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

United States District Court, D. Rhode Island

August 17, 2017

EMHART INDUSTRIES, INC., Plaintiff and Counterclaim Defendant,
NEW ENGLAND CONTAINER COMPANY, INC; et al., Defendants and Counterclaim Plaintiffs. EMHART INDUSTRIES, INC., Plaintiff and Counterclaim Defendant,
UNITED STATES DEPARTMENT OF THE AIR FORCE; et al., Defendants, Counterclaim Plaintiffs, and Third-Party Plaintiffs,
BLACK & DECKER, INC.; et al., Third-Party Defendants.


          William E. Smith, Chief Judge

         I. Introduction

         Dioxin and other toxic chemical pollution at the Centredale Manor Restoration Project Superfund Site (“Centredale Site” or “Site”) in North Providence, Rhode Island, has led to going on ten years of litigation over which parties are responsible and what is the appropriate remedy. The Court divided the litigation into three phases. (See Eighth Revised Case Management Order, ECF No. 295.)[1]At the close of trial in Phase I, the Court found Emhart jointly and severally liable for the release of dioxin at the Site. The Court has now concluded Phase II of the trial[2] and must provide findings of fact and conclusions of law addressing the following two issues: (1) whether the Environmental Protection Agency's (“EPA”) remedy-selection process was arbitrary, capricious, or otherwise not in accordance with law; and (2) whether Emhart had sufficient cause to refuse to comply with EPA's June 10, 2014 Administrative Order. The necessary contributions, if any, of third-party defendants will be addressed in Phase III of the trial. The Court provided a comprehensive background discussion and procedural history of this case in its Phase I opinion and need not repeat it here. (See Phase I Findings of Fact and Conclusions of Law (“Phase I Findings”), ECF No. 405.) However, since issuing the Phase I Findings, there have been three new and important developments in the case relating to the Phase II litigation. First, the parties have come to an agreement regarding the United States' past response costs in light of the Court's findings in Phase I. (See Stipulation Regarding United States' Past Response Costs, ECF No. 444.) As such, the Court need not determine the amount of past response costs.

         Second, the Government moved to limit the scope of judicial review during Phase II. (Gov't Mot. to Limit Disc. and Scope of Review, ECF No. 415.) The Government argued that, because judicial review under CERCLA is strictly limited to the administrative record, Emhart should be prohibited from presenting any evidence or arguments not found in the administrative record. Emhart opposed the Government's motion, arguing that review under CERCLA is not so limited. (Emhart Obj., ECF No. 416.) The Court denied the Government's motion without prejudice, thereby allowing Emhart to conduct discovery and present the objected to evidence and arguments at trial. (Order Den. Mot. to Limit Disc. and Scope of Review 6, ECF No. 421.) However, the Court has reserved its judgment on the ultimate admissibility of the challenged evidence and arguments to this point. (Id. at 6.)

         Third, and lastly, the Government moved to exclude certain portions of testimony provided by Emhart's expert, Mr. Jeffrey Loureiro. (Gov't Mot. to Exclude Certain Test. of Jeffrey Loureiro, ECF No. 447.) The Government argued that significant portions of Mr. Loureiro's opinions had not been disclosed in his expert report in violation of Rule 26(a)(2) of the Federal Rules of Civil Procedure. According to the Government, the admission of Mr. Loureiro's testimony would be “highly prejudicial . . . given the United States' inability to explore such opinions through discovery or to counter them effectively through rebuttal testimony.” (Id. at 2.) In light of the Government's concerns, the Court decided to allow the testimony of Mr. Lourerio but provided the Government an opportunity to conduct additional discovery and to designate and utilize rebuttal experts to address the concerns highlighted in the Government's motion. The Court therefore denied that motion as moot. (Text Order of 10/07/2016.)

         In this decision, the Court will set forth its findings of fact and conclusions of law with regards to the question of remedy, and address along the way the various issues reserved to this point. See Fed.R.Civ.P. 52(a)(1). The decision begins with an overview of the CERCLA process by which EPA may choose a response action, as well as the standards of judicial review for challenges to a response action. Next the Court provides specific findings of fact, starting with a history of EPA action at the Site, and then moving into the topics which provide the bases for Emhart's challenge. After each topic the Court provides conclusions of law. II. Remedy Selection Congress enacted the Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., “in response to the serious environmental and health risks posed by industrial pollution.” United States v. Bestfoods, 524 U.S. 51, 55 (1998). To address those risks, CERCLA “grants the President broad power to command government agencies and private parties to clean up hazardous waste sites.” Id. (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 814 (1994)). These cleanup efforts are called “response actions, ” and may require both “the cleanup or removal of released hazardous substances” as well as other “remedial action . . . to prevent or minimize the release of hazardous substances.” 42 U.S.C. § 9601(23)-(25).

         EPA acts on the President's behalf in choosing the appropriate response action. See Exec. Order No. 12580(b)(1), (g). In doing so, EPA must work within the framework provided by CERCLA and the National Contingency Plan (“NCP”). See 42 U.S.C. 9604(a)(1) (requiring EPA to act “consistent with the national contingency plan”); National Contingency Plan, 40 C.F.R. § 300, et seq. In addition, EPA has established various guidance documents to assist in the CERCLA process. While these guidance documents are non-binding on EPA, they do represent EPA's collective wisdom as to best practices.[3] The steps required by CERCLA and the NCP, and implemented with the assistance of EPA guidance documents, are outlined below.

         A. National Priorities List

         The first step in the CERCLA process is placing a site on the National Priorities List (“NPL”). See 42 U.S.C. § 9605(a)(8)(b); 40 C.F.R. § 300.425. A site is appropriately included on the NPL if, for example, EPA determines that a hazardous substance poses “a significant threat to public health.” Id. § 300.425(c)(3)(ii). A notice and comment period is required before a site is officially placed on the NPL. Id. § 300.425(d)(5). Once the notice and comment process is complete, and if EPA determines that NPL listing is still appropriate, EPA may begin the process of developing a response action for the site.

         B. Remedial Investigation and Feasibility Study

         EPA is required to conduct a remedial investigation (“RI”) and feasibility study (“FS”) before choosing a response action. The end goal of the RI/FS process is “to assess site conditions and evaluate alternatives to the extent necessary to select a remedy.” Id. § 300.430(a)(2). The first step is the RI, which seeks to “collect data necessary to adequately characterize the site for the purpose of developing and evaluating effective remedial alternatives.” Id. § 300.430(d)(1). EPA is given significant leeway to develop a RI process specific to the site. But, at a minimum, EPA must conduct a field investigation (i.e., collect site-specific data) and create a baseline risk assessment. Id.

         The data collected during the field investigation includes the physical characteristics of the site and the hazardous material present as well as the exposure pathways through which the hazardous material may affect human health and the environment. Id. § 300.430(d)(2)(i)-(vii). Part of this process involves estimating the reasonable maximum exposure that is likely to occur for both current and potential future land use at the site. (EPA, Interim Final Risk Assessment Guidance for Superfund (“IFRAGS”), vol. I, Emhart579-24.) EPA then uses this data in the baseline risk assessment to understand the extent to which hazardous materials pose a threat to human health and the environment, as well as what would be “acceptable exposure levels” for the site going forward. 40 C.F.R. § 300.430(d)(4).

         At this point, EPA transitions from the RI process of collecting data to the FS process of finding a remedy.[4] “The national goal of the remedy-selection process is to select remedies that are protective of human health and the environment, that maintain protection over time, and that minimize untreated waste.” Id. § 300.430(a)(1)(i). As an aid to developing potential remedies that accomplish this overarching goal, EPA first establishes what are labeled Preliminary Remediation Goals (“PRGs”) targeting “acceptable exposure levels that are protective of human health and the environment.” Id. § 300.430(e)(2)(i). These PRGs must, among other things, comply with federal and state environmental laws[5] and limit the lifetime cancer risk from carcinogenic exposure. Id. § 300.430(e)(2)(i)(A)(1)-(2). EPA then develops a range of response alternatives that may achieve those PRGs.

         In order to choose among the response options for the site, the various alternatives are initially screened using three criteria: (1) effectiveness; (2) implementability; and (3) cost. Id. § 300.430(e)(7)(i)-(iii). At this stage, alternatives that provide “significantly less effectiveness” or are “technically or administratively infeasible” may be eliminated. Id. § 300.430(e)(7)(i)-(ii). Additionally, “[c]osts that are grossly excessive compared to the overall effectiveness of alternatives may be considered as one of several factors used to eliminate alternatives.” Id. § 300.430(e)(7)(iii).

         Alternatives that survive the initial culling proceed to the “detailed analysis of alternatives.” Id. § 300.430(e)(9). This requires “an assessment of individual alternatives against each of nine evaluation criteria and a comparative analysis that focuses upon the relative performance of each alternative against those criteria.” Id. § 300.430(e)(9)(ii). The nine criteria used by EPA to compare alternatives are: (1) overall protection of human health and the environment; (2) compliance with federal and state environmental laws (i.e., “ARARs”[6]); (3) long-term effectiveness and permanence; (4) reduction of toxicity, mobility, or volume through treatment; (5) short-term effectiveness; (6) implementability; (7) cost; (8) state acceptance; and (9) community acceptance. See id. § 300.430(e)(9)(iii)(A)-(I). Once sufficient information has been gathered such that EPA can compare the alternatives based on the nine evaluation criteria, EPA may proceed with remedy selection.

         C. Remedy Selection

         During remedy selection EPA places the nine evaluation criteria into three categories. The first category, labeled “threshold criteria, ” are the criteria “that each alternative must meet in order to be eligible for selection.” Id. § 300.430(f)(1)(i)(A). The two threshold criteria are overall protection of human health and the environment and compliance with ARARs (criteria (1) and (2), above).[7]

         Once EPA has screened out alternatives that do not meet the threshold criteria, EPA then compares the remaining alternatives based on the second category of criteria, labeled “primary balancing criteria.” Id. § 300.430(f)(1)(i)(B). These include long-term effectiveness and permanence, reduction of toxicity, mobility, or volume through treatment, short-term effectiveness, implementability, and cost (criteria (3)-(7), above). Id. As the label suggests, these “primary balancing criteria” are balanced against one-another. In doing so, the NCP provides certain preferences. For instance, a remedy must be “cost-effective” in that “its costs are proportional to its overall effectiveness.” Id. § 300.430(f)(1)(ii)(D). In addition, “balancing shall emphasize long-term effectiveness and reduction of toxicity, mobility, or volume through treatment, ” thereby focusing on “permanent solutions . . . to the maximum extent practicable.” Id. § 300.430(f)(1)(ii)(E). However, in the end, the NCP does not dictate exactly how the primary balancing criteria should be weighed. Instead, the NCP provides EPA with considerable discretion to select a remedy that “reflect[s] the scope and purpose of the actions being undertaken and how the action relates to long-term, comprehensive response at the site.” Id. § 300.430(f)(a).

         The last category EPA must consider is the “modifying criteria.” Id. § 300.430(f)(1)(i)(C). The modifying criteria include state and community acceptance (criteria (8) and (9), above). Because the state and community provide formal input during the notice and comment period for the proposed plan, state and community acceptance is typically only considered, at this stage, “to the extent that information is available during the FS.” EPA, A Guide to Preparing Superfund Proposed Plans, Records of Decision, and Other Remedy Selection Decision Documents, Emhart518-33. However, “after public comment is received on the Proposed Plan, ” the modifying criteria will be “fully considered.” Id. This means that, “[i]n the final balancing of trade-offs between alternatives upon which the final remedy selection is based, modifying criteria are of equal importance to the balancing criteria.” Id. This does not provide the state or community the power to veto a selected remedy[8]; their input is simply considered along with the other balancing criteria.

         After completing the “detailed analysis of alternatives” using the nine criteria, EPA chooses a remedy through a “two-step process.” 40 C.F.R. § 300.430(f)(1)(ii). First, EPA “identifies a preferred alternative and presents it to the public in a proposed plan, for review and comment.” Id. The proposed plan functions not only to “supplement the RI/FS, ” but also to “provide the public with a reasonable opportunity to comment on the preferred alternative for remedial action, as well as alternative plans under consideration, and to participate in the selection of remedial action at a site.” Id. § 300.430(f)(2). To accomplish this, the proposed plan must, among other things, “[p]rovide a brief summary description of the remedial alternatives evaluated in the detailed analysis” as well as “[i]dentify and provide a discussion of the rationale that supports the preferred alternative.” Id. The public is then given “a reasonable opportunity, not less than 30 calendar days, for submission of written and oral comments” as well as an “opportunity for a public meeting.” Id. § 300.430(f)(3)(i)(C)-(D).

         After receiving public input on the proposed remedy, the second step for remedy selection requires EPA to “review the public comments and consult with the state (or support agency) in order to determine if the [proposed plan] remains the most appropriate remedial action for the site or site problem.” Id. § 300.430(f)(1)(ii). The NCP anticipates that public comments may provide “new information or points of view” that prompt EPA “to modify aspects of the preferred alternative or decide that another alternative provides a more appropriate balance.” Id. § 300.430(f)(4). To the extent EPA makes any significant changes to the remedy, those changes must be documented.[9] EPA must then make the final remedy selection. Id. § 300.430(f)(4)(i).

         Just as EPA is not required to remove all uncertainty at the RI/FS stage regarding the conditions at the site, EPA is also not required to provide complete details of the final remedy at the selection stage. The NCP envisions that EPA will fill in the details of the final remedy during the implementation (or “remedial design”) phase and that the final remedy may require modifications. See generally id. § 300.435. The NCP also allows EPA to reserve decisions regarding how to handle certain portions of the remedy until remedial design. See, e.g., id. § 300.825(a)(1)-(2). This process is discussed below in the “Remedial Design and Remedial Action” section.

         D. Documentation of the Remedy-Selection Process

         After selecting the final remedy, EPA must “establish an administrative record that contains the documents that form the basis for the selection of a response action.” 40 C.F.R. § 300.800. An important piece of the administrative record is the Record of Decision (“ROD”), which includes “all facts, analyses of facts, and site-specific policy determinations considered” by EPA in selecting the final remedy. Id. § 300.430(f)(5)(i). The ROD is essentially EPA's justification for its decision, explaining, for example, “[h]ow the selected remedy is protective of human health and the environment” and “provides overall effectiveness proportional to its costs.” Id. § 300.430(f)(5)(ii)(A), (D). As part of this justification, the ROD also must include a “responsiveness summary, ” which is “a written summary of significant comments, criticisms, and new relevant information submitted during the public comment period and the lead agency response to each issue.” Id. § 300.430(f)(3)(i)(F). Lastly, if EPA chooses to reserve certain decisions for a later date, it may, “[w]here appropriate, provide a commitment for further analysis.” Id. § 300.430(f)(5)(iii)(D).

         The administrative record is not a static document. Even after the final remedy is selected, EPA is responsible for updating the administrative record where necessary. For example, if the ROD did not address a portion of the response action or reserved certain decisions until the implementation phase, EPA must document those later decisions in the administrative record. Id. § 300.825(a)(1). Additionally, if EPA decides to modify the final remedy during remedial design, it must document those changes either through an “explanation of significant differences” or a ROD amendment, as appropriate. Id. § 300.825.[10]

         E. Remedial Design and Remedial Action

         The final step is “the development of the actual design of the selected remedy and implementation of the remedy through construction.” Id. § 300.435(a). The NCP labels this as the “remedial design/remedial action (RD/RA) stage.” Id. While the ROD establishes the final remedy, the NCP leaves it to the RD/RA stage for EPA to determine the remedy's final design. The “initial building block in developing” the final design is the information contained in the RI/FS, but EPA guidance also envisions that additional “data acquisition” and “sample analysis” will be necessary during RD/RA. EPA, Scoping the Remedial Design, Emhart516-2. EPA then recommends going through multiple design phases before coming to a “final design” and beginning construction. Id. at 0001. Once a final design is complete, EPA must - as a final notice to the public - “issue a fact sheet and provide, as appropriate, a public briefing prior to the initiation of remedial action.” 40 C.F.R. § 300.435(c)(3). EPA may then implement the remedy, and as long as the “remedial action objectives and remediation goals in the ROD” are accomplished, the CERCLA response action process is largely complete. Id. § 300.435(f)(1); 42 U.S.C. § 9621(d) (stating that the response action must “attain a degree of cleanup . . . which assures protection of human health and the environment”).

         If strict adherence to the final design proves unworkable at any point, EPA guidance provides for significant “flexibility” to account for “any constraining factors of the particular site.” EPA, Scoping the Remedial Design, Emhart516-1. The NCP also foresees that “[a]dditional work” may be “needed as a result of such unforeseen situations as newly discovered sources, types, or quantities of hazardous substances.” 40 C.F.R. § 300.435(e)(1)(i). Because the “chief task” of RD/RA is “to achieve the goals of the Record of Decision . . . in a timely manner, ” EPA, Scoping the Remedial Design, Emhart516-1, as opposed to blind adherence to any particular design, EPA is permitted to change the remedial design at any point. The NCP simply requires that sufficient notice and opportunity to comment is provided to the public.[11]

         F. Unilateral Administrative Order

         The parties responsible for the release of the hazard materials at the site are liable for the costs associated with the response action. See 42 U.S.C. § 9607(a). EPA can either complete the response action and seek reimbursement from the responsible parties or require the responsible parties to implement the response action themselves. Where EPA determines that “there may be an imminent and substantial endangerment to the public health or welfare or the environment, ” EPA is authorized to issue a unilateral administrative order (“UAO”) requiring the responsible parties to implement the response action “as may be necessary to protect public health and welfare and the environment.” Id. § 9606(a).

         If a responsible party “willfully violates, or fails or refuses to comply with” the UAO, EPA may seek an order “in the appropriate United States district court to enforce” the UAO. Id. § 9606(b)(1). Additionally, if the district court finds that the responsible party refused to comply with the UAO without “sufficient cause, ” the responsible party is subject to daily fines during the period of non-compliance as well as treble damages for any work EPA performed at the site. Id. § 9606(b)(1), 9607(c)(3). By regulation, the daily fine amount is $37, 500 per day for every day of non-compliance between December 6, 2013 and November 2, 2015, and $54, 789 per day thereafter. 40 C.F.R. §§ 19.2, 19.4.

         III. Scope of Review

         Having described the remedy-selection process as outlined by CERCLA and the NCP, the Court will now provide its findings of fact and conclusions of law regarding EPA's remedy-selection process at the Site. Before doing so, however, the Court must first determine what evidence and arguments it will consider, as well as the standard of review. As discussed previously, the Government moved, pre-trial, to limit the scope of discovery and judicial review. According to the Government, the Court should not consider evidence and arguments not contained in the administrative record when making its determination about the appropriateness of EPA's chosen remedy. The Court denied the Government's motion without prejudice, permitting Emhart to take discovery and present evidence and arguments at trial not contained in the administrative record. The Court “reserve[d] ruling on the admissibility of any particular extra-record evidence until the time of trial.” (Order Den. Mot. to Limit Disc. and Scope of Review 6.) The Government has reiterated its arguments at trial and in its post-trial briefs, and Emhart has again responded. (See Gov't Post-Trial Brief 8-13; Emhart Post-Trial Reply Brief 1-22.)

         The two questions the Court must answer are: (1) whether the Court should consider evidence not contained in the administrative record; and (2) whether the Court should consider Emhart's arguments that were not made during the notice and comment period.

         A. What Evidence Should the Court Consider?

         CERCLA provides the following limitation to judicial review: “In any judicial action under this chapter, judicial review of any issues concerning the adequacy of any response action taken or ordered by the President shall be limited to the administrative record.” 42 U.S.C. § 9613(j)(1) (emphasis added). CERCLA reiterates this limitation when describing the applicable standard of review: “In considering objections raised in any judicial action under this chapter, the court shall uphold the President's decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law.” Id. § 9613 (j)(2) (emphasis added).[12] As these provisions make clear, “[u]nder CERCLA, judicial review normally is limited to the administrative record as it existed at the time of the challenged agency action.” United States v. JG-24, Inc., 478 F.3d 28, 33-34 (1st Cir. 2007); see also Murphy v. Comm'r of Internal Revenue, 469 F.3d 27, 31 (1st Cir. 2006) (“[T]he Supreme Court has consistently stated that review of administrative decisions is ordinarily limited to consideration of the decision of the agency . . . and of the evidence on which it was based.”) (internal quotations omitted). This ensures that the Court “take[s] into account ‘neither more nor less information than did the agency when it made its decision.'” Linemaster Switch Corp. v. EPA, 938 F.2d 1299, 1305 (D.C. Cir. 1991) (quoting Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)).

         However, while generally confining the scope of judicial review to the administrative record, CERCLA also provides that “[o]therwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court.” 42 U.S.C. § 9613(j)(1). Typically, “[c]ourts require a strong showing of bad faith or improper behavior before ordering the supplementation of the administrative record.” Town of Norfolk v. U.S. Army Corps of Eng'rs, 968 F.2d 1438, 1458-59 (1st Cir. 1992); see also JG-24, Inc., 478 F.3d at 34 (“Normally, we do not allow supplementation of the administrative record unless the proponent points to specific evidence that the agency acted in bad faith.”). This exception provides no assistance to Emhart, as there is no evidence that EPA crafted a remedy for the Site in bad faith or based on an improper motive, and EPA's “designation of the Administrative Record, like any established administrative procedure, is entitled to a presumption of administrative regularity.” Nw. Bypass Grp. v. U.S. Army Corps of Eng'rs, No. CIV 06-CV-00258-JAW, 2007 WL 1498912, at *2 (D.N.H. May 14, 2007) (quoting Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993)).

         Emhart must therefore find some other legal avenue if it is to successfully inject evidence outside the administrative record into this proceeding. Outside of a showing of bad faith, the First Circuit recognizes two other “exceptions to the rule against supplementation.” Nw. Bypass Grp., 2007 WL 1498912, at *2.

         First, “supplementation may be proper when . . . there is a record so inadequate that it prevents judicial review.” Id. at *2-3 (citing Murphy, 469 F.3d at 31). This applies in very limited circumstances. For instance, the Supreme Court has recognized that, “where there are [no formal] administrative findings that were made at the same time as the decision, . . . it may be that the only way there can be effective judicial review is by examining the decisionmakers themselves.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (citing Shaughnessy v. Accardi, 349 U.S. 280 (1955)). This applies where the administrative agency's decision cannot be discerned or justified on the record. See Camp v. Pitts, 411 U.S. 138, 142-43 (1973) (reviewing whether “there was such failure to explain administrative action as to frustrate effective judicial review”). Therefore, supplemental materials are typically unnecessary when the administrative agency's judgment is based on a substantial record. See Nw. Bypass Grp., 2007 WL 1498912, at *3 (finding an administrative record “more than sufficient to allow for judicial review” because the administrative record was “hefty, 3, 233 pages over seven volumes, with documents spanning from 1989 to 2006”). Where a substantial record is available, even if the administrative agency's explanation is “curt, ” supplemental materials are unnecessary as long as the explanation “indicate[s] the determinative reason for the final action taken.” Pitts, 411 U.S. at 143.

         The second exception to the “rule against supplementation” applies where “additional testimony by experts” will “aid to understanding highly technical, environmental matters.” Nw. Bypass Grp., 2007 WL 1498912, at *2 (quoting Valley Citizens for a Safe Env't v. Aldridge, 886 F.2d 458, 460 (1st Cir. 1989)). The Court may even allow “additional factual evidence as an aid to understanding.” Valley Citizens for a Safe Env't, 886 F.2d at 460. The necessity of such evidence “is discretionary with the reviewing court.” Id. However, it is important to note that the purpose of such evidence is “simply to help [the Court] understand matters in the agency record.” Id. Therefore, the Court still “looks first and foremost at the record before the agency.” Id.; see also Olsen v. United States, 414 F.3d 144, 155 (1st Cir. 2005) (“The focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.”) (quoting Pitts, 411 U.S. at 142); United States v. Dravo Corp., No. 8:01CV500, 2003 WL 21434761, at *3 (D. Neb. June 20, 2003) (reviewing an EPA response action and refusing to “permit supplementation of the record absent a showing that it is explanatory and not intended to invoke new material into the case”).

         In this case, given the extensive record compiled by EPA, as well as EPA's documentation of its decision-making process in the ROD, the Court does not find the record “so inadequate” as to require supplemental materials. However, the subject matter involved certainly falls under the umbrella of “highly technical, environmental matters” where the Court has discretion to consider “additional testimony by experts” and “additional factual evidence” as an aid to understanding the administrative record. Nw. Bypass Grp., 2007 WL 1498912, at *2 (quoting Valley Citizens for a Safe Env't, 886 F.2d at 460). The Court will therefore consider the expert testimony presented by both parties. With that said, in considering the expert testimony, the Court acknowledges that it must remain focused “first and foremost” on the administrative record, Valley Citizens for a Safe Env't, 886 F.2d at 460, as “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Olsen, 414 F.3d at 155 (quoting Pitts, 411 U.S. at 142).

         B. What Arguments Should the Court Consider?

         Having established what evidence is admissible in this case, the Court must determine which of Emhart's arguments the Court will consider. According to EPA, the Court should not consider any of Emhart's arguments that were not previously submitted during the official notice and comment period on the proposed remedy. Emhart, on the other hand, urges the Court to consider all of its arguments, including those made for the first time at trial.

         There is limited precedent directly addressing this issue in the context of CERCLA. Generally speaking, arguments not made before an administrative agency are waived when a court reviews the administrative agency's decision:

[w]e have recognized in more than a few decisions, and Congress has recognized in more than a few statutes, that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts.

United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 36- 37 (1952). This requirement is commonly referred to as “issue exhaustion.” Sims v. Apfel, 530 U.S. 103, 107 (2000). As the First Circuit has explained, “this rule preserves judicial economy, agency autonomy, and accuracy of result by requiring full development of issues in the administrative setting to obtain judicial review.” Pepperell Assocs. v. EPA, 246 F.3d 15, 27 (1st Cir. 2001) (citing Northern Wind, Inc. v. Daley, 200 F.3d 13, 18 (1st Cir. 1999)).

         The doctrine of issue exhaustion was adhered to relatively recently by the First Circuit in Upper Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d 9, 18 (1st Cir. 2012). That case involved a sewage company (“petitioner”) appealing a limitation imposed on it by EPA under the National Pollutant Discharge Elimination System. After notice and comment on the limitation, petitioner challenged EPA's decision in the First Circuit. Petitioner sought review of, among other things, “the limit placed on aluminum discharge, arguing that the EPA assembled and then relied upon an erroneous data set in deriving the limit.” Id. at 33. The First Circuit refused to consider that argument, however, because it had not been raised during the notice and comment period.

         The First Circuit explained that, by regulation, petitioner was required to “raise all reasonably ascertainable issues and submit all reasonably available arguments supporting their position by the close of the public comment period . . . .” Upper Blackstone, 690 F.3d at 30 (quoting 40 C.F.R. § 124.13). In light of this statutory requirement, the court found that petitioner had “waived the argument by failing to raise it during the public comment period of the permitting process. . . . By failing to give the EPA an opportunity to address the argument during the permitting process, [Upper Blackstone] has waived its claim.” Id. (citing several cases, including L.A. Tucker Truck Lines, 344 U.S. 33, and Pepperell Assocs., 246 F.3d 15).

         Emhart argues that Upper Blackstone is distinguishable from this case because, unlike the regulation at issue in Upper Blackstone, CERCLA and its implementing regulations do not contain a clear issue exhaustion provision. The Court disagrees.

         A determination of whether issue exhaustion applies to an administrative process “requires careful examination of the characteristics of the particular administrative procedure provided.” Sims, 530 U.S. at 112-13 (O'Connor, J., concurring) (quoting McCarthy v. Madigan, 503 U.S. 140, 146 (1992)). And while the regulation reviewed by the First Circuit in Upper Blackstone may have been slightly more definitive than the language in CERCLA, the Court finds that CERCLA and its implementing regulations, when taken as a whole, clearly require interested parties to present arguments to EPA before bringing those issues before a federal court.

         After identifying the “preferred” remedy, EPA is required to “present[] it to the public in a proposed plan, for review and comment.” 40 C.F.R. § 300.430(f)(1)(ii). This ensures that the public has “a reasonable opportunity to comment on the preferred alternative for remedial action, as well as alternative plans under consideration, and to participate in the selection of remedial action at a site.” Id. § 300.430(f)(2). At the completion of the notice and comment period, EPA is required to create a “responsiveness summary, ” which is “a written summary of significant comments, criticisms, and new relevant information submitted during the public comment period and the lead agency response to each issue.” Id. § 300.430(f)(3)(i)(F). The responsiveness summary is then placed in the administrative record. Id.

         Importantly though, the responsiveness summary does not address comments made outside the public comment period. See Id. § 300.825. As is mandated by CERCLA's implementing regulations, the responsiveness summary will not address comments made “after the close of the public comment period” unless the comments: (1) “contain significant information not contained elsewhere in the administrative record file”; (2) the information “could not have been submitted during the public comment period”; and (3) the information “substantially support[s] the need to significantly alter the response action.” Id. § 300.825. Therefore, unless an issue raised after the public comment period falls under this exception, that issue will not be responded to in the responsiveness summary or included in the administrative record. And it is in this context that CERCLA explicitly limits judicial review to the information contained in the administrative record. See 42 U.S.C. § 9613(j)(1)-(2).

         This statutory and regulatory scheme, when viewed as a whole, requires parties to make all of their known and available arguments regarding the merits of a remedy to EPA during the notice and comment period in the first instance. Only then, after EPA has had the opportunity to provide its response in the administrative record, may a federal court review EPA's decision. See, e.g., JG-24, Inc., 478 F.3d at 33-34 (“Under CERCLA, judicial review normally is limited to the administrative record as it existed at the time of the challenged agency action.”); Arco v. Travelers Ins. Co., 730 F.Supp. 59, 69 (W.D. Mich. 1989) (“[R]efusal to participate in this administrative process [under CERCLA] essentially allows the EPA a free-reign in dictating response methods since judicial review is limited to the administrative record.”). To allow Emhart to make arguments it could have made directly to EPA for the first time on judicial review would frustrate this administrative scheme by depriving EPA of the opportunity to address Emhart's arguments in the first instance on administrative review. Upper Blackstone, 690 F.3d at 30.

         However, while judicial review is generally limited to arguments presented during the notice and comment period, the Court also recognizes that there are some narrow exceptions to this rule. For instance, the Court of Appeals for the District of Columbia Circuit has recognized that EPA must justify “key assumptions” in its analysis, regardless of whether a party specifically objects during the notice and comment process:

EPA has a preexisting duty to examine key assumptions as part of its affirmative burden of promulgating and explaining a non-arbitrary, non-capricious rule and therefore . . . must justify that assumption even if no one objects to it during the comment period.

Oklahoma Dep't of Envtl. Quality v. EPA, 740 F.3d 185, 192 (D.C. Cir. 2014) (quoting Appalachian Power Co. v. EPA, 135 F.3d 791, 818 (D.C. Cir. 1998)).[13]

         While the First Circuit has not directly addressed this narrow exception, the Court agrees with the District of Columbia Circuit that issue waiver cannot absolve EPA of its responsibility to explain the key assumptions that underpin its remedy and that contain obvious mistakes. Therefore, while the Court will generally not consider Emhart's arguments that were not presented to EPA during the notice and comment period, the Court will consider several obvious issues relating to key assumptions that formed the basis of EPA's selected remedy.

         C. Standard of Review

         With the bounds of admissible evidence and argument established in the preceding sections, the Court turns to the applicable standard of review. The Court will uphold EPA's decision “unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law.” 42 U.S.C. § 9613(j)(2). The “law” with which EPA must comply in selecting a remedial action is primarily found in CERCLA and the NCP. EPA's decisions made within that legal framework will qualify as “arbitrary and capricious” if EPA fails to “examine the relevant data and articulate a satisfactory explanation for its action.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513-14 (2009) (quoting Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

         This is a “narrow” standard of review. Id. EPA's explanation need only be “plausible in light of the record as a whole” and “supported by substantial evidence in the record.” Leahy v. Raytheon Co., 315 F.3d 11, 17 (1st Cir. 2002) (citations omitted). Furthermore, in reviewing the evidence, the Court is not permitted “to substitute its judgment for that of the agency.” Fox Television Stations, 556 U.S. at 513-14 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)). Particularly when the Court reviews “a purely factual question within the area of competence of an administrative agency . . . and when resolution of that question depends on ‘engineering and scientific' considerations, ” the Court must “recognize the relevant agency's technical expertise and experience, and defer to its analysis unless it is without substantial basis in fact.” Browning-Ferris Indus. of S. Jersey, Inc. v. Muszynski, 899 F.2d 151, 160 (2d Cir. 1990) (quoting Federal Power Commission v. Florida Power & Light Co., 404 U.S. 453, 463 (1972)).

         While certainly deferential, the arbitrary and capricious standard is not a shibboleth by which EPA may completely avoid judicial scrutiny. As the Supreme Court has explained, an action may qualify as arbitrary and capricious where the administrative agency: (1) “relied on factors which Congress has not intended it to consider, ” (2) “entirely failed to consider an important aspect of the problem, ” (3) “offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, ” or (4) seeks to have its action upheld based on “post hoc rationalizations.” Motor Vehicle Mfrs. Ass'n of U.S., Inc., 463 U.S. at 43. Courts also review whether an administrative agency has treated similar cases with “apparent irrational discrimination.” Puerto Rico Sun Oil Co. v. EPA, 8 F.3d 73, 78 (1st Cir. 1993) (citing Green Country Mobilephone, Inc. v. FCC, 765 F.2d 235 (D.C. Cir. 1985)). Put simply, the Court must review EPA's analysis to ensure that it is “rational” and “makes sense.” Penobscot Air Servs., Ltd. v. FAA, 164 F.3d 713, 720 (1999) (quotations, citations, and brackets omitted).

         Emhart's arguments as to why EPA's actions qualify as arbitrary and capricious or otherwise not in accordance with law address several aspects of EPA's processes as well as the merits of the selected remedy itself. Each of Emhart's arguments are addressed below.

         IV. Case Specific Findings of Fact and Conclusions of Law

         A. Background

         1. Findings of Fact

         In 1996 dioxin was discovered in fish collected from the Woonasquatucket River. (See Phase I Findings 12.)[14] An EPA investigation of the surrounding area - later labeled as the Centredale Manor Restoration Project Superfund Site - ensued. The Site covers a three-mile stretch of the Woonasquatucket River, which includes a nine-acre peninsula that has been identified as the “Source Area” of the Site's hazardous substances. (Id. at 10-11.) The Source Area contains two elderly housing facilities (Brook Village and Centredale Manor) and is bounded to the north by Smith Street, to the south by Allendale Pond, to the west by the Woonasquatucket River, and to the east by the “tailrace, ” a remnant of a narrow body of water used for water power by the mills that once occupied the peninsula. (Id.)

         After passing by the Source Area, the Woonasquatucket River leads to the remainder of the Site. The river first runs into Allendale Pond, a .65-mile-long dammed pond that spans fifteen acres and has depths ranging from .5 to ten feet.[15] (ROD, US1444-12, 30.) The river next runs into Lyman Mill Pond, a .85-mile-long dammed pond spanning twenty-four acres with depths similar to Allendale Pond. (Id.) In between Allendale and Lyman Mill Ponds is the Oxbow Area, a forty-acre forested wetland habitat adjacent to the river channel. (U.S. Army Corps of Eng'rs, Oxbow Area Report, US1227-0005.) There are also various abutting residential and commercial properties throughout the Site. (Phase I Findings 10-11.)[16]

         Ultimately, EPA determined that the entire Site, not just the Source Area, was polluted by a variety of contaminants, including dioxins (2, 3, 7, 8-TCDD, in particular), volatile organic compounds, polychlorinated biphenyls, semi-volatile organic compounds, polycyclic aromatic hydrocarbons, and various metals. (Phase I Findings 11-12.) This determination led EPA to list the Site on the National Priorities List of Superfund sites in 2000. (Id.)

         The Site, in short, is complicated. It contains several types of toxic hazardous waste, and the Site's size and diversity require EPA to consider various types of flora, fauna, physical features, and human uses. As part of the cleanup effort EPA has required several removal and remedial actions. These involved the construction of three interim protective caps as well as one RCRA[17]cap over portions of the Source Area[18]; reconstruction of the Allendale Dam and restoration of Allendale Pond to prevent further downstream migration of contaminants; excavation and removal of one hundred cubic yards of soil from eleven areas along Allendale and Lyman Mill Ponds; and erection of fences along the residential properties adjacent to the Site in order to prevent access to the contamination. (ROD, US1444-15-16.) To varying degrees, Emhart has participated in each of these removal actions. (Phase I Findings n.110.)

         Additionally, EPA has pursued a “comprehensive” remedial action at the Site that will address “all current and potential future risks caused by soil, sediment, groundwater and surface water contamination.” (ROD, US1444-6.) The first step in this process (after listing the Site on the NPL) was the remedial investigation (“RI”). EPA's RI[19] utilized Site-specific data and modeling to characterize the nature and extent of contamination at the Site. (ROD, U.S. 1444-16-17.) The culmination of this process was the RI report released in 2005. (ROD, U.S. 1444-16-17; see also RI, US1098.) The RI included an assessment of the risks to human health (the Baseline Human Health Risk Assessment, or “BHHRA”)[20]and ecology (the Baseline Ecological Risk Assessment, or “BERA”)[21]posed by the Site.

         Using the information collected during the RI, EPA developed remediation goals that, if achieved, would likely mitigate the risks to human health and the environment identified in EPA's risk assessment. (Feasibility Study, US1254-73-84.) EPA conducted an extensive feasibility study (“FS”) in order to determine which remedial alternative would best achieve those targets.[22] The FS divides the Site into five “action areas, ” and provides potential remedial actions for each. (FS, US1254-10-14.) As is required by the NCP, the FS includes both an initial screening as well as a detailed analysis of the remedial alternatives for each action area. (FS, US1254-147-321.)

         Based on the analysis in the FS, EPA drafted a Proposed Remedial Action Plan (“PRAP”) in the fall of 2011. (See PRAP, U.S. 1328.) This version of the remedy did not last long though. Soon after its publication, EPA released a nationwide change to its non-cancer toxicity value for dioxin. Since dioxin is present at the Site, EPA was forced to issue a “Technical Memorandum” updating the BHHRA, cleanup levels, and FS for the Site. (See 2012 Technical Mem., US1392.) These findings required several changes to the PRAP in the form of a PRAP Amendment. (See PRAP Amendment, US1393.) While much of the PRAP went unchanged, the PRAP Amendment did require, among other things, an expanded cleanup area at the Site. These changes were published in July, 2012.

         Both the PRAP and PRAP Amendment were subject to notice and comment after their publication. The notice and comment period on the PRAP and PRAP Amendment went from November 14, 2011 to March 2, 2012, and July 19, 2012 to September 17, 2012, respectively. (ROD, US1444-24-25.) During that time EPA participated in public hearings and also accepted comments from a variety of sources, including Emhart. (See Emhart Comments on PRAP, US1383; Emhart Comments on PRAP Amendment, US1418.)

         On September 28, 2012, with the public comment period complete, EPA issued its Record of Decision (“ROD”) explaining the remedial action plan. (See ROD, US1444.) The ROD provides EPA's justification for the chosen remedial action as well as a “Responsiveness Summary” that addresses significant public comments submitted to EPA on the PRAP and PRAP Amendment. In the end, the plan outlined in the ROD was substantially similar to the plan provided for in the PRAP and PRAP Amendment.

         The remedy, as described in the ROD, contains the following basic characteristics. In the Source Area the ROD requires removal and off-Site treatment or disposal of waste material, installation of a RCRA C cap[23] over existing surfaces, and relocation of underground utilities into clean corridors. (ROD, US1444-7.) Sediment and floodplain soil in Allendale and Lyman Mill ponds will also be excavated. However, unlike in the Source Area, the majority of the excavated material in and around the ponds will be placed in a confined disposal facility (“CDF”) near the Site, leaving only a small portion of the excavated material (estimated at approximately ten percent of the total) to be shipped off-Site[24] for disposal or treatment. (Id. at 7.) A thin-layer cover will be placed over the remaining contaminated areas in the Oxbow wetland area and, if necessary, over remaining contaminated sediment in the Woonasquatucket River. (Id.) Going forward, the ROD requires continuous institutional controls that limit certain activities at the Site, such as construction and use of groundwater. (Id.) Additionally, long-term maintenance and monitoring is required, including of the CDF, damns, sediment, water, and biota located at the Site. (Id.) In total, EPA estimates that the remedial action will cost approximately $104, 600, 000. (Id. at 213.)

         Lastly, the ROD commits that EPA will collect additional information during the remedial design phase. For instance, EPA will have to determine the location of the CDF. (ROD, US1444-6.) EPA must also collect additional soil samples to determine the precise amount of excavation required. (ROD, US1444-304.) It is possible that the remedy will change based on this information.[25]However, EPA maintains that it has the capacity to adequately address such changes through, for example, an amendment to the remedial action plan or an “explanation of significant differences.”[26]

         EPA has compiled an extensive administrative record to document its remedy-selection process. The administrative record includes essentially all documents related to the development, creation, and implementation of the remedial action. The next step in EPA's process is to create a more in-depth design of the remedial action plan and implement it.[27] However, before the final design and implementation of the remedy occurred, Emhart challenged EPA's proposed remedy on several grounds.

         2. Conclusions of Law

         As a general matter, the Court finds that EPA followed the basic steps mandated by CERCLA and the NCP in developing its remedial action for the Site. These legal requirements were previously outlined by the Court. See supra Section II (“Remedy Selection”). However, Emhart argues that several of EPA's individual actions and decisions along the way were either arbitrary, capricious, or not in accordance with CERCLA or the NCP such that the remedy cannot withstand judicial scrutiny. The Court addresses each of Emhart's arguments below.

         B. Excavation and Treatment of Soil and Sediment

         1. Findings of Fact

         a. Excavation of Allendale and Lyman Mill Ponds

         EPA's remedy calls for significant excavation of the sediment in Allendale and Lyman Mill Ponds. The goal of excavation is to achieve dioxin levels of approximately fifteen parts per trillion. (FS, US1254-75.) In order to determine how much excavation will be required to meet this target, EPA took sediment samples from both Allendale and Lyman Mill Ponds. Based on these samples, EPA estimates the average excavation depth in Allendale Pond required to achieve the target dioxin level is 2.2 feet. (ROD, U.S. 1444-170.) For Lyman Mill Pond, the average excavation depth required to achieve EPA's target is 2.7 feet. (Id. at 170.) Both of these estimates assume .25 feet of over-excavation will occur. (Id.)

         The data set used by EPA to come up with these estimates included 250 data records from Allendale Pond (ranging from 0.5 to twelve feet in depth) and 160 data records from Lyman Mill Pond (ranging from 0.5 feet to four feet in depth). (ROD, US1444-303; see also RI, US1098-29; FS, Tables G-3 and G-4, US1254-1458-1477.) The data most heavily relied upon by EPA were core samples taken in 2003 and 2005, which included ten sediment cores taken from Allendale Pond and sixteen sediment cores taken from Lyman Mill Pond. (FS, US1254-363-64.) Each core includes multiple soil samples all of which were collected with the specific objective of detecting the vertical extent of contamination in the ponds. (Id. at 42, 679.) To that end, EPA conducted laboratory analysis using high resolution mass spectroscopy, a highly accurate method that can detect dioxin in parts per trillion. (Dr. Medine Test., Trial Tr. vol. 12, 13:16-14:18, ECF No. 495.)

         Emhart's expert, Mr. Loureiro, testified that these samples were inadequate because only a small portion was taken at depths greater than one foot.[28] Furthermore, Mr. Loureiro pointed out that, in certain instances, dioxin levels were detected at levels above fifteen parts per trillion at depths greater than EPA's anticipated excavation depths.[29] As such, Mr. Loureiro opined that the available data was insufficient to accurately estimate the vertical extent of the contamination and, in turn, the amount of excavation that will be necessary to achieve EPA targets.

         EPA agrees that additional sampling is needed. As EPA explained in the Feasibility Study, “[t]he proposed cleanup areas or remedial footprints are conceptual and more precise cleanup footprints will be developed during the remedial design. For example, additional coring will need to be performed at Allendale and Lyman Mill Ponds to confirm the vertical extent of the contamination.” (FS, US1254-327-28.) For this reason, EPA committed itself in the ROD to “perform[ing] additional sampling and analysis closer to the time of remediation to confirm the sediment cleanup depth and volume.” (ROD, US1444-304.)

         Given the uncertainty as to the vertical extent of the contamination, the exact amount of excavation required will likely differ from the amount estimated in the ROD. Precision in this area is likely impossible, however. As Mr. Loureiro pointed out, “certainly in my experience with excavation of all types, even a robust data set aren't adequate to actually describe the conditions you run into in the field.” (Mr. Loureiro Test., Trial Tr. vol. 6, 19:5-8.) This means that this component of the cost of the remedy is to some extent uncertain and could potentially be more expensive.

         Emhart did raise this general issue during the notice and comment period on the PRAP. (Emhart PRAP Comments US1383-8 (“EPA fails to adequately define the volume of soil and sediment requiring excavation.”); see also id. at 51.) EPA responded in the ROD's “Responsiveness Summary” by explaining that, in its opinion, sufficient data had been collected to provide excavation estimates, particularly in light of the 0.25-foot over-excavation allowance built into the estimate. (ROD, US1444-303-04.) EPA also noted that additional sampling will be done during remedial design in order to refine those estimates. (Id.) Lastly, to the extent that the proposed level of excavation does not achieve target dioxin levels, EPA suggests that “a 6-inch soil cover on the sediment bottom” could be used where “additional excavation is not feasible.” (Id.)

         b. Excavation of the Oxbow Area and the Floodplain Soil of Allendale and Lyman Mill Ponds

         In February 2012, after publication of the PRAP, EPA established a nation-wide non-cancer toxicity value for dioxin. This new information forced EPA to reevaluate its remedial design for the Site. EPA did so by issuing a Technical Memorandum on the Impact of Dioxin Reassessment that updated EPA's human health risk assessment and feasibility study. (2012 Technical Memorandum, US1392.) The analysis of each remedial action alternative did not change significantly. (See ROD, US1444-347 (“Impacts resulting from these changed conditions are presented in EPA's May 2012 Technical Memorandum and are generally consistent with evaluations presented in . . . the FS.”).)

         However, EPA did determine that certain areas, not previously identified in the PRAP, would require excavation. These areas were primarily located in the Oxbow Area and floodplain soil around Allendale and Lyman Mill Ponds. (See PRAP Amendment, US1393-002.) EPA's expanded excavation plan was documented in the PRAP Amendment and later adopted in the ROD. (PRAP Amendment, US1393-7-9; ROD, US1444-176-192.) Emhart submitted comments on the PRAP Amendment in which it argued that EPA had not collected sufficient Site-specific data in order to adequately characterize contamination at the Site. (See Emhart Comments on PRAP Amendment, US1418-7-9.)[30]

         With regards to the floodplain soils, EPA determined which areas would require excavation using two types of Site-specific data: soil samples and FEMA floodplain maps. The soil samples were collected during the remedial investigation on the eastern shore floodplains[31] of the Allendale and Lyman Mill Pond reaches. EPA collected 226 samples in total, 212 of which detected some level of dioxin. (ROD, US1444-345.) Of those 212 samples detecting dioxin, “there are approximately 100 sampling locations where floodplain residential-use soil samples have [dioxin] concentrations greater than cleanup levels.” (Id.; see also 2012 Technical ...

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