude judicial review; or
2) agency action is committed to agency discretion by
law
5 U.S.C. § 702. Right of review
\ person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
therof. An action in a court of the United States seeking relief
other than money damages and stating a claim that an agency or
an officer or employee thereof acted or failed to act in an official
capacity or under color of legal authority shall not be dismissed
nor relief therein be denied on the ground that it is against the
United States or that the United States is an indispensable
party. The United States may be named as a defendant in any
such action, and a judgment or decree may be entered against
the United States: Provided, That any mandatory or injunctive
decree shall specify the Federal officer or officers (by name or by
title), and their successors in office, personally responsible for
compliance. Nothing herein (1) affects other limitations on
judicial review or the power or duty of the court to dismiss any
action or deny relief on any other appropriate legal or equitable
ground: or (2) confers authority to grant relief if any other statute
that grants consent to suit expressly or impliedly forbids the
relief which is sought.
5 U.S.C. § 706. Scope of review
To the extent necessary to decision and when presented,
the reviewing court shall decide all relevant questions of law,
interpret consitutional and statutory provisions, and determine
the meaning or applicablity of the terms of an agency action. The
reviewmed court shall—
(2) hold unlawful and set aside agency action, findings
and conclusions found to be
(A) arbitrary, capricious, an abuse of discretion, o1
otherwise not in accordance with law,
28 U.S.C. § 1331. Federal question
Phe district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
United States
FEDERAL RULES OF CIVIL PROCEDURE
Rule 15. Amended and Supplemental Pleadings
(a) Amendments. A party may amend his pleading once as
a matter of course at any time before a responsive pleading is
served or, if the pleading is one to which no responsive pleading
is permitted and the action has not been placed upon the trial
calendar, he may so amend it at any time within 20 days after it
is served, Otherwise a party may amend his pleading only by
leave of court or by written consent of the adverse party; and
leave shall be freely given when justice so requires. A party shall
plead in response to an amended pleading within the time
remaining for response to the original pleading or within 10 days
after service of the amended pleading, whichever period may be
the longer, unless the court otherwise orders.
(d) Supplemental Pleadings. Upon motion of a party the
court may, upon reasonable notice and upon such terms as are
just, permit him to serve a supplemental pleading setting forth
transactions or occurrences or events which have happened
since the date of the pleading sought to be supplemented.
Permission may be granted even though the original pleading is
defective in its statement of a claim for relief or defense. If the
court deems it advisable that the adverse party plead to the
supplemental pleading, it shall so order, specifving the time
therefor.
A-13
Rule 59. New Trials; Amendment of Judgments
(e) Motion to Alter or Amend a Judgment. A motion to alter
or amend the judgment shall be served not later than 10 davs
after entry of the judgment
\-14
32386 Federal Register / Vol. 50, No. 154 / Friday, August 9,
1985 / Rules and Regulations
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 2
[FRL-2560-3]|
Public Information; Testimony by
Employees and Production of
Documents in Civil Legal Proceedings
AGENCY: Environmental Protection Agency.
ACTION: Final rule
SUMMARY: This rule revises 40 CFR Part 2, Public
Information, to add a new Subpart C, Testimony by Emplovees
and Production of Documents in Civil Legal Proceedings Where
the United States is not a Party. It generally provides that EPA
employees may not officially appear as witnesses or produce
documents in Federal, State or local proceedings, either volun-
tarily or in response to subpoenas, without the consent of the
General Counsel or his designee. The intended effect of this
regulation is to ensure that EPA employees time is spent on
EPA business and to avoid the appearance that EPA is taking
sides in private litigation. Accordingly, employees may not
appear as witnesses in their official capacities unless the appear-
ance is approved as being clearly in the interests of EPA. This
regulation does not apply to Congressional testimony.
EFFECTIVE DATE: This regulation is effective August 9,
1985
FOR FURTHER INFORMATION CONTACT: Donnell
LL. Nantkes, (202) 382-4550.
ADDRESS: Office of General Counsel (LE-132G), Envi-
ronmental Protection Agency, 401 M Street SW, Washington,
D.C. 20460.
SUPPLEMENTARY INFORMATION: EPA employees
are frequently requested or subpoenaed to provide testimony or
produce documents in litigation to which the United States is
not a party. EPA employees are presently required to respond
A-15
to valid subpoenas, thereby preventing them from performing
their duties and creating the appearance that the Agency is
taking sides in private litigation. This regulation is intended to
address this problem by prohibiting both voluntary appearances
and compliance with subpoenas except where clearly in the
interests of the Agency.
Subpoenas to testify concerning information which employ-
ees have acquired in the course of performing official duties, or
to produce documents, are essentially legal actions against the
United States as to which there has been no Congressional
waiver of sovereign immunity. The courts have recognized the
authority of Federal agencies to limit compliance with such
subpoenas. See United States ex rel. Touhy v. Ragen, 340 U.S.
482 (1951). Moreover, subpoenas by State courts or legislative
committees which attempt to assert jurisdiction over Federal
agencies are inconsistent with the supremacy clause of the U.S.
Constitution, and a Federal regulation prohibiting compliance
with such subpoenas reinforces this principle. See McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 318 (1819); U.S. v. MeLeod, 385
F.2d 734 (5th Cir. 1987); Giza v. Secretary of HEW, 628 F.2d
748 (Ist Cir., 1980); Municipal Court v. Civiletti, 172 Cal. Rptr.
$3 at 86, 116 Cal. App., 3d 105 (1981).
Accordingly, this regulation prohibits EPA emplovees from
complying with requests for production of documents or sub-
poenas from Federal and State courts and State or local legisla-
tive committees or administrative agencies without the approval
of the General Counsel or his designee. (The Inspector General
makes the necessary determinations regarding requests and
subpoenas involving emplovees in the Office of Inspector Gen-
eral. )
We recognize that there are situations where EPA should
cooperate with Federal, State or local authorities as part of the
Agency's joint responsibility for developing and enforcing envi-
ronmental standards and other policies. This regulation does not
preclude such activities, and numerous EPA officials are em-
powered to authorize such testimony. The regulation also does
not apply to Congressional proceedings.
A-16
While the regulation applies to information which employ-
ees acquire in the course of performing official duties, to
production of documents in Agency files and to testimony
concerning such document, it is recognized that there are
situations where EPA employees may properly serve as expert
witnesses on behalf of private parties in matters in which they
have general expertise. Such situations are treated as outside
employment under 40 CFR Part 3, Subpart E, and employees
are required to obtain the written approval of their Deputy
Ethics Officials and to perform such activities while in an annual
leave status. In such cases, employees are required to state for
the record that they are appearing as private individuals and that
their testimony does not necessarily represent the official views
of EPA.
* * * * x
Dated: August 5, 1985.
Lee M. Thomas,
Administrator.
PART 2—|AMENDED]
For the reasons set out in the preamble, Part 2. Chapter 1
of Title 40, Code of Federal Regulations, is amended as set forth
below.
40 CFR Part 2 is amended by adding Subpart C to read as
tollows:
k * * * x
Subpart C—Testimony by Employees and Production of
Documents in Civil Legal Proceedings Where the United States
is Not a Party
2.401 Scope and purpose.
2.402 Policy on presentation of testimony and production of
documents.
403 Procedures when voluntary testimony is requested.
Procedures when an employee is. subpoenaed.
105 Subpoenas duces tecum.
IV ly to bo
nex
—
—
_—
106 Requests for authenticated copies of EPA documents.
A-17
Authority: 5 U.S.C. 301; Reorganization Plan No. 3 of 1970
2 U.S.C. App.; 33 U.S.C. 36](a); 42 U.S.C. 300j-9; 42 U.S.C.
69lla, 42 U.S.C. 7601 (a).
Subpart C—Testimony by Employees and Production of
Documents in Civil Legal Proceedings Where the United
States Is Not a Party
§2.401 Scope and Purpose.
This subpart sets forth procedures to be followed when an
EPA employee is requested or subpoenaed to provide testimony
concerning information acquired in the course of performing
official duties or because of the employee's official status. (In
such cases, employees must state for the record that their
testimony does not necessarily represent the official position of
EPA. If they are called to state the official position of EPA, they
should ascertain that position before appearing.) These proce-
dures also apply to subpoenas duces tecum for any document in
the possession of EPA and to requests for certification of copies
of documents.
(a) These procedures apply to:
(1) State court proceedings (including grand jury proceed-
ings);
(2) Fedetal civil proceedings, except where the United
States, EPA or another Federal agency is a party: and
(3) State and local legislative and administrative proceed-
ings.
(b) These procedures do not apply:
(1) To matters which are not related to EPA;
(2) To Congressional requests or subpoenas for testimony
or documents:
(3) Where employees provide expert witness services as
approved outside activities in accordance with 40 CFR Part 3
Subpart E (in such cases, emplovees must state for the record
that the testimony represents their own views and does not
necessarily represent the official position of EPA
Where emplovees voluntarily testify as private citizens
with respect to environmental matters (in such cases emplovees
must sta’e tor the record that the testimony re presents their ow:
views and does not necessarily represent the official position of
KPA
: The purpose if this Subpart is to ensure that ¢ mplove es
theial time is used only tor official purposes, to maintain the
impartiality t EPA among private litigants, to ensure that
public finds ire noft “used tor rivate Nurposes ind to establish
| Pur]
procedures for ipproving testimony 7 production t documents
when clearly in the interests of EPA
$2.402 Policy of presentation of testimony and production of
documents.
i) With the approval of the cognizant Assistant Adminis
trator, Othce Director. Staft Othce Director or Regional Admit:
strator or his designee | PA emplovees is detined in 40 CFR
} 102 (a) and (b)) mav testify at the r juest of another Federal
wen rr. where it is in the interests of EPA, at the request of
' ' ’
,
Stilts yr iocal government or State egisiative commiuttecr
ly xcept is pert itted by paragraph i) of this section. 1
EPA mpl ree ma provide testimony or pr duce documents it
T 1! weedi gy to which this Subpart ipplies COnCETHINYG int
maith cCCuuIre d in) the course of pertorming oth ial d ithes O17
ly suse of the emplovec s oth ial relationship with | pA inless
i th, ry ed thy (ene! ( ) ~~ , his desig ere cle
pe 103 thro h) 1065
>] ) ) ;
$2.403 Procedures when voluntary testimony is requested
'
\ re LL st tor testimon ' in} | PA ip ere cle
. } ’
~ 102] must De vrit ine st tute the ture ny tive
: ‘ ls +; . 1 ¢} | +} ; ; }
sues t*sStll ) i | cus \T if LeSTLTTNIOT oO)
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‘ tive ] t¢ e*st | | | \ ‘5 | ré ] ests Te riveree cliate |
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; ity ; vith tive ipprol ricate \ wa ; Ac TT sty if .
ft emp! vees in the Othe t Inspector Ge ! the Inspector
Ceneral ' his designe deter nes whetthrye iplia ce with
thre request W wuld clear| ec } the interests t EPA and
’ sponds is 8) is pract | ‘
$2.404 Procedures when an employee is subpoenaed.
’ ] }
i) 4 Opes ot subpoenas mus immediate iv i nt to tl
' , ,
( o¢ era C Wset OF his cle sivnec with the recommendations rT
' ' ’ . . :
th emi vee S$ SsUDeTVISOrS | vw (.,eneral Co S4 r his desig
| '
ee, in consultation with the ippropriate Assistant Administra
. . ,
tor, Regional Administrator or Staff Office Director, determines
' ' , , ; , ' ' .
vhether comphance with the subpoena would eal De mm the
] !
interests ol I PA ma re sponds iS SOO iS praficable
1 ' ' ' ' ' .
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’ lv with ¢] | Hy #]
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$2.405 Subpoena duces tecum
Srbnooel S di fs Th tev? | ; , thyeer iter) "
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i « ear ( ri} ~é ’ ’ e*a) ‘ " mysuiitiaty vith tive
4 -2() a
compliance with the subpoena is clearly in the interests of EPA,
the employee must appear at the stated time and place (unless
advised by the General Counsel or his designee that the
subpoena was not validly issued or served or that the subpoena
has been withdrawn) and respectfully refuse to produce the
subpoenaed materials. However, where a subpoena duces tecum
is essentially a written request for documents, the requested
documents will be provided or denied in accordance with
Subparts A and B of this Part where approval to respond to the
subpoena has not been granted
$2.406 Requests for authenticated copies of EPA documents.
Requests for authenticated copies of EPA documents for
purposes of admissibility under 28 U.S.C. 1733 and Rule 44 of
the Federal Rules of Civil Procedure will be granted for
documents which would otherwise be released pursuant to
Subpart A. For purposes of Rule 44 the “person having legal
custody of the record” is the cognizant Assistant Administrator,
Regional Administrator, Staff Office Director or Office Director
or his designee. The advice of the Office of General Counsel
should be obtained concerning the proper form of authentica-
tion
FR Doc. 85-18938 Filed S8-S-S5. 8:45: am
BILLING CODE C540-60-M
\-2]
WILSON ELSER, MOSKOWITZ, EDELMAN & DICKER
BY: K. SCOTT/B. CHASAN
ATTORNEY FOR: SUN PIPE LINE COMPANY
IDENTIFICATION NO. 31821/29227
ISI] CHESTNUT STREET
PHILADELPHIA, PA 19103
215) 563-5600
JOSEPH HUDACHEK, et al COURT OF COMMON PLEAS
Plaintiffs BUCKS COUNTY
SUN COMPANY, INC., et al NO. 54-01 113-1 1-2
Defendants
SUN PIPE LINE COMPANY'S REQUESTS FOR
ADMISSIONS TO PLAINTIFFS (FEBRUARY 20, 1987)
AND ANSWERS THERETO
TO: Joseph, Diane and Jason Hudachek
c/o Paul R. Beckert, Jr., Esquire, P.C
634 Bristol Pike
Suite 200
Bensalem, PA 19020
Pursuant to Pennsylvania Rules of Civil Procedure 4014
vou are hereby requested to admit within thirty (30) days of
service hereof, for purposes of this action only, the truth of the
following facts and opinions
2. (a) On April 6, 1983, the Enviromental Protection
Agency sampled both the Hudachek home (kitchen and
basement) and outside ambient air in Newtown Crossing.
with a field gas chromatograph and obtained the following
results reported in the April 19, 1983 letter from Theodore
C. Erdman to Gary A. Schultz, Attachment “B™: Hudachek
Kitchen and Basement: Interference from solvent used in
home; outside air sample Il: 5 ppb benzene and 7 ppb
toluene; outside air sample Il: 6 ppb benzene and 3 ppb
toluene.
‘Answer]| It is admitted only that the letters are
authentic. Plaintiffs are not able to admit that those records
are accurate, how the tests were conducted, the manner of
interpretation of the tests or the accuracy of the results,
which are specifically denied.
(b) The parts per billion (ppb) of benzene and toluene
and other results reported in Mr. Erdman’s April 19, 1983
letter (and above) are true and correct results.
‘Answer]| It has been specifically admitted that the
April 19, 1983 letter is authentic. Plaintiffs do not admit the
accuracy of the records, the manner of the testing, the
manner of interpretation or the contents thereof as other
than being a recitation of what is stated in the letter without
an admission of their accuracy or verification thereof.
3. (a) On April 7, 1983, the Environmental Protection
Agency sampled in home air in the Hudachek home
(kitchen) in Newtown Crossing, and obtained the following
results reported in the May 10, 1983 letter from Theodore
7.)
C. Erdman to Gary A. Schultz, Attachment “C”;
KPA Region |
Laboratory: Benzene 3 ppb
Toluene 1 ppb
Xvlenes 10 ppb
1.1,1-Tri chloroethane
670 ppb
Methvlene Chloride
S ppb
City of Philadelphia
Laboratory Benzene 2 ppb
Toluene 15 ppb
Xvlenes 3 ppb
A-23
(Answer] Denied as stated. Plaintiffs incorporate by
reference the answers to paragraphs 2(a) and 2(b) of the
Requests for Admissions. As to each of the letters, the letter
is admitted to be authentic. The underlving results set forth
in the letters are not admitted to be accurate for the reason
that plaintiffs have no knowledge of or control over the
manner of the testing, the manner of interpretation, the
accuracy of the results as obtained, or any other such
matters.
(b) The parts per billion (ppb) of the compounds listed
above (taken from Mr. Erdman’s April 19, 1983 letter) are
true and correct results.
[Answer] Denied as stated. Plaintiffs incorporate by
reference the denial set forth in paragraphs 2(a), 2(b) and
2(c) as fully as though set forth herein at length. It is
admitted that the letter itself is authentic.
* * *K *
VERIFICATION
I hereby verify that the statements made in the within are
true and correct upon my personal knowledge, information and
belief. I understand that false statements herein are made
subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to
unsworn falsification to authorities
5 Diane $ Hudachek
DIANE HUDACHEK
DATED: MARCH __ , 1957
ATTACHMENT B
REGION TI
GOTH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA T9106
April 19, 1983
Mir. Garv Schultz
State of Pa. Health Dept
625 Cherry Street
Reading. PA 19602
Dear Mr. Schultz
Provided below arc the results of the sampling performed
on 3-25-S3. 4-6-8S3. and 4/7/S3 in homes in the Newtown
Crossing subdivision, Bucks County, Pa
Fhe homes tested are identified by names of homeowners
which are listed on the attached map prepared by Sun Pipeline
( OMpPAN
1-6-S3
The purpose of this sampling was to collect benzene and
toluene measurements in the living space, OF the seven homes
affected by the spill, 6 were tested. The Sutton home will be
tested on 4-25-83
\ field gas chromatog iph was used with a minimum
sensitivity for benzene of | part per billion and tor toluene of Z
}) irts per billion
A-25
Samples were taken in the kitchen of each home, and in the
basement of 4 of 6 homes.
Stevenson Kitchen 14 53
Basement 13 46
Melso Kitchen § 24
Hudachek Kitchen Interference from
Basement solvent used in home
Mar Kitchen Interference 25
Basement Interference 2]
Jacobs Kitchen a 19
Leipholtz Kitchen Interference 4]
Basement 4 39
Samples were run of air (ambient air) outside of the homes.
Two typical results for benzene and toluene levels are provided
below
Outside Air PPB Benzene Toluene
5 7
6 3
4-7-S3
Samples were collected for subsequent analysis by the Cit)
of Philadelphia Health Department and EPA Region I Labora-
tory, Lexington, Mass. At this time only partial results are
available
They are analyzing for benzene, toluene, xylene and di-
bromo ethane (ethylene bromide). The bromide compound is a
gasoline additive. Only preliminary results for benzene are
available. Only the Stevenson and Hudachek homes were
sampled
Stevenson — Benzene 20 ppb
Hudachek — Benzene 2 ppb
Additional monitoring is planned for the period of April 25
May 7. Samples will be collected after the ground is soaked by
heavy rain, this is when levels of vapors entering the homes are
expect d to be the highest.
A-26
The homes that will be sampled are listed below:
lL. Stevenson
2. Hudachek
3. Marr
4. Jacobs
5. Melso
6. Leipholtz
Glover
S. Sutton
~~
Feel free to call Mr. Robert Kramer, or me if vou have
questions (215) 596-9315.
Sincerely yours,
s/ Theodore C. Erdman
Theodore C. Erdman
Air Monitoring Section
Environmental Services Division
lattached map omitted]
ATTACHMENT “C”
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
Mr. Gary A. Schultz May 10, 1983
Pennsylvania Dept. of Health
625 Cherry Street
Reading, PA 19602
Dear Mr. Schultz:
The City of Philadelphia Health Department, and EPA Region I
Laboratory, Lexington, Massachusetts have analyzed samples for organic
vapors which were collected on 4-7-83 within 2 homes of the Newtown
Crossing subdivision, Bucks County. The samples were collected in the
kitchens of the _ and Hudachek homes. Attached is a table that lists the
results of the analyses.
The Laboratory results (1) confirmed the measurements for benzene and
toluene collected on 4-6-83 using a field gas chromatograph, (2) provide
estimates of the vapor concentration of additional compounds of interest
(xvlene, ethylene bromide, tetramethyl/ethyl lead), (3) and demonstrates the
proficiency of the City of Philadelphia Laboratory. The City is analyzing the
samples collected on 4-25-83 at 9 homes affected by the gasoline vapors.
The results of the 4-25-83 sampling of 9 homes will be available in about
10 days. The samples were collected after heavy rain on 4-24 had saturated the
ground. After hedvy rain the levels of gasoline vapors entering the homes are
expected to be the highest.
The survey of 4-25-83 completes our plans for monitoring organic vapors
levels in homes affected by the November 12, 1982 gasoline spill. Let me know
if you or Center for Disease Control, Atlanta, need additional measurements
Sincerely yours,
s/ Theodore C. Erdman
Theodore C. Erdman
Air Monitoring Section
Environmental Services Division
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A-29
Wilson, Elser, Moskowitz, Edelman & Dicker
1811 Chestnut Street
Philadelphia, PA 19103
Telephone: (215) 563-5600
April 3, 1987
Donnell L. Nantkes, Esquire FEDERAL EXPRESS
Office of General Counsel
Environmental Protection Agency
401 N Street, S.W.
Washington, D.C. 20460
RE: Air Monitoring by Dr. Thomas Spittler
Director, U.S. E.P.A. Region I Laboratory
Dear Mr. Nantkes:
This law office represents Sun Pipe Line Company in the
case of Joseph Hudachek, et. ux. v. Sun Pipe Line Company, et.
al., to be tried on May 11, 1987, in the Bucks County,
Pennsylvania, Court of Common Pleas. The case involves a
pipeline accident that occurred on November 12, 1982, when a
cable television company punctured a pipeline operated by Sun
in Newtown, Pennsylvania. Approximately 100,000 gallons of
unleaded gasoline escaped from the pipeline, slightly over half
of which was recovered at the scene. The remaining gasoline
filtered its way underground and allegedly adversely affected a
nearby housing community. The Hudachek family formerly
resided in that community, but they abandoned their home due
to gasoline allegedly entering the home.
Dr. Thomas M. Spittler, Director of the United States
Environmental Protection Agency Region I Laboratory, con-
ducted air monitoring in the Hudachek residence with a porta-
ble chromatography machine. The results of the monitoring are
in the attached correspondence.
A-30
Mr. Donnell L. Nantkes
April 3, 1987
Page Two
During pretrial proceedings, Sun Pipe Line Company
submitted Requests for Admissions to the Hudacheks request-
ing that they admit the authenticity and accuracy of the air
monitoring results conducted by Dr. Spittler. Unfortunately,
they have refused to do so. It is for this reason that we find it
necessary to depose Dr. Spittler on those issues. We have
spoken with Dr. Spittler on several occasions and he has been
very cooperative regarding our inquiries. We do not anticipate
his deposition lasting more than 1 to 2 hours and we will be more
than happy to travel to Dr. Spittler’s office in Waltham,
Massachusetts or Boston in an effort to minimize any inconve-
nience to him and to the Environmental Protection Agency.
Of course, we will comply with all reasonable procedures
required by the Environmental Protection Agency in arranging
Dr. Spittler’s deposition. Also, we certainly have no objection to
having counsel for the Environmental Protection Agency
present during the deposition.
Unfortunately, Sun Pipe Line Company has been forced
into taking Dr. Spittler’s deposition by the position taken by the
Hudacheks in their pending lawsuit as explained above. Having
no alternative, we request that the Environmental Protection
Agency agree to our request for 1 to 2 hours of Dr. Spittler's
time for a deposition in Waltham or Boston regarding the air
monitoring performed by him in Newtown, Pennsylvania in the
Hudachek residence.
Very truly yours,
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER
s/ BUTLER BUCHANAN, II]
BUTLER BUCHANAN, III
BB/dya
Enclosure
ce: Dr. Thomas N. Spittler
‘exhibits to letter omitted]
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF MASSACHUSETTS
APPLICATION FOR ISSUANCE
OF ORDER REQUIRING THE
UNITED STATES ENVIRON-
MENTAL PROTECTION MBD #87.318
AGENCY TO PRODUCE DR.
THOMAS SPITTLER TO TES-
TIFY BY VIDEOTAPE DEPOSI-
TION |
Petitioner, Sun Pipe Line Company, by its attorneys, the
Law Offices of Richard D. Glovsky, and Wilson, Elser, Mosko-
witz, Edelman & Dicker, hereby petitions the United States
District Court for the District of Massachusetts as follows:
(1) The petitioner, Sun Pipe Line Company, is currently a
defendant in the actions:
* Joseph Hudachek, et al v. Sun Company, Inc., et al,
Civil Action — Law No. 84-01113-11-2 (Court of Common
Pleas, Bucks County, PA):
* Cipriani, et al v. Sun Company, Inc., et al, Civil
Action — Law No. $3-03557-11-2 (Court of Pleas, Bucks
County, PA);
* William L. Stevenson and Margaret M. Stevenson,
h/w, et alu. Sun Company, Inc., et al, Civil Action — Law
No. $4-005726-11-2. (Court of Common Pleas. Bucks
County, PA);
* Douglas St. John, et alc. Sun Company, Inc., et al.
Civil Action — Law No. $4-06412-11-2 (Court of Common
Pleas. Bucks County. PA).
2) These actions arose as a result of an accident which
occurred when a cable television company punctured a pipeline
operated by Sun Pipe Line Company in Newtown, Pennsviva
nia. thereby releasing approximately 100,000 gallons of gasoline
3) On April 3, 1987, petitioner's counsel wrote to Donnell
|. Nantkes. Esquire, Office of General Counsel, Environmental
Protection Agency. Washington. D.( requesting to take Dy
Spittler s deposition in his office at his convenience for no mor
than one to two hours (a copy of the letter is attached hereto and
labelled Exhibit A
1) In its letter, petitioners counsel explained that Dr»
Spittlh r had conducted ain monitoring tests m the Hudacheck s
residence and that during pre trial proceedings in the above
captioned cases, the Hudachecks refused to admit the accuracy
of the air monitoring results conducted by Dh Spittle a copy of
the Sun Pipe Line Companys Requests for Admissions to
Plamtitts (February 20, 19ST) And Answers Thereto are attached
ind labelled Exhibit B). Petitioner s re quest was forw irded to
Region I, EPA. Office of Regional Counsel
>) The atorementioned cases are scheduled tor trial on
Miav LL. LYS)
G) The Environmental Protection Agency has not indicated
whether or not Dr. Spittler will honor petitioner s request
On April 23, 19ST, a commission was issued out of the
Court of Common Pleas of Bucks County, Pennsvivania. autho
rizing Sun Pipe Line Company to take the ce position of Dh
Dhomas Spittler Ph.D... Director. U.S. E.P.A.. Re gion | Labo
ratory, 60 Westview Street. Lexington, MA 02173 (copy of
commission is attached and labelled Exhibit ¢
been served a CODV IS ittached
‘ \ deposition note has
und leabve le d | xhibit 1)
WHEREFORI
wales requiring the I
duce Dr. Thomas Spitth r tor a videotaped de posit
10-00 (o¢ lock 1. Thi ctl Wedne sda Via tr) | jx ~ it ;
Chics s oof Richard 1) (Cslovsk 5 | \filk Street s t
Boston NPA O98 109
SUN PIPI LINE COMI
Petiti
By Its Attorn
LAW OFFICES OF RICH
CLOVSKY
e ‘ K i ‘
K lal LD. | t
\] rk ST 5 ‘
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- 19 - ,
. } i
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nvironmental Protection
\!
\-34
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION |
I Fo. KENNEDY FEDERAL BUILDING
BOSTON. MASSACHUSETTS 02203
April 29, 1987
Mr. Butler Buchanan, III
Wilson, Elser & Morkowitz
Edelman & Dicker
IS11 Chestnut Street
Philadelphia, PA 19103
Re: Request for Deposition of Dr. Thomas Spittle:
Dear Mr. Buchanan
This letter is in re ponse to your letter, dated April 3. 19ST, to Donnell
Nantkes, Office of General Counsel requesting the deposition of Dr. Thomas
Spittler, an employee in the Environmental Services Division, Region I. U.S
Environmental Protection Agency
\ request ot this nature is governed by the regulation found at 40
(_F_R.. Part 2. Subpart C. The purpose of these regulations is to assure that
EPA emplovees official time is used for official purposes
Pursuant to 40 C.F.R. §2.403, EPA emplovees may testify in private
litigation only under circumstances where the Regional Counsel determines
that compliance with such a request would clearly be in the interest of EPA
Unfortunately, after consultation with Mr. Spittler's supervisor and_ the
Regional Administrator, | have determined that your request is not clearly in
the interest of EPA Accordingls your request is hereby denied
Should vou have any questions with re spect to this matter please contact
lames T. Owens. IL. Senior Assistant Regional Counsel at (617) 565-3325
Sincerely
s Pat Pas
Patrick A. Parenteau
Ke gional ¢ unsel
1) onell Nantke ()¢,¢
Richard Glovsky. Esq
s] Milk Street
Boston, MA 02109
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
IN RE: APPLICATION FOR
ISSUANCE OF ORDER > MBD No. 87-315
REGARDING ENVIRONMEN-
TAL PROTECTION AGENCY
BEFORE THE HONORABLE WALTER JAY SKINNER
United States District Judge
Courtroom 6
U.S.P.O. & Courthouse
Boston, Massachusetts
April 30, 1987
APPEARANCES
For the EPA:
ANDREW S. HOGELAND, ESO.
Assistant U.S. Attornes
1107 USPO & Courthouse
Boston, MA 02109
For the Sun Pipeline Company:
RICHARD GLOVSKY, ESQ.
31 Milk Street
Boston, MA 02109
DEBORAH MEEKS, Official Court Reporter, U.S. District
Court, 204 USPO & Courthouse, Boston, MA 02109, (617)
338-8439, Computer-aided Transcription
PROCEEDINGS [2:25 p.m. |
THE CLERK: MBD $7-315, In Re Application for Issuance
of Order Regarding the U.S. Environmental Protection Agency.
THE COURT: See you at the side bar.
AT THE BENCH
VIR. GLOVSkY: Richard Glovsky. I present Sun Pipeline.
VIR. HOGELAND: Andrew Hogeland representing the
EPA. To trv to keep it short, if we can, it’s the Government's
view that the area is controlled by Giza v. Secretary of HEW. A
copy of that is attached to the brief we filed about an hour ago.
We just got notice of the action
THE COURT: [ve read it.
VIR. HOGELAND: Briefly, Giza makes it clear that the
Federal Court does not have authority to enforce even a state
court subpoena if it’s issued. In this case, there's been no
subpoena issued nor apparently, either, one applied for.
THE COURT: I thought there was a subpoena issued in
Pennsylvania?
MR. HOGELAND: No, There’s a notice of deposition filed
and there's a commission issued to a court reporter to appear
authorizing the court reporter to take the deposition.
THE COURT: A subpoena out of the District Court in
Pennsylvania would have no effect up here?
MIR. HOGELAND: Well, It—two answers. First, it doesn't
have an effect here because there's no authority for this Court to
enforce it. There may be matters .» state court where the
Massachusetts state court would enforce the Pennsylvania state
court subpoena if there was one. But there isn t, so we think it
should be denied
THE COURT: Certainly the Federal Court has the author-
ity to enforce a deposition where the Witness is.
VIR. HOGELAND: Well, if the case is pending in another
Federal District Court and the subpoena issues out there, they
apply to this Court that issues a pursuant order, that's correct
The way it appears, though, is a state court who hasnt even
issued al subpoena
THE COURT: Was it in the state court
MIR. HOGELAND.: It still is. And the Giza First Circuit
case is the same. In fact, that was a Massachusetts state court
case and the Court of Appeals upheld a denial of the District
Court s entorcement
THE COURT; You sav vou ve attached that?
MR. HOGELAND.: Yes. It's here. And that's been followed
by Judge Keeton in another opinion I have
MR. GLOVSKY: That case has no bearing in this context
THE COURT: What do vou sav about the Giza case?
MR. GLOVSKY: I think it's contradicted, vour Honor, by
the EPA’S own regulations that sav vou have to come to Federal
Court to support a subpoena. And those regulations are also
attached. If your Honor please, we're
THE COURT: You mean these here?
MR. GLOVSKY: Yes, its—in fact. I have a copy tor the
Court.
Your Honor, we re only asking for the testimony that will go
for one hour and we'll do it at his convenience, wherever
THE COURT: Well, Td help vou if I had the authority to
do it. But the First Circuit seems to think that I don't have the
authority to do it
MR. GLOVSKY: They re saving there's no subpoena. In
that case, your Honor, we could get a subpoena and we'd be
right back here tomorrow
THE COURT: I don't think that’s the issue. See. this
regulation says that employees are prohibited from complying
with the requests for production tor subpoenas and to appeal
outside of matters that are not within the EPA. but that’s not
vou want this man because
MR. GLOVSKY: Because he went down to Pennsvivania
to, as an EPA emplovee
THE ( MOURT So | don t sce how Vou how does this help
vou at all?
VIR. GLOVSKY: Well. I think it suggests that vou have to
come to Federal Court if vou re going to « ompel the testimony
THE COURT: But it also suggests that if vou do come to
Federal Court. vou're not voing to get it
MR. GLOVSKY: Well, the regs provide that the avency can
permit the testimony if they feel in their discretion it's appro
priate
THE COURT: Well. | cant order them to ex reise thei:
discretion
NIK
iH
\IK
NIK
Vik
\
(ZLOVSAY: W
Ki
HOCkELAND
(,TLOOVNSAY 1}
HOGELAND
f“¢)i
VIK. GLOVSAY: We I tl K il rea il fashioned
mandamu
PH COURT: tit ret il it s discretionary. And if
t i tional ilmost hyvpothesi if not subiect ¢
lamu Mandamus is rese ed for iinisterial act
VIR. GLOVSKY: Well this situation, Judge, we re or
iS} I e | ! 1 thi al tire | think that suite
THE COURT: I w the hour if 1 had the
thor But | ead thi i iVvindg | lor t ha e the
wathority and. therefore. I have to advice vith regret that
MR. GLOVKSY: Mav I do this, Judge, because I just
received these papers? If I ca ache wait se sesthanats
iv i ie back to see the ¢ rt thi
THE COURT: Well, | , , W
iething. vou ought to ha ir authorit
MR. GLOVSKY: I thought we did in the regulat
THE COURT: Well. vou're wrong
VIR. GLOVSRY: [1 it always right
rHE COURT: | think the best thing t
b { it. Be i f t cos I moK f ‘ ' re @
t fet Ve! lar witli muir petitw
Vik. GLOVSKY: Can I have a dav to review the case
rHE COURT: Well, if i want to move for reconsidera
VIR. HOGELAND: Thank
Vik. GLOVSKY: Thanh hud
iHik CLERA: It t in t
bHk COURT: It t in ) f
,
A-39
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
APPLICATION FOR ISSUANCE |
OR ORDER REQUIRING THE ~
UNITED STATES ENVIRONMEN- |
TAL PROTECTION AGENCY TO — MBD#57-315
PRODUCE DR. THOMAS .
SPITTLER TO TESTIFY BY
VIDEOTAPE DEPOSITION
MOTION FOR RECONSIDERATION OF ORDER DENY-
ING THE PETITION OF SUN PIPE LINE COMPANY TO
REQUIRE THE ENVIRONMENTAL PROTECTION
AGENCY TO PRODUCE DR. THOMAS SPITTLER FOR
A VIDEOTAPE DEPOSITION
Petitioner, Sun Pipe Line Company (“SPL”), by its attor-
neys, the law offices of Richard D. Glovsky, and Wilson, Elser,
Moskowitz, Edelman & Dicker, hereby moves for reconsidera-
tion of this Court's Order of April 30, 1987, denying petitioner's
application for an order requiring the Environmental Protection
Agency (EPA) to produce Dr. Thomas Spittler to testify by
videotape deposition. In support of this Motion for Reconsider-
ition, petitioner avers as follows:
|. All averments in SPL’s original application filed on
,
April 29. 1987 are realleged and incorporated herein by
rt te rer’
2 The EPA filed its opposition to SPL’s original
pplication on April 30, 1987.
s. At the hearing before this Honorable Court on April
1). 19ST. the court sustained EPA‘s position mainly on the
withority of Giza v. Secretary of HEW, 625 F.2d 748 (1st
Cir. 1980). See copy of transcript attached hereto.
\-40
$. Petitioner believes the holding of Giza v. Secretary
of HEW, supra, is inapposite in the factual circumstances
here, and desires to present further argument distinguish-
ing it.
5. Petitioner would characterize this proceeding as an
action for judicial review of agency action which it contends
is arbitrary, capricious and an abuse of discretion. In
particular, the action of the EPA Regional Counsel in
refusing to permit the videotape deposition of Dr. Thomas
Spittler is the agency action complained of.
6. This court has authority to review a federal agency s
exercise of discretion in refusing to permit deposition
testimony by an agency emplovee. Reynolds Metals Com-
pany t. Crowther, 572 F.Supp. 258, 291 (D. Mass. 1983).
7. The action of the EPA Regional Counsel in refusing
to permit Dr. Spittler’s videotape deposition was an abuse
of discretion because (1) such testimony by Dr. Spittler
would indeed further the public interest, as it) would
pertain to matters closely connected with EPA business,
and (2) such testimony, in the circumstances here, cannot
be misconstrued as taking sides in. private litigation. For
these reasons, which will be expanded upon in the attached
Memorandum of Law, it is clear that the EPA Regional
Counsel abused his discretion in applying the criteria of 40
C.F.R. §$2.401 et seg.. 50 Fed. Reg. 32387 (August 9,
1983).
\-4]
WHEREFORE, it is respectfully prayed that this Honor-
able Court will reverse its prior ruling and order the EPA
Regional Counsel to permit the videotape deposition.
Law Offices of Richard D. Glovsky |
Richard D. Glovsky
31 Milk Street, Suite S10
Boston, MA 02109
617) 423-7100
By: S Richard D. Glov sky
and
WILSON, ELSER, MOSKOWITZ
EDELMAN & DICKER
By: s/ Bruce J. Chasan
Kenneth Scott
Bruce J. Chasan
Butler Buchanan, II]
IS11 Chestnut Street
Philadelphia, PA 19103
215) 563-5600
\-42
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
APPLICATION FOR ISSUANCE
OF ORDER REQUIRING THE
UNITED STATES ENVIRONMEN-
PAL PROTECTION AGENCY TO MBD #87-315
PRODUCE DR. THOMAS
SPITTLER TO TESTIFY BY VID-
KOTAPKE DEPOSTTION
AFFIDAVIT OF COUNSEL
FOR SUN PIPE LINE COMPANY
City of Philadelphia
Commonwealth of Pennsvlvania
BRUCE J. CHASAN, being duly sworn, deposes and says
as tollows
|. | am the attorney of the record for Sun Pipe Line
Company. a Pennsylvania corporation, in numerous cases
presently pending in the Court of Common Pleas for Bucks
County, PA
>
2. All factual averments in the attached Motion For
Reconsideration Of Order Denying The Petition Of Sun
Pipe Line Company To Require The Environmental Pro-
tection Agency To Produce Dr. Thomas Spittler For A
Videotape Deposition, and all factual averments in the
A-43
accompanying memorandum of law in support thereof, are
true and correct to the best of my knowledge, information
and belief.
s/_ Bruce J. Chasan
BRUCE J. CHASAN
SWORN TO AND SUBSCRIBED
BEFORE ME THIS 4th
DAY OF MAY, 1987.
s/ Veronica A. Love-Myers
NOTARY PUBLIC
VERONICA A. LOVE-MYERS
Notary Public, Phila., Phila. Co.
My Commission Expires Oct. 29, 1990
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
APPLICATION FOR ISSUANCE OF
ORDER REQUIRING THE
UNITED STATES ENVIRONMEN-
TAL PROTECTION AGENCY > MBD #87-3158
TO PRODUCE DR. THOMAS
SPITTLER TO TESTIFY BY VIDEO-
TAPE DEPOSTTION
MEMORANDUM OF LAW IN SUPPORT OF MOTION
FOR RECONSIDERATION OF ORDER DENYING
THE PETITION OF SUN PIPE LINE COMPANY TO
REQUIRE THE ENVIRONMENTAL PROTECTION
AGENCY TO PRODUCE DR. THOMAS SPITTLER FOR
A VIDEOTAPE DEPOSITION
INTRODUCTION
The Environmental Protection Agency (EPA) has regula-
tions governing the extent to which its employees may testify in
private lawsuits. 40 C.F.R. $§2.401 ef seq 50 Fed Reg. 32356
August 9. 1985). These regulations are clearly not a blanket
proscription of EPA employee testimony in private lawsuits. As
the agency said in the preamble to the regulations
We recognize that there are situations where EPA
should cooperate with Federal, State or local authorities as
part of the Agency's joint responsibility for developing and
enforcing environmental standards and other policies. This
regulation does not preclude such activities. and numerous
EPA officials are empowered to authorize such testimony
7)
50 Fed. Reg. 32386. Further. in explaining the “evils” which the
iWency expected would he avoided hy the regulations. the
eamble stated as tollows
A-45
The intended effect of this regulation is to ensure that EPA
employees time is spent on EPA business and to avoid the
appearance that EPA is taking sides in private litigation.
Id., 50 Fed. Reg. 32386. See also, 40 C.F.R. §2.401(c), 50 Fed.
Reg. at 32387.
Clearly EPA must exercise discretion in deciding when it
will permit its employees to testify in private lawsuits, and that
discretion is clearly subject to judicial review. Reynolds Metals
Company v. Crowther, 572 F.Supp. 288, 291 (D. Mass. 1983)
(“The narrow basis of this court's decision clearly does not
preclude appropriate judicial supervision of a department's
exercise of discretion to prohibit testimony by its emplovees. ”)
Under the facts presented in this matter, it is clear that the
EPA became involved in the aftermath of the Newtown, PA
pipeline accident to develop valid data which could be used by
state, local and federal authorities to develop health criteria.
EPA itself was not concerned with setting any standards, and it
did not do so. Dr.Spittler’s testimony is desired for the purpose
of establishing the validity of certain measurements he made in
1983 in individual homes.! This is a mere extension of the work
he did in 1983, and it clearly remains a matter of public interest.
There is very little risk of any appearance that Dr. Spittler’s
testimony will tend to favor one party or another. Furthermore,
the time involved (an estimated 1 to 2 hours for a videotape
deposition) is de minimus in light of the substantial manpower
that EPA has already devoted to the air monitoring work it did
in Newtown, PA.
FACTUAL BACKGROUND
SPL’s petroleum pipeline was punctured by a cable televi-
sion contractor in Newtown Township, PA on November 12,
1982. Approximately 50,000 gallons of unleaded gasoline was
1. Dr. Spittler will not be asked to give opinions as to whether the levels
he found were safe or toxic. The parties in the Pennsylvania litigation have
industrial hygienists, toxicologists, and medical doctors to render those ivpes
of expert opinions. However, Dr. Spittler's expertise as a chemist is relevant
to show his competence to make valid, reliable measurements
‘ | the oy j Th)
\ ' ! shoclan asnan vliacont | thy ite tothe
, peapy tian - f slanne ThE entorime thei
» then basement Th Vn PrETT Taal
tes attribute various adverse health svmptoms to exposure
Van ST lrivedl in) TITLE trial 1, Tei steowurt
\ cual | | bears i| tart TL MLL LLL 1"
i ‘ { me ré thy level f liavckeo ay locen
final i THLE wv rete | , \farcl » TON 4 senet
i 1} afte’ « TT) <4 it 1 thy ryote
{ \ (2 \. | { bale Pon loanta Depart
Health was present. Numer flected homeowner
ttendance. An excerpt from the transeript (pp
it Lhereto as Exhibit A As can be seen. Mi
‘ that tte ‘ lan partie i Tlealth
il i ’ if | t ti | TTEELG ell ee i
| lent. mnpartia ' lo the testi
|
f TETTIT ' Now! =
’ } | | } ]
\ i ’ is ' fata ‘ Tole earl
| 14 sire 4) ata*y
'
| ( f ' ) { ty thy | , — :
t the { i 1 ti | , ‘ { Denpartmes |
PA l the Stewart
| I | 1 | iT See
i)
{ (
1 \\ | i i
‘ ’ ‘ ; ‘ } tate
' , |
4 SPI | i ( | { tue
{ { { { i Tt t thy
1, ned
: ' i I
'
{ ‘ used ft vc it
results into evidence without ar pportunit t rOSS-@C XG
the chemist who did the te ting
ARGUMENT
voverning testimony Hy ae
tinder the regulation
employer my private lawsuits the EPA must determin
whether the prrerprarse d testimony is in the agency s interest, ¢
noha cooperating with Federal. state or local authorities
dew loping environmental standards and other polic ies, and
must also consider other factors such as the extent to which th
proposed testimons will divert EPA resources trom the ager
beeesamnes or whether the propose d testimony will we U
IPpcarance that thre weney tavors on sche yr tthe ther sic
the litigation. There TS no set formula tor weighing each of the
factors in anv given situation. but lear! uli factor t f
considered onecl the mWeney s lecisio tren t i
cvenaye fine COMCOCTHS ly thr ice ) ‘ i
clea that thre EPA Re vi mal nul
veizht to all factors, and he ther
otis to permit 1) Spitth
i A\rcordin frie pry Arn
be the least of KPA s | rt
the Newtow ( Ssing
(ar Scl | i the | M i
len bEPAw y
rf tial antag Sts \ i
\-45
his results?. It will be for other experts to state whether the
levels of vapors found were safe or toxic.
Giza v. Secretary of HEW, 628 F.2d 748 (1st Cir. 1980), is
distinguishable because there the plaintiffs frankly admitted
they were attempting to use the FDA employees as. expert
witnesses. Id., 628 F.2d at 750-51 and n.3. SPL has no such
interest in this case. Dr. Spittler’s expertise in chemistry will be
developed only to the extent necessary to prove his competence
and ability to obtain correct air monitoring results} Other
witnesses will present expert opinions that the levels of gasoline
vapors present were not toxic
2. Avoiding Diversion of Agency Resources. The major
thrust of EPA’s opposition to the deposition testimony of D1
Spittler is the argument that agency manpower cannot be
diverted from the thousands of hazardous waste sites around the
country which deserve remediation. See EPA Br. at 6. This
sounds like a “parade of horribles” argument, and one which is
highly exaggerated, too
The vast majority of private litigants in environmental
lawsuits in state and federal courts will normally stipulate the
truth and admissibility of EPA test results. It is submitted that
the number of cases such as Hudachek v. Sun Company, where
such admissions were not obtained, is relatively rare. +
Furthermore, the additional imposition on EPA‘s time is
rather de minimus in this case. Thy record shows that two EPA
3. In footnote 3 of its brief, EPA suggests that Dr. Spittler’s results may
be admitted in evidence under F.R.E. $03(8\.C), citing KeAm v. Procter &
Gamble Mfg. Co.. 724 F.2d 613, 61S (Sth Cir. 1983). This suggestion offers
ittle comfort to SPL. because the Federal Rules of Evidence are not in etlect
the Pennsylvania state courts. Absent Dr. Spittlers testimony and an
portunity for cross-examination, SPL, cannot be assured that EPA's test
results will be admitted in evidence
$ EPA can certainly encourage stipul itions Dv am nding its re vulations
juire a showing that the party wanting the testimony has first attempt d
to obtain a stipulation or admission trom the party opponent, just as SPL has
ne in this case. Normally this will work because, in most jurisdictions, a
irty opponent who refuses to make the admissions may be held liable tor the
t ind attorneys tees made necessary if addur mig thre proot
A-49
employees were each involved on April 6, 7 and 25, 1983. In
addition, there was lab work and correspondence. No doubt a
minimum of 10 man-days was devoted by EPA to the Newtown
Crossing project in 1983. Furthermore, in 1984, Dr. Spittler
freely talked about his work on the telephone with counsel for
SPL, and he furnished material from his files. See Exhibit “E,”
letter dated November 2, 1984 with attachments.
In this case, to reduce any inconvenience to EPA and Dr
Spittler, SPL is willing to do the videotape deposition in his
home city or even at his office. The estimated length of this
deposition is one to two hours.>
EPA‘s brief (at p. 7) seeks to support the Regional Counsel s
action by citing opposition to disclosure of attorney-client priv-
ileged communications, intra-agency deliberations, and opin-
ions by experts conducting work for EPA for possible use in
agency litigation. Plainly none of these concerns are implicated
in this case. In addition, all of Dr. Spittler's results have already
been disclosed. EPA cannot possibly have any interest in
maintaining confidentiality of Dr. Spittler’s results.°
3. Agency Interest. It is certainly hoped that EPA does
not take a purely parochial or narrow view in determining what
its interests are. Often the interests of the agency and the
interests of private litigants in the proper administration of
justice are in harmony. The same public concerns which. in-
duced EPA to do air monitoring in Newtown Crossing in 1983
will still be at work in the forthcoming jury trials between SPL
(and its co-defendants) and various displaced homeowners. The
jurors, in the proper administration of justice, will want to know
if any independent, non-aligned agency did any air monitoring
and if so, what were the results (if available and otherwise
admissible). The jurors may or may not give more weight to the
5. SPL has also offered to reimburse EPA for Dr. Spittler’s time, but this
offer has been discouraged
6. In United States ex rel. Touhy ve. Ragen, 340 U.S. 462 (1951), the
Court upheld the Attorney Generals decision not to perimit disclosure. of
agency documents. In the present case the documents are already universally
wailable. Cf. Sweet vc. Schenk, 792 F.2d 1447, 1452 (9th Cir 1986) (Norris. |
lisse ntimg ind distinguishing Pouly
A-50
test results obtained by EPA (compared to those obtained by the
industrial hygienists retained by SPL), but it certainly would not
be surprising if they did. The EPA results may well enhance the
jury's confidence in its verdict, whatever it is.
It is unlikely that EPA’s image will be in any way tarnished
or diminished by permitting Dr. Spittler to testify by videotape
deposition. Indeed, permitting his testimony may well enhance
the administration of justice. Certainly this is something “in the
public interest,” with which EPA’s interests are not at all in
conflict. On the contrary, EPA epitomizes a “public interest”
governmental agency, and the citizens of the United States
should be able to look to it for unbiased factual information
concerning disputes about environmental matters.
Even if one viewed EPA's interests narrowly, then the counters ailing
interests referenced above will balance a not outweigh the narrow agency
mitcrests
A-51
CONCLUSION
Consideration of all elements in 40 C.F.R. §§2.401 et seq.
clearly shows that the EPA Regional Counsel failed to give
appropriate weight to the factors which auger for allowing the
deposition of Dr. Thomas Spittler. The action of the Regional
Counsel was arbitrary, capicious, and an abuse of discretion.
This court should order the Regional Counsel to permit the
deposition.
—_—
Respectfully submitted,
Law Offices of Richard D. Glovsky
By: 8 Richard D. Glovsky
Richard D. Glovsky
31 Milk Street, Suite SLO
Boston, MA 02109
(617) 423-7100
and
WILSON, ELSER, MOSKOWITZ.
EDELMAN & DICKER
By: s Bruce J. Chasan
Kenneth Scott
Bruce J. Chasan
Butler Buchanan, HI
ISLL Chestnut Street
Philadelphia, PA 19103
(215) 563-5600
exhibits and certificate of service omitted]
at —_ OO —————
A452
[Handwritten Order in margin of Motion For Reconsider-
ation Of Order Denying The Petition Of Sun Pipe Line Com-
pany To Require The Environmental Protection Agency To
Produce Dr. Thomas Spittler For a Videotape Deposition }:
DENIED. The Reynolds Metals case cited by petitioner
confirms the prior denial of the petition. SST WYSkinner
US.DJ.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.