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

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
EMHART INDUSTRIES, INC., 	)
)
Plaintiff and Counterclaim 	)
Defendant, 	)
)
v. 	) 	C.A. No. 06-218 S
)
NEW ENGLAND CONTAINER COMPANY, 	)
INC; et al., 	)
)
Defendants and Counterclaim )
Plaintiffs. 	)
___________________________________)
)
EMHART INDUSTRIES, INC., 	)
)
Plaintiff and Counterclaim 	)
Defendant, 	)
)
v. 	) 	C.A. No. 11-023 S
)
UNITED STATES DEPARTMENT OF THE 	)
AIR FORCE; et al., 	)
)
Defendants, Counterclaim 	)
Plaintiffs, and Third-Party )
Plaintiffs, 	)
)
v. 	)
)
BLACK & DECKER, INC.; et al., 	)
)
Third-Party Defendants. 	)
___________________________________)
PHASE II FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Introduction
Dioxin 	and 	other 	toxic 	chemical 	pollution 	at 	the 	Centredale
Manor 	Restoration 	Project 	Superfund 	Site 	(“Centredale 	Site” 	or
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“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 	trial2 	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
1 	The 	present 	case 	was 	also 	preceded 	by 	other 	insurance
coverage 	litigation. 	The 	Centredale 	Site 	is 	truly 	a 	litigation
gift that keeps on giving.
2 	The 	Court 	received 	evidence 	over 	the 	course 	of 	thirteen
days, concluding on January 19, 2017. (See Trial Trs. vols. 1-13,
ECF 	Nos. 	448-57, 	494-96.) 	This 	included 	thousands 	of 	pages 	of
exhibits 	from 	both 	the 	United 	States 	(Bates 	numbered 	“US__”) 	and
Emhart 	(Bates 	numbered 	“Emhart__”). 	The 	parties 	supplied 	post-
trial 	briefs 	thereafter. 	(See 	Emhart 	Post-Trial 	Brief, 	ECF 	No.
461; Gov’t Post-Trial Brief, ECF No. 466; Emhart Post-Trial Reply
Brief, ECF No. 497.) Lastly, the Court heard oral argument on April
4, 2017. (See Trial Tr. vol. 14, ECF No. 534.)
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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.)
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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
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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
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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
3 (See, e.g., Ms. Taylor Test., Trial Tr. vol. 2, 5:3–9, ECF
No. 	449 	(acknowledging 	that 	EPA 	guidance 	represents 	“the
collective information and practices developed by EPA through its
experience in implementing remedies”).)
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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
4 	While 	the 	RI 	and 	FS 	are 	labeled 	as 	separate 	steps 	in 	the
CERCLA 	process, 	the 	RI 	does 	not 	end 	when 	the 	FS 	begins. 	Instead,
“the 	RI 	and 	FS 	are 	interactive 	processes 	that 	are 	conducted
concurrently,” 	such 	that 	“field 	investigation 	activities 	will 	be
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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
laws5 	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
ongoing 	during 	the 	development 	and 	screening 	of 	remedial 	action
alternatives.” 	EPA, 	The 	Remedial 	Investigation: 	Site
Characterization and Treatability Studies, Emhart509-1; see also,
40 	C.F.R. 	§ 	300.430(e)(1) 	(“Development 	of 	alternatives 	shall 	be
fully integrated with the site characterization activities of the
remedial 	investigation.”); 	id. 	§ 	300.430(e)(1) 	(“Preliminary
remediation 	goals 	should 	be 	modified, 	as 	necessary, 	as 	more
information becomes available during the RI/FS.”)
5 These are referred to in CERCLA as Applicable and Relevant
and 	Appropriate 	Requirements 	(“ARARs”). 	40 	C.F.R.
§ 300.505(d)(2)(iii).
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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.
6 See id.
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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,
7 	While 	compliance 	with 	ARARs 	is 	one 	of 	the 	“threshold
criteria,” 	there 	are 	limited 	circumstances 	where 	a 	chosen 	remedy
need not meet those standards. See id. § 300.430(f)(1)(ii)(C).
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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
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remedy8; 	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
8 See, e.g., 42 U.S.C. § 9604(j); id. § 9621(e)(1); 40 C.F.R.
§ 300.400(d).
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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
9 	EPA 	must 	provide 	documentation 	in 	the 	record 	of 	decision
where 	the 	final 	remedy 	“significantly 	differs 	from 	the 	original
proposal.” 	Id. 	§ 	300.430(f)(3)(ii). 	If 	the 	change 	is 	so 	drastic
that it could not have been “reasonably anticipated by the public”
based 	on 	the 	information 	in 	the 	proposed 	plan 	and 	administrative
record, 	then 	EPA 	must 	allow 	for 	an 	additional 	notice 	and 	comment
period 	on 	the 	revised 	plan. 	Id. 	§ 	300.430(f)(3)(ii)(B). 	If 	the
changes to the plan could have been “reasonably anticipated,” then
EPA need only “[i]nclude a discussion in the record of decision of
the 	significant 	changes 	and 	reasons 	for 	such 	changes.” 	Id.
§ 300.430(f)(3)(ii)(A).
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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).
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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
10 See infra note 11.
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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
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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
11 	If, 	after 	additional 	data 	collection 	or 	during
construction, EPA determines that the final design will “differ[]
significantly from the remedy selected in the ROD with respect to
scope, 	performance, 	or 	cost,” 	EPA 	must 	provide 	the 	public 	notice
of 	this 	change. 	40 	C.F.R. 	§ 	300.435(c)(2). 	Where 	the 	differences
“significantly 	change 	but 	do 	not 	fundamentally 	alter 	the 	remedy
selected in the ROD,” the lead agency will publish an “explanation
of 	significant 	differences.” 	Id. 	§ 	300.435(c)(2)(i).
Alternatively, if EPA does “fundamentally alter” the final remedy
in its final design, EPA must amend the ROD and provide for another
period of notice and comment. Id. § 300.435(c)(2)(ii).
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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
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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.”
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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
12 	The 	administrative 	record 	is 	typically 	closed 	once 	the
decision document has been signed, except in the following narrow
circumstances:
(a) 	The 	lead 	agency 	may 	add 	documents 	to 	the
administrative 	record 	file 	after 	the 	decision 	document
selecting 	the 	response 	action 	has 	been 	signed 	if: 	(1)
The 	documents 	concern 	a 	portion 	of 	a 	response 	action
decision that the decision document does not address or
reserves 	to 	be 	decided 	at 	a 	later 	date; 	or 	(2) 	An
explanation 	of 	significant 	differences 	required 	by 	§
300.435(c), 	or 	an 	amended 	decision 	document 	is 	issued,
in 	which 	case, 	the 	explanation 	of 	significant
differences 	or 	amended 	decision 	document 	and 	all
documents that form the basis for the decision to modify
the response action shall be added to the administrative
record file.
40 C.F.R. § 300.825.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
13 	Other 	Circuit 	Courts 	of 	Appeals 	have 	recognized 	similar
exceptions 	for 	cases 	in 	which 	the 	allegedly 	waived 	issue 	should
have been obvious to the reviewing agency. See, e.g., Sierra Club,
Inc. 	v. 	Bostick, 	787 	F.3d 	1043, 	1048 	(10th 	Cir. 	2015) 	(holding
that 	an 	issue 	not 	presented 	during 	the 	notice 	and 	comment 	period
is not waived where that issue was “obvious”); Portland Gen. Elec.
Co. v. Bonneville Power Admin., 501 F.3d 1009, 1024 (9th Cir. 2007)
(“In general, we will not invoke the waiver rule in our review of
a notice-and-comment proceeding if an agency has had an opportunity
to consider the issue.”).
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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
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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
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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
14 	This and various other findings of fact are taken directly
from the Court’s Phase I Findings.
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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
15 Unless specified otherwise, the lengths, sizes, and depths
discussed by the Court are approximated.
16 The ROD contains a map of the Site. (ROD, US1444-0012.)
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several 	removal 	and 	remedial 	actions. 	These 	involved 	the
construction of three interim protective caps as well as one RCRA17
cap 	over 	portions 	of 	the 	Source 	Area18; 	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
17 RCRA stands for the “Resource Conservation & Recovery Act.”
See 	42 	U.S.C. 	§§ 	6901 	et 	seq. 	“Congress 	enacted 	RCRA, 	a
comprehensive 	environmental 	statute 	that 	governs 	the 	treatment,
storage, and disposal of solid and hazardous waste, based . . . on
its 	finding 	that 	waste 	disposal 	had 	become 	a 	national 	problem
requiring 	federal 	involvement.” 	AES 	Puerto 	Rico, 	LP 	v. 	Trujillo-
Panisse, 	857 	F.3d 	101, 	103 	(1st 	Cir. 	2017) 	(quotations 	and
citations omitted). RCRA governs the disposal of “hazardous waste”
under subtitle C. Id. (citing 42 U.S.C. §§ 6921-6939g).
18 The ROD contains a map of the work done on the Source Area.
(ROD, US1444-13.)
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investigation 	(“RI”). 	EPA’s 	RI19 	utilized 	Site-specific 	data 	and
modeling to characterize the nature and extent of contamination at
the 	Site. 	(ROD, 	US 	1444-16-17.) 	The 	culmination 	of 	this 	process
was the RI report released in 2005. (ROD, US 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
19 	The 	RI 	actually 	included 	a 	series 	of 	individual
investigations conducted between 1999 and 2004. (See ROD, US 1444-
16-17.)
20 	The BHHRA is comprised of several individual assessments,
including: 	(1) 	2005 	BHHRA 	(US1101-1103); 	(2) 	2011 	Supplemental
BHHRA 	& 	BERA 	(US1287); 	and 	(3) 	May 	2012 	Technical 	Memorandum 	on
Impact 	of 	Dioxin 	Reassessment 	(“2012 	Technical 	Memorandum”)
(US1392).
21 	The 	BERA 	is 	comprised 	of 	the 	2004 	BERA 	(US1040-1044) 	and
the 2011 Supplemental BHHRA & BERA (US1287).
22 	In 	total, 	the 	FS 	consisted 	of 	329 	pages 	of 	analysis
exclusive 	of 	references 	and 	appendices. 	Additionally, 	EPA 	issued
an 	FS 	Addendum 	in 	September 	2011 	in 	order 	to 	incorporate
information 	brought 	to 	EPA’s 	attention 	after 	publication 	of 	the
FS. (See FS Addendum, US1311.)
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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, 	US
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,
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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 	cap23 	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-Site24
23 See supra note 17.
24 	EPA 	requires 	off-Site 	disposal 	or 	treatment 	only 	for
particularly 	toxic 	materials 	that 	exceed 	EPA’s 	treatment
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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
standards. Materials that do not exceed EPA’s treatment standards
may be disposed in a CDF.
25 	One 	example 	of this 	has 	already 	occurred 	since the 	ROD’s
publication. 	Several 	third 	party 	defendants 	collected 	additional
information 	on 	the 	Source 	Area 	that 	led 	EPA 	to 	conclude 	that 	it
“no longer expects that the removal of waste material and off-site
treatment or disposal will be necessary in the Source Area.” (Gov’t
Post-Trial 	Brief 	n.137 	(citing 	Revised 	Draft 	Pre-Design
Investigation Final Report, US1459).)
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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.
26 See supra note 9.
27 The NCP labels this as the “remedial design/remedial action
(RD/RA) stage.” 40 C.F.R § 300.435(a).
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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, 	US 	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
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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
28 Mr. Loureiro testified that he evaluated the data and found
only 	forty 	samples 	from 	Allendale 	Pond 	and 	eighteen 	samples 	from
Lyman 	Mill 	Pond 	at 	depths 	below 	one 	foot. 	(Mr. 	Loureiro 	Test.,
Trial Tr. vol. 6, 105:7-9, 113:23-117:1, ECF No. 453.)
29 	Because 	EPA’s 	anticipated 	excavation 	depth 	is 	an 	average,
Emhart 	is 	able 	to 	point 	to 	samples 	where 	dioxin 	is 	still 	above
fifteen parts per trillion past the average excavation depth, and
EPA is able to point to samples where dioxin is less than fifteen
parts 	per 	trillion 	even 	before 	reaching 	the 	average 	excavation
depth.
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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
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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.)
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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
floodplains31 	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 	Mem., 	US1392-24.) 	Based 	on 	this 	data 	EPA 	expanded 	the
30 A review of those comments reveals that Emhart provided no
specifics 	for 	what 	level 	of 	sampling 	it 	believed 	was 	necessary
going forward or where that sampling needed to occur. Emhart simply
asserted that additional sampling is required.
31 	EPA 	defined 	“floodplain 	areas” 	as 	“the 	area 	of 	water 	and
land inundated during the highest point of the base, or 100-year,
flood using maps prepared by the Federal Insurance Administration
of the Federal Emergency Management Agency . . . .” (ROD, US1444-
306.)
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area 	requiring 	excavation 	and 	estimated 	an 	average 	excavation
depth of one foot. (See 2012 Technical Mem., US1392-62.)32
Having established that unsafe levels of dioxin had migrated
into floodplain soils, EPA then used Federal Emergency Management
Agency 	(“FEMA”) 	floodplain 	maps 	to 	determine 	other 	areas 	that
likely contain similar dioxin levels. FEMA floodplain maps cannot
substitute for field samples in determining the precise nature or
extent 	of 	dioxin 	contamination 	in 	a 	given 	area. 	(Mr. 	Loureiro
Test., Trial Tr. vol. 5, 183:23-184:11, ECF No. 452.) However, as
Dr. 	Medine 	explained, 	such 	maps 	are 	commonly 	used 	“to 	aid 	in
designing sampling programs to characterize the nature and extent
of 	floodplain 	contamination” 	because 	they 	can 	act 	as 	“a 	guide 	to
where 	to 	look 	for 	contamination 	and 	serve 	as 	indicator 	of 	where
contamination may have come to rest.” (Dr. Medine Test., Trial Tr.
vol. 12, 81:13-15, 21-22, ECF No. 495.)
As 	for 	the 	Oxbow 	Area, 	EPA 	relied 	primarily 	on 	two 	Site-
specific 	data 	sets 	in 	order 	to 	estimate 	the 	amount 	of 	required
excavation. 	The 	first 	was 	a 	data 	set 	collected 	by 	EPA 	during 	the
remedial 	investigation. 	(FS, 	US1254-188.) 	The 	second 	was 	a 	data
set 	collected 	by 	Emhart 	as 	part 	of 	its 	2010 	Oxbow 	Area
32 EPA’s limited subsurface data suggests that excavation will
be limited to one foot in most areas, though some areas will also
likely 	require 	deeper 	excavation. 	(2012 	Technical 	Mem., 	US1392-
24.) 	The 	ROD 	explains 	that, 	generally 	speaking, 	excavation 	below
surface 	soils 	is 	unlikely 	because 	“dioxins 	do 	not 	migrate 	easily
through the soil column.” (ROD, US1444-346.)
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Investigation. 	(ROD, 	US1444-318.) 	That 	investigation 	collected
forty-four 	floodplain 	soil 	samples 	and 	twenty-eight 	sediment
samples 	at 	depths 	ranging 	from 	zero 	to 	thirty-six 	inches. 	(ROD,
US1444-36.) After EPA came out with its toxicity value for dioxin,
EPA 	utilized 	both 	data 	sets 	in 	the 	FS 	Addendum. 	The 	FS 	Addendum
determined that 5,600 cubic yards of material needs to be excavated
in 	addition 	to 	the 	areas 	identified 	in 	the 	PRAP. 	(See 	PRAP
Amendment, US 1393-7, 10.)
For 	both 	the 	Oxbow 	Area 	and 	the 	floodplain 	soils 	the 	ROD
requires 	that 	EPA 	collect 	additional 	information 	during 	the
remedial 	design 	phase 	to 	delineate 	the 	exact 	counters 	and 	depths
of excavation. (See, e.g., ROD, US1444-176, 346.) This information
will 	consist 	primarily 	of 	additional 	soil 	samples. 	(Id. 	at 	176,
181-83.) Once excavation is complete, “confirmation sampling will
be conducted to verify that the cleanup levels are achieved . . .
.” (Id. at 177; see also id. at 183.)
c. Amount of Soil Requiring Incineration
Once 	contaminated 	soil 	and 	sediment 	are 	excavated, 	the 	ROD
calls for those materials to be either stored in a CDF or shipped
off-Site for treatment (i.e., incineration). (ROD, US1444-172-73.)
Whether 	treatment 	is 	required 	depends 	on 	the 	toxicity 	of 	the
material. Material that contains dioxin at or above ten parts per
billion 	must 	be 	treated; 	material 	that 	contains 	dioxin 	below 	ten
parts per billion can be stored in a CDF. (Id. at 172.)
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At 	the 	Site, 	EPA 	estimates 	that 	ninety 	percent 	of 	the
excavated soils can be disposed of in a CDF while ten percent will
need 	to 	be 	shipped 	off-Site 	for 	treatment. 	(ROD, 	US1444-172.) 	As
with EPA’s excavation estimates, certainty in this area is likely
impossible. (See, e.g., Mr. Loureiro Test., Trial Tr. vol. 6, 19:5-
8.) 	Emhart’s 	2010 	Oxbow 	Area 	Investigation 	exemplifies 	this
uncertainty. EPA initially estimated that no Oxbow Area floodplain
soil 	would 	require 	incineration. 	(ROD, 	US1444-318; 	FS 	Addendum,
US1311-27.) 	However, 	after 	more 	extensive 	sampling 	was 	conducted
in the 2010 Oxbow Area Investigation, EPA changed its opinion and
now estimates that up to ten percent of the Oxbow Area floodplain
soil may require treatment. (ROD, US1444-318; FS Addendum, US1311-
27.) As this example demonstrates, additional sampling can reveal
that 	more 	material 	requires 	treatment 	than 	initially 	estimated
thereby increasing the cost of the overall remedy.
However, 	uncertainty 	does 	not 	necessarily 	mean 	that 	the
ultimate 	remedy 	will 	involve 	additional 	treatment 	or 	increased
cost compared to the estimates in the ROD. The Source Area provides
an 	example 	where 	the 	amount 	of 	material 	requiring 	treatment
decreased as a result of additional sampling. At the time the ROD
was 	published, 	EPA 	“assumed 	that 	all 	of 	the 	excavated 	potential
buried 	waste 	material 	[in 	the 	Source 	Area] 	would 	be 	taken 	to 	an
off-site 	incinerator 	for 	treatment.” 	(ROD, 	US1444-164; 	see 	also
id. at 214.) However, the ROD also called for additional sampling
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“to 	determine 	off-site 	treatment 	requirements.” 	(Id. 	at 	164.)
After 	publication 	of 	the 	ROD, 	several 	third-party 	defendants
collected 	additional 	information 	on 	the 	Source 	Area 	that 	led 	EPA
to 	conclude 	that 	it 	no 	longer 	anticipates 	that 	the 	Source 	Area
material will require off-Site treatment. (See Revised Draft Pre-
Design Investigation Final Report, US1459.)
The lack of certainty in the ROD as to the amount of material
requiring treatment was addressed by Emhart during the notice and
comment 	period 	on 	the 	PRAP. 	As 	Emhart 	explained, 	“EPA’s 	estimate
that only 10% of the soil and sediment will exceed the alternative
treatment standards for soil is based on limited data. . . . [I]t
appears possible that a much higher percentage of soil and sediment
will 	contain 	dioxin 	at 	concentrations 	above 	the 	standard,
therefore 	requiring 	off-Site 	disposal.” 	(Emhart 	PRAP 	Comments,
US1383-71.)
EPA responded to Emhart’s comment in the ROD’s Responsiveness
Summary. 	EPA 	explained 	that 	its 	estimates 	were 	based 	on
approximately 	400 	sediment 	samples 	from 	Allendale 	and 	Lyman 	Mill
Ponds 	and 	250 	floodplain 	soil 	samples 	(not 	including 	Source 	Area
soil). 	(ROD, 	US1444-318.) 	Dr. 	Medine 	also 	described 	how 	those
samples 	were 	used 	in 	combination 	with 	a 	contouring 	analysis 	in
order to estimate the volume of material requiring treatment. (See
Dr. Medine Test., Trial Tr. vol. 12, 28:23-29:13; FS, US1254-1478-
79.) 	As 	discussed 	above, 	EPA 	has 	committed 	to 	refining 	these
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estimates 	through 	further 	sampling 	and 	analysis 	during 	remedial
design.
2. Conclusions of Law
Emhart 	argues 	that 	EPA 	failed 	to 	collect 	sufficient 	Site-
specific 	data 	to 	conduct 	a 	feasibility 	study 	in 	accordance 	with
the 	NCP. 	Specifically, 	Emhart 	argues 	that 	EPA 	did 	not 	collect
enough 	Site-specific 	data 	to 	accurately 	estimate 	the 	amount 	of
material 	that 	will 	have 	to 	be 	excavated 	or 	shipped 	off-Site 	for
treatment. 	Emhart’s 	comments 	on 	the 	PRAP 	and 	PRAP 	Amendment 	did
not provide any specifics as to the number of samples it believes
need 	to 	be 	collected 	from 	the 	Site 	in 	order 	to 	conduct 	a
feasibility 	study 	under 	the 	NCP. 	However, 	Emhart 	did 	raise 	this
issue 	as 	a 	general 	matter 	by 	discussing 	the 	need 	“to 	adequately
define 	the 	volume 	of 	soil 	and 	sediment 	requiring 	excavation” 	or
“off-Site disposal” (Emhart PRAP Comments, US1383-8, 71), and EPA
had 	the 	opportunity 	to 	respond. 	(See, 	e.g. 	ROD, 	US1444-303-04,
318.) 	Under 	these 	circumstances 	the 	Court 	finds 	that 	Emhart
adequately preserved this issue.
As 	to 	the 	merits 	of 	Emhart’s 	arguments, 	both 	Emhart 	and 	EPA
agree that additional sampling is needed in order to characterize
the 	lateral 	and 	vertical 	extent 	of 	contamination 	at 	the 	Site 	and
obtain 	a 	more 	accurate 	excavation 	and 	incineration 	volume
estimate. The disagreement is about the timing of that additional
data 	collection. 	Emhart 	argues 	that 	such 	data 	should 	have 	been
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collected 	for 	use 	in 	the 	feasibility 	study. 	EPA 	contends 	that 	it
collected sufficient data to conduct a feasibility study and that
the 	necessary 	additional 	sampling 	can 	be 	done 	during 	remedial
design.
While 	the 	NCP 	requires 	that 	EPA 	conduct 	a 	remedial
investigation 	and 	feasibility 	study 	that 	includes 	the 	collection
of 	site-specific 	data, 	it 	does 	not 	require 	a 	specific 	number 	of
samples or data points. Instead, EPA must collect sufficient data
“to adequately characterize the site for the purpose of developing
and 	evaluating 	effective 	remedial 	alternatives.” 	40 	C.F.R.
§ 300.430(d)(1); 	see 	also 	id. 	§ 	300.430(a)(2) 	(requiring 	EPA 	to
“assess site conditions . . . to the extent necessary to select a
remedy”). One of the factors that EPA must be able to “adequately
characterize” 	is 	the 	cost 	of 	the 	remedy. 	Id. 	§ 	300.430(e)(7)(ii)
(cost 	is 	an 	initial 	screening 	factor); 	see 	also 	id.
§ 300.430(e)(9)(iii)(G) (cost as one of nine factors to be balanced
during remedy selection).
Beyond 	these 	general 	guidelines, 	EPA 	is 	given 	significant
leeway 	to 	develop 	a 	remedial 	investigation 	and 	feasibility 	study
process 	specific 	to 	a 	site. 	This 	leeway 	includes 	the 	option 	of
reserving a certain amount of data collection for remedial design.
The 	NCP 	specifically 	allows 	the 	ROD 	to 	reserve 	certain 	decisions
for 	a 	later 	date 	and, 	“[w]hen 	appropriate, 	provide 	a 	commitment
for 	further 	analysis 	. 	. 	. 	.” 	Id. 	§ 	300.430(f)(5)(iii)(D).
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Therefore, 	while 	the 	information 	contained 	in 	the 	feasibility
study provides the “initial building block in developing” the final
design, 	EPA 	guidance 	also 	envisions 	that 	additional 	“data
acquisition” 	and 	“sample 	analysis” 	may 	be 	necessary 	during 	the
remedial 	design 	phase. 	EPA, 	Scoping 	the 	Remedial 	Design,
Emhart516-1-2.
There 	is 	no 	doubt 	that 	the 	amount 	of 	soil 	that 	must 	be
excavated 	or 	shipped 	off-Site 	for 	incineration 	will 	affect 	the
cost 	of 	the 	remedy. 	The 	question 	before 	the 	Court 	is 	whether 	EPA
collected 	sufficient 	data 	to 	“to 	adequately 	characterize” 	the
remedial alternatives, including their estimated costs, such that
those 	alternatives 	could 	be 	effectively 	compared 	during 	the
feasibility study. The Court finds that EPA has met that standard.
As 	described 	in 	the 	findings 	of 	fact, 	EPA 	analyzed 	multiple
data sets that include hundreds of soil and sediment samples from
across 	the 	Site. 	In 	examining 	these 	samples 	EPA 	used 	high
resolution 	mass 	spectroscopy 	to 	detect 	dioxin 	levels 	down 	to 	the
parts 	per 	trillion. 	The 	results 	of 	this 	sample 	analysis 	were
reviewed 	in 	conjunction 	with 	other 	types 	of 	information, 	such 	as
FEMA 	floodplain 	maps 	and 	contouring 	analysis, 	to 	further 	refine
EPA’s 	estimates. 	It 	is 	true 	that 	in 	none 	of 	the 	Site 	areas
discussed 	in 	this 	section 	– 	Allendale 	and 	Lyman 	Mill 	Ponds, 	the
floodplain soils, or the Oxbow Area – has EPA collected sufficient
data to fully implement the remedy. As EPA recognizes, additional
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sampling and analysis will be required during remedial design. But
this 	sort 	of 	commitment 	to 	further 	analysis 	is 	permitted 	by 	the
NCP and EPA guidance. At this point in the remediation process EPA
is only required to have collected sufficient data to “adequately
characterize” the estimated excavation and treatment volumes such
that remedial alternatives can be compared in a feasibility study,
which EPA has done.
While 	the 	Court 	finds 	that 	the 	current 	state 	of 	EPA’s
excavation and treatment estimates does not violate the NCP, this
finding 	is 	based, 	in 	part, 	on 	EPA’s 	commitment 	to 	conduct
additional 	sampling 	and 	analysis 	during 	remedial 	design. 	If
information uncovered during remedial design reveals that the cost
will 	differ 	significantly 	from 	the 	cost 	outlined 	in 	the 	ROD, 	EPA
has 	the 	responsibility 	to 	update 	the 	administrative 	record 	as
necessary. 	This 	could 	potentially 	require 	an 	“explanation 	of
significant 	differences,” 	a 	ROD 	amendment, 	or 	even 	an 	updated
feasibility study. EPA has shown a willingness to take these sorts
of 	actions 	in 	the 	past. 	(See, 	e.g., 	FS 	Addendum, 	US1311; 	PRAP
Amendment, 	US1328.) 	And 	while 	CERCLA 	and 	the 	NCP 	leave 	it 	up 	to
EPA 	to 	determine 	whether 	such 	actions 	are 	necessary 	in 	the 	first
instance, 	the 	Court 	retains 	jurisdiction 	over 	this 	matter 	in 	the
event 	that 	Emhart, 	in 	light 	of 	new 	evidence, 	seeks 	to 	challenge
EPA’s decision.
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C. Location of the Confined Disposal Facility
1. Findings of Fact
The ROD calls for the majority of excavated soil to be placed
in 	a 	CDF. 	(ROD, 	US1444-167.) 	EPA 	initially 	identified 	three
locations 	at 	the 	Site 	that 	could 	potentially 	accommodate 	a 	CDF.
(PRAP Amendment, US1328-21; see also FS, US1254-389.) However, as
Emhart 	noted 	in 	its 	comments 	on 	the 	PRAP, 	EPA 	did 	not 	establish
the 	final 	location 	of 	the 	CDF. 	(Emhart 	Comments 	on 	PRAP, 	US1383-
65.) 	In 	addition, 	the 	Town 	of 	Johnston 	has 	made 	it 	clear 	that 	it
does not want a CDF placed at or near the Site.33
Despite 	these 	concerns, 	the 	ROD 	states 	that 	a 	CDF 	will 	be
part of the final remedy. The ROD explains that EPA “continues to
believe 	the 	upland 	CDF 	disposal 	option 	is 	the 	best 	approach 	to
address contaminated sediment/soil.” (ROD, US144-172.) As for the
exact 	location, 	the 	CDF 	could 	still 	be 	located 	on-Site. 	However,
given 	the 	lack 	of 	community 	acceptance 	for 	this 	option, 	EPA 	has
also 	“expanded 	the 	area 	where 	an 	upland 	CDF 	could 	be 	located 	to
locations outside the Town of Johnston and beyond what is in very
close proximity to the Site.” (Id. at 172.) The ROD further commits
33 The Town was initially supportive of the CDF being located
in Johnston. (See, e.g., PRAP Hearing at Centredale Manor, US1333-
30.) 	The 	Town 	has 	since 	sent 	a 	letter 	to 	EPA 	explaining 	that 	it
“is 	no 	longer 	supportive 	of 	consideration 	of 	any 	upland 	disposal
of 	contaminated 	material 	associated 	with 	the 	Centredale 	Manor
Superfund 	Site.” 	(Letter 	from 	Town 	of 	Johnston 	to 	EPA 	dated
12/29/2011, US1344-1.)
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EPA “to identify additional locations where an upland CDF could be
located” as part of remedial design. (Id. at 172.)
EPA 	has 	already 	begun 	this 	process. 	(See 	Technical 	Mem. 	for
Assessment 	of 	CDF, 	US1475.) 	However, 	to 	date, 	EPA 	has 	not
identified 	a 	location 	for 	the 	CDF. 	Whether 	EPA 	will 	be 	able 	to
identify 	a 	location 	in 	close 	proximity 	to 	the 	Site 	that 	is
acceptable 	to 	the 	local 	community 	is 	unclear. 	If 	a 	CDF 	is 	not
utilized as part of the remedy the cost of the remedy will likely
rise 	significantly. 	Given 	the 	local 	community’s 	resistance 	to 	a
CDF and the likely cost increase that would result if a CDF is not
built, 	Emhart’s 	expert, 	Mr. 	Loureiro, 	provided 	his 	opinion 	that
“there 	should 	be 	a 	defined 	location 	for 	the 	CDF, 	whether 	it’s
purchased or under contract or part of the site itself” before the
remedy is selected. (Mr. Loureiro Test., Trial Tr. vol. 10, 10:8-
10.) 	Having 	a 	“defined 	location,” 	according 	to 	Mr. 	Loureiro, 	is
the only way to ensure that the proposed remedy is “feasible” and
therefore a “viable alternative.” (Id. at 10:11-12.) EPA disagrees
and “believes a location can be identified [during remedial design]
that addresses most or all of the concerns raised by the public.”
(ROD, US1444-172.)
2. Conclusions of Law
Emhart contends that the CDF discussed in the ROD “does not,
and 	will 	never, 	exist.” 	(Emhart 	Post-Trial 	Brief 	175.) 	It 	argues
that EPA’s failure to identify a “defined location” for the CDF in
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the ROD violates the NCP. (Id. at 175; see also Mr. Loureiro Test.,
Trial 	Tr. 	vol. 	10, 	10:8-13.) 	EPA 	disagrees 	and 	argues 	that 	the
location of a CDF can be determined during remedial design. Emhart
preserved this issue in its comments on the PRAP. (Emhart Comments
on PRAP, US1383-65.)
The Court finds that EPA’s decision to determine the location
of the CDF during remedial design does not constitute a violation
of the NCP. There are two problems with Emhart’s argument. First,
Emhart’s 	claim 	that 	the 	CDF 	can 	“never” 	exist 	is 	premised 	on 	the
idea 	that 	the 	Town 	of 	Johnston 	has 	the 	authority 	to 	prohibit 	EPA
from 	constructing 	a 	CDF 	at 	the 	Site. 	But 	this 	is 	not 	the 	case.
See, 	e.g., 	42 	U.S.C. 	§ 	9604(j); 	id. 	§ 	9621(e)(1); 	40 	C.F.R.
§ 300.400(d). 	And 	while 	the 	Town 	of 	Johnston 	has 	made 	clear 	that
it does not wish to provide a space for a CDF, community acceptance
is only one of nine factors that EPA must consider. See 40 C.F.R.
§ 	300.430(e)(9)(iii)(A)-(I). 	Therefore, 	it 	is 	possible 	that 	EPA
could determine, in its final analysis, that other factors outweigh
a lack of community acceptance and override the Town of Johnston.
Second, there is no provision of the NCP requiring the ROD to
provide 	a 	“defined 	location” 	for 	a 	CDF. 	Nor 	is 	there 	any
requirement 	that 	the 	land 	on 	which 	a 	CDF 	will 	be 	located 	must 	be
either purchased or under contract before publication of the ROD.
Instead, 	EPA 	need 	only 	collect 	sufficient 	information 	to
effectively 	compare 	remedial 	alternatives. 	EPA 	has 	expressed 	its
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judgment 	that 	it 	will 	be 	able 	to 	find 	a 	suitable 	location 	for 	a
CDF 	during 	remedial 	design 	and 	compared 	remedial 	alternatives
accordingly. (ROD, US1444-172.) This does not violate the NCP.
Of 	course, 	as 	discussed 	in 	the 	preceding 	section, 	EPA 	is
required to document all significant changes made during remedial
design. 	Therefore, 	if 	EPA 	ultimately 	does 	not 	select 	a 	location
for 	the 	CDF 	in 	accordance 	with 	the 	cost 	estimate 	and 	description
in 	the 	ROD, 	EPA 	must 	document 	that 	fact 	in 	accordance 	with 	the
NCP. This could potentially require additional analysis by EPA of
remedial 	alternatives 	and 	possible 	challenges. 	At 	this 	point
though, before EPA has completed its remedial design, the lack of
a defined location for the CDF does not constitute a violation of
the NCP.
D. Dewatering Sediment, Controlling Ground and Surface Water,
and Constructing Haul Roads
1. Findings of Fact
The 	ROD 	calls 	for 	significant 	excavation 	of 	contaminated
sediment 	at 	the 	Site. 	This 	will 	require 	some 	level 	of 	ground 	and
surface 	water 	controls 	in 	order 	to 	access 	the 	contaminated
sediment, the construction of haul roads to move the sediment after
excavation, 	and 	the 	creation 	of 	a 	dewatering 	facility 	to 	remove
the 	water 	from 	the 	sediment. 	At 	trial 	Emhart’s 	expert, 	Mr.
Loureiro, 	opined 	that 	these 	activities 	will 	require 	funding 	that
is not provided for in EPA’s cost estimate.
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For 	instance, 	Mr. 	Loureiro 	testified 	that, 	while 	the 	remedy
will 	require 	a 	dewatering 	facility, 	the 	ROD 	does 	not 	account 	for
the 	cost 	of 	creating 	and 	removing 	that 	facility. 	(Id. 	at 	147:4-
12.) 	Mr. 	Loureiro 	also 	testified 	that 	controlling 	ground 	and
surface water will require a complex system of bypass pumping, and
sheet 	piling 	will 	be 	necessary 	to 	separate 	excavation 	areas 	from
river flow. (See, e.g., Mr. Loureiro Test., Trial Tr. vol. 6, 7:11-
8:8; Mr. Loureiro Test., Trial Tr. vol. 10, 23:2-19.) Lastly, Mr.
Loureiro 	described 	how 	that 	the 	ROD 	does 	not 	allocate 	sufficient
funds for the construction of haul roads that will be necessary to
transport contaminated sediment and soil. (Id. at 145:9-147:4.)
Emhart 	never 	mentioned 	any 	of 	these 	costs 	in 	its 	extensive
comments 	on 	the 	PRAP 	or 	PRAP 	Amendment. 	Additionally, 	while 	the
Court found Mr. Loureiro’s overall presentation persuasive, there
is 	reason 	to 	believe 	that 	his 	cost 	estimates 	are 	somewhat
exaggerated. 	EPA’s 	expert, 	Dr. 	Medine, 	noted 	several 	instances
where 	Mr. 	Loureiro 	may 	have 	overlooked 	less 	expensive
alternatives.34 Mr. 	Loureiro 	also did 	not 	address all 	of 	the 	cost
allocations 	already 	provided 	for 	by 	EPA’s 	estimate, 	including
34 	For 	example, 	Dr. 	Medine 	called 	into 	question 	whether 	Mr.
Loureiro’s 	proposed 	bypass 	pumping 	system 	was 	necessary 	in 	light
of 	cheaper 	alternatives 	such 	as 	installing 	culverts. 	(See, 	e.g.,
Dr. Medine Test., Trial Tr. vol. 12, 71:24-72:10.) Dr. Medine also
called 	into 	question 	whether 	the 	cost 	of 	Mr. 	Loureiro’s 	proposed
dewatering 	facility 	was 	necessary 	in 	light 	of 	a 	smaller 	(i.e.,
cheaper) alternative. (Id. at 51:24-52:2.)
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approximately 	$10,800,000 	for 	dewatering 	contaminated 	sediment35,
$3,400,000 	for 	acquisition, 	installation 	and 	removal 	of 	sheet
piling36, and $1,800,000 for construction of haul roads.37 Lastly,
Mr. Loureiro’s cost estimate for water management assumes that the
river channel adjacent to the Source Area must be excavated despite
the fact that the ROD calls for dredging, not excavation, of that
area. (ROD, US1444-170; see also FS, US1254-228.)
2. Conclusions of Law
Emhart 	argues 	that 	EPA 	failed 	to 	take 	into 	account 	several
costs 	associated 	with 	the 	remedy, 	including 	costs 	of 	dewatering
sediment, 	controlling 	surface 	and 	ground 	water, 	and 	construction
of haul roads. None of these arguments were provided to EPA during
the notice and comment period on the PRAP or PRAP Amendment. (See
Emhart Comments on PRAP, US1383; Emhart Comments on PRAP Amendment,
US1418.) 	As 	such, 	Emhart’s 	arguments 	related 	to 	these 	topics 	are
waived. See Upper Blackstone, 690 F.3d at 30. In addition, Emhart
35 	(See 	FS, 	US1254-1647:48-51 	(describing 	approximately
$8,613,000 	in 	costs); 	see 	also 	id. 	at 	1635 	(providing 	for 	a 	25%
contingency).)
36 (See FS Addendum, US1311-868:20-21 (estimating $804,600 to
purchase 	the 	sheet 	piling 	and 	$1,933,742 	to 	install 	and 	remove
it); see also FS, US1254-1635 (providing for a 25% contingency).)
Of 	note, 	EPA 	also 	allocated 	a 	“unit 	cost” 	for 	excavation, 	which
could 	potentially 	provide 	funding 	for 	other 	water 	management
requirements. (See FS Addendum, US1311-889.)
37 (See ROD, US1444-198 (estimating cost for “mobilization and
temporary 	roads”); 	see 	also 	FS 	Addendum, 	US1311-868 	(explaining
costs associated with haul roads).)
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has 	failed 	to 	demonstrate 	that 	EPA 	miscalculated 	costs 	for 	the
above-mentioned 	activities 	and 	that 	those 	miscalculations 	were
“key 	assumptions” 	on 	which 	EPA 	based 	its 	selected 	remedy. 	See
Oklahoma 	Dep’t 	of 	Envtl. 	Quality, 	740 	F.3d 	at 	192 	(quoting
Appalachian Power Co., 135 F.3d at 818).
EPA 	estimates 	that 	the 	remedy 	will 	cost 	approximately
$104,600,000. (ROD, US1444-213.) This estimate includes funds for
dewatering 	contaminated 	sediment, 	controlling 	ground 	and 	surface
water, 	and 	constructing 	haul 	roads. 	While 	Mr. 	Loureiro 	believes
EPA’s 	estimates 	in 	these 	areas 	are 	low, 	it 	is 	unclear 	to 	what
extent. But regardless of the exact number, any miscalculation by
EPA in these areas likely constitutes a relatively small percentage
of 	the 	total 	cost 	of 	the 	remedy, 	and 	any 	necessary 	recalculation
is 	unlikely 	to 	fundamentally 	alter 	EPA’s 	remedy 	selection. 	Under
these 	circumstances, 	the 	Court 	finds 	that 	EPA 	did 	not 	fail 	to
justify 	“key 	assumptions” 	such 	that 	an 	exception 	to 	issue
exhaustion is warranted.
E. Baseline Ecological Risk Assessment
1. Findings of Fact
EPA 	conducted 	a 	remedial 	investigation 	of 	the 	Site 	that
included 	an 	assessment 	of 	ecological 	risks. 	The 	results 	of 	that
investigation 	can 	be 	found 	in 	EPA’s 	Baseline 	Ecological 	Risk
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Assessment, 	or 	“BERA.”38 	The 	BERA 	characterized 	the 	risks 	to
demersal 	fish, 	pelagic 	fish, 	piscivorous 	wildlife, 	and
insectivorous wildlife, and the FS provided proposed cleanup goals
based 	on 	those 	risks. 	(See 	FS, 	US1254-930-33.) 	However, 	EPA’s
remedial goals at the Site were primarily based on risks to human
health, 	not 	risks 	to 	ecological 	receptors. 	(See, 	e.g., 	id. 	at 	73
(“Biota 	PRGs 	are 	not 	presented 	in 	this 	FS 	because 	the 	sediment
PRGs 	(based 	on 	fish 	consumption 	and 	direct 	contact/incidental
ingestion) 	were 	used 	to 	determine 	proposed 	cleanup 	areas 	. 	. 	.
.”); 	see 	also 	id. 	at 	930-33; 	ROD, 	US144-120-22.) 	Furthermore,
Emhart’s objections to EPA’s ecological risk calculations were not
raised in its comments on the PRAP or PRAP Amendment. (See Emhart
Comments 	on 	PRAP, 	US1383; 	Emhart 	Comments 	on 	PRAP 	Amendment,
US1418.)
2. Conclusions of Law
At 	no 	point 	in 	Emhart’s 	comments 	on 	the 	PRAP 	and 	PRAP
Amendment 	did 	Emhart 	address 	potential 	flaws 	in 	EPA’s 	ecological
risk 	assessment, 	including 	EPA’s 	findings 	on 	risks 	to 	demersal
fish, 	pelagic 	fish, 	piscivorous 	wildlife, 	and 	insectivorous
38 See supra note 21. The focus of the BERA is the “actual or
potential impacts of site contaminants on plants and animals. . .
. And the objectives of an ecological risk assessment . . . is to
identify and characterize the current and potential threats to the
environment” 	and 	“to 	identify 	cleanup 	levels 	that 	would 	protect
those natural resources from risk.” (Dr. Keenan, 138:24-139:8, ECF
No. 451.)
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wildlife. (See Emhart Comments on PRAP, US1383; Emhart Comments on
PRAP 	Amendment, 	US1418.) 	Emhart’s 	arguments 	related 	to 	these
topics are therefore waived. Upper Blackstone, 690 F.3d at 30. In
addition, 	Emhart 	has 	failed 	to 	demonstrate 	that 	EPA’s
determinations 	related 	to 	ecological 	risks 	constitute 	“key
assumptions” on which EPA’s selected remedy is based such that an
exception to the doctrine of issue exhaustion is appropriate. See
Oklahoma 	Dep’t 	of 	Envtl. 	Quality, 	740 	F.3d 	at 	192 	(quoting
Appalachian Power Co., 135 F.3d at 818).
A 	review 	of 	both 	the 	FS 	and 	the 	ROD 	reveals 	that 	EPA’s
remedial goals at the Site were primarily based on risks to human
health, not risks to ecological receptors. (See, e.g., FS, US1254-
73, 930-33; ROD, US144-120-22.) Even if the ecological risks were
somehow 	mitigated, 	EPA 	has 	made 	clear 	that 	it 	would 	pursue
essentially 	the 	same 	remedial 	design 	based 	on 	the 	risks 	to 	human
health 	posed 	by 	the 	Site. 	(See, 	e.g., 	Gov’t 	Post-Trial 	Brief 	87
(explaining 	that 	“the 	results 	of 	the 	ecological 	risk 	assessment
had little impact on the selection of the cleanup remedy” because
“site cleanup was not driven by unacceptable ecological risk.”).)
As such, Emhart has failed to show how a change to EPA’s ecological
risk 	determinations 	would 	fundamentally 	change 	EPA’s 	selected
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remedy 	such 	that 	it 	constitutes 	a 	“key 	assumption” 	on 	which 	that
remedy is based.39
F. Vernal Pool Habitats Located in the Oxbow Area
1. Findings of Fact
A 	vernal 	pool 	is 	a 	“seasonal 	pool 	of 	water 	that 	can 	provide
[a] habitat for some plants and animals.” (Dr. Keenan Test., Trial
Tr. 	vol. 	5, 	92:9-10, 	ECF 	No. 	452.) 	The 	2004 	BERA 	noted 	that
“[s]everal 	likely 	vernal 	pools 	were 	observed 	in 	the 	forested
floodplain 	area 	downstream 	from 	the 	Allendale 	damn.” 	(2004 	BERA,
US1040-49.) 	The 	ROD 	also 	noted 	the 	potential 	presence 	of 	vernal
pools in the Oxbow Area. (See ROD, US1444-181-82; 2011 Supplemental
BHHRA & BERA, US1287-218.)
EPA’s proposed remedy for the Oxbow Area includes excavation
and 	the 	installation 	of 	a 	thin-layer 	cover. 	(ROD, 	US1444-7.) 	If
vernal pools are found in the Oxbow Area, EPA recognizes that the
current remedy “will face additional implementation issues.” (FS,
US1254-282.) 	The 	“implementation 	issues” 	consist 	primarily 	of
taking 	“special 	care” 	not 	to 	disturb 	the 	vernal 	pool 	habitats
during 	design 	and 	construction 	of 	the 	thin-layer 	cover. 	(ROD,
39 The Court notes that, just as Emhart cannot establish that
the remedy is invalid based on EPA’s ecological risk calculations,
EPA 	also 	cannot 	justify 	the 	proposed 	remedy 	based 	on 	those 	same
ecological risk calculations. As EPA has argued, and the Court has
agreed, 	EPA’s 	selected 	remedy 	was 	the 	result 	of 	a 	process 	that
focused 	on 	the 	risks 	to 	human 	health 	at 	the 	Site. 	EPA’s 	selected
remedy 	must 	therefore 	stand 	or 	fall 	based 	on 	those 	human 	health
risk determinations.
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US1444-156.) 	In 	light 	of 	these 	findings, 	EPA 	has 	committed 	to
conducting 	“pre-design 	and 	design 	investigations 	[that] 	will
include physical and ecological surveys to further . . . identify
any potential vernal pools.” (Id. at 181-82.)
Emhart 	did 	not 	raise 	any 	issues 	related 	to 	vernal 	pools 	in
either 	its 	comments 	on 	the 	PRAP 	or 	the 	PRAP 	Amendment.
Furthermore, 	at 	trial, 	Emhart’s 	expert 	(Dr. 	Keenan) 	could 	not
testify 	that 	EPA’s 	remedy 	would 	cause 	damage 	to 	any 	potential
vernal 	pools. 	(Dr. 	Keenan 	Test., 	Trial 	Tr. 	vol. 	5, 	92:12-16.)
Instead, 	Dr. 	Keenan 	merely 	suggested 	that 	“it’s 	something 	that
needs to be investigated before it’s implemented.” (Id.)
2. Conclusions of Law
Emhart 	failed 	to 	address 	the 	potential 	presence 	of 	vernal
pool 	habitats 	in 	the 	Oxbow 	Area 	in 	its 	comments 	on 	the 	PRAP 	and
PRAP 	Amendment. 	(See 	Emhart 	Comments 	on 	PRAP, 	US1383; 	Emhart
Comments 	on 	PRAP 	Amendment, 	US1418.) 	As 	such, 	Emhart’s 	arguments
on 	this 	topic 	are 	waived. 	See 	Upper 	Blackstone, 	690 	F.3d 	at 	30.
Moreover, 	Emhart 	has 	failed 	to 	demonstrate 	that 	EPA, 	by 	not
confirming 	the 	presence 	of 	vernal 	pools, 	disregarded 	a 	“key
assumption” 	on 	which 	the 	remedy 	is 	based. 	See 	Oklahoma 	Dep’t 	of
Envtl. 	Quality, 	740 	F.3d 	at 	192 	(quoting 	Appalachian 	Power 	Co.,
135 	F.3d 	at 	818). 	The 	presence 	of 	vernal 	pools 	will 	not
fundamentally 	change 	the 	remedy 	as 	a 	whole, 	but 	instead 	simply
require 	that 	“special 	care” 	be 	taken 	not 	to 	disturb 	the 	vernal
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pools 	in 	one 	of 	the 	five 	action 	areas 	at 	the 	Site. 	(ROD, 	US1444-
156.) 	EPA 	has 	committed 	to 	further 	investigation 	of 	this 	issue
during remedial design and can adjust the remedy as needed.
G. 	Classifying 	Site 	Soils 	and 	Sediments 	as 	Principal 	Threat
Waste and F020 Listed Waste
1. Findings of Fact
EPA classified certain Site soils and sediments as Principal
Threat 	Waste 	(“PTW”)40 	and 	F020 	listed 	waste.41 	Emhart 	challenged
these 	classifications 	in 	their 	comments 	on 	the 	proposed 	remedy.
(See Emhart Comments on Proposed Plan, US1383-83-90.) However, the
ROD 	makes 	clear 	that 	the 	PTW 	and 	F020 	classifications 	had 	no
practical impact on remedy selection. (See, e.g., ROD, US1444-332
(explaining the PTW classification “had no practical effect on the
selected 	remedy”); 	id. 	at 	288 	(explaining 	that 	the 	F020
classification 	“is 	not 	important 	for 	the 	purposes 	of 	the
[conceptual 	site 	model]”).) 	At 	trial 	Emhart’s 	expert, 	Mr.
Loureiro, 	essentially 	conceded 	this 	point. 	(See, 	e.g., 	Mr.
Loureiro 	Test., 	Trial 	Tr. 	vol. 	6, 	161:12-15 	(“And 	ultimately, 	at
the end of the day it doesn't appear that [the PTW classification
40 	PTW 	is 	defined 	as 	material 	that 	is 	highly 	mobile 	and
contains 	high 	concentrations 	of 	toxic 	compounds. 	40 	C.F.R.
§ 300.430(a)(1)(iii)(A).
41 	F020 	listed 	waste 	is 	defined 	as 	“[w]astes 	. 	. 	. 	from 	the
production or manufacturing use . . . of tri- or tetrachlorophenol,
or of intermediates used to produce their pesticide derivatives.”
Id. § 261.31.
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is] 	being 	used 	for 	any 	purpose 	in 	defining 	the 	scope 	of 	the 	work
that 	needs 	to 	be 	done.”); 	id. 	at 	170:11-12 	(“I 	don’t 	think 	[the
F020 classification has] any practical implication with regard to
the costs of the remedy.”).)
2. Conclusions of Law
Emhart argues that EPA’s classification of certain soils and
sediments 	as 	PTW 	and 	F020 	listed 	waste 	was 	arbitrary 	and
capricious. 	The 	Court 	finds 	that 	this 	question 	is 	moot. 	The 	ROD
makes clear that these classifications had no practical impact on
remedy selection. (See, e.g., ROD, US1444-288, 332.) Emhart agrees
that 	the 	PTW 	classification 	“was 	not 	used 	for 	any 	purpose 	in
defining 	the 	scope 	of 	work 	to 	be 	done.” 	(Emhart 	Post-Trial 	Brief
228; 	see 	also 	Mr. 	Loureiro 	Test., 	Trial 	Tr. 	vol. 	6, 	161:12-15.)
And 	Emhart’s 	expert 	essentially 	conceded 	this 	same 	point 	with
respect to the F020 classification. (See Mr. Loureiro Test., Trial
Tr. 	vol. 	6, 	170:11-12.) 	The 	Court 	need 	not 	address 	the
appropriateness of classifications that, if changed, would have no
practical impact on the remedial action itself.
H. Classifying Source Area Ground Water as Drinking Water
1. Findings of Fact
For 	years 	the 	Rhode 	Island 	Department 	of 	Environmental
Management (“RIDEM”) has considered the Source Area groundwater to
be 	so 	contaminated 	that 	it 	is 	unsuitable 	for 	potential 	use 	as
drinking 	water. 	(FS, 	US1254-43.) 	The 	contamination 	is 	caused 	by
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the Source Area, but also possibly by waste sites located close to
the 	Woonasquatucket 	River 	upgradient 	from 	the 	Source 	Area. 	(ROD,
US1444-58.) 	EPA’s 	remedial 	investigation 	emphasized 	RIDEM’s
classification 	of 	the 	Source 	Area 	groundwater 	as 	non-potable 	and
discussed several important uncertainties in its groundwater data,
including the “vertical extent” of the contamination. (RI, US1098-
88.) 	Based 	on 	this 	information, 	the 	FS 	determined 	that 	the
groundwater 	was 	not 	a 	potential 	source 	of 	drinking 	water, 	which
EPA labels as “Class III” groundwater. (FS, US1254-43.)
EPA 	later 	determined 	that 	its 	classification 	of 	the
groundwater as Class III was not appropriate. As explained in the
ROD, 	RIDEM’s 	groundwater 	classification 	system 	had 	not 	“obtained
EPA 	approval 	of 	a 	Comprehensive 	State 	Ground 	Water 	Protection
Program.” 	(ROD, 	US1444-57.)42 	EPA 	therefore 	could 	not 	base 	its
classification 	decision 	on 	RIDEM’s 	findings, 	and 	had 	to 	instead
focus 	on 	the 	standards 	set 	by 	EPA 	guidance. 	(Id. 	at 	343.) 	Citing
these 	standards, 	the 	ROD 	explains 	that 	the 	Class 	III 	designation
does not apply because the groundwater was not “so contaminated by
naturally occurring conditions or the effects of broad-scale human
activity 	(unrelated 	to 	a 	specific 	activity) 	that 	[it] 	cannot 	be
42 	This 	fact 	was 	brought 	to 	EPA’s 	attention 	by 	the 	National
Remedy 	Review 	Board, 	which 	“is 	a 	committee 	of 	EPA 	regional
personnel 	that 	provide 	technical 	assistance 	and 	review 	large,
complex, and costly Superfund sites.” (Mr. Maccarone Test., Trial
Tr. vol. 2, 169:25–170:9.)
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cleaned 	up 	using 	treatment 	methods 	reasonably 	employed 	in 	public
water 	supply 	systems.” 	(Id. 	at 	344.) 	This 	led 	EPA 	to 	label 	the
Source 	Area 	groundwater 	as 	“Class 	II,” 	which 	applies 	to 	“current
and potential sources of drinking water.” (Id.)
EPA 	made 	this 	determination 	despite 	the 	fact 	that 	EPA 	has
recognized data gaps for Source Area groundwater. (See, e.g., RI,
US1098-88.) For example, it is uncertain to what extent dense non-
aqueous 	phase 	liquid 	(“DNAPL”) 	is 	present 	in 	the 	Source 	Area 	and
at 	what 	depths. 	(Compare 	Mr. 	Loureiro 	Test., 	Trial 	Tr. 	vol. 	6,
172:9-173:6 with Dr. Medine Test., Trial Tr. vol. 12, 88:1-89:4.)43
The 	vertical 	extent 	of 	that 	(and 	other) 	contamination 	is
particularly important because the remedy – which partially relies
on 	a 	RCRA 	C 	cap 	to 	prevent 	further 	contamination 	– 	will 	not 	be
effective in stopping contamination sources located below the cap.
(Mr. 	Loureiro 	Test., 	Trial 	Tr. 	vol. 	6, 	177:24-178:12; 	id. 	at
171:17-25; see also Mr. Loureiro Test., Trial Tr. vol. 5, 143:24-
144:17.)
43 	EPA 	has 	collected 	some 	data 	that 	suggests 	DNAPL 	is 	not
present 	in 	the 	Source 	Area 	groundwater. 	(See, 	e.g., 	RI, 	US1098-
205-06; 	ROD, 	US1444-197.) 	However, 	EPA 	has 	also 	found 	some
groundwater contamination in intermediate and deep samples in the
southern end of the Source Area, the origin of which is not clear.
(RI, 	US1098-54.) 	This 	issue 	was 	likely 	not 	more 	thoroughly
investigated 	during 	the 	remedial 	investigation 	because, 	at 	that
time, EPA did not consider the groundwater to be a potential source
of drinking water.
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In 	addition 	to 	possible 	DNAPL 	contamination, 	EPA 	recognizes
that 	“there 	are 	numerous 	non-Superfund 	sources 	. 	. 	. 	that
contribute 	or 	have 	the 	potential 	in 	the 	future 	to 	contribute 	to
exceedances of drinking water standards away from the Source Area.”
(ROD, 	US1444-58.) 	Under 	these 	conditions, 	the 	ROD 	explains 	that
“[f]uture 	groundwater 	uses 	are 	not 	expected 	to 	change
significantly” and that water will continue to be supplied to the
Source 	Area 	by 	outside 	sources. 	(Id.; 	id. 	at 	62.) 	Nevertheless,
EPA persists in classifying the groundwater as a potential source
of drinking water.
The 	change 	in 	classification 	from 	Class 	III 	to 	Class 	II 	led
EPA 	to 	adopt 	stricter 	cleanup 	goals 	for 	the 	Source 	Area
groundwater. 	(FS 	Addendum, 	1311-6, 	79.) 	EPA 	also 	used 	the 	new
classification 	as 	part 	of 	its 	justification 	for 	requiring 	a 	RCRA
C cap over the Source Area. (ROD, US1444-339.) As explained in the
ROD, 	the 	RCRA 	C 	cap 	will 	be 	used 	to 	prevent 	the 	migration 	of
contamination 	from 	the 	soil 	to 	the 	groundwater. 	(ROD, 	US1444-7.)
However, it is unclear whether this will be sufficient to prevent
further 	Source 	Area 	groundwater 	contamination. 	(Id. 	at 	342.)
Therefore, 	the 	ROD 	calls 	for 	groundwater 	monitoring 	wells 	to 	be
installed so that EPA can determine whether federal drinking water
standards are achievable. (Id. at 7.)
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2. Conclusions of Law
Emhart argues that EPA inappropriately classified Source Area
groundwater as Class II as opposed to Class III. Emhart challenged
EPA’s classification of Source Area groundwater in its comments on
the 	PRAP. 	(Emhart 	PRAP 	Comments, 	US1383-102-05; 	see 	also 	ROD,
US1444-338.) 	Emhart 	has 	therefore 	preserved 	this 	issue 	for
judicial review.
The NCP directs EPA “to return usable ground waters to their
beneficial 	uses 	wherever 	practicable, 	within 	a 	timeframe 	that 	is
reasonable 	given 	the 	particular 	circumstances 	of 	the 	site.” 	40
C.F.R. 	§ 	300.430(a)(1)(iii)(F). 	Where 	restoration 	is 	“not
practicable” EPA need not restore the groundwater, but must instead
take 	steps 	to 	“prevent 	further 	migration 	of 	the 	plume, 	prevent
exposure 	to 	the 	contaminated 	ground 	water, 	and 	evaluate 	further
risk 	reduction.” 	Id. 	To 	that 	end, 	EPA 	has 	established 	guidelines
that 	place 	groundwater 	into 	different 	“classes.” 	(ROD, 	US1444-
343.) Class II groundwater is considered a “current and potential
sources of drinking water.” (Id. at 344.) “Class III” groundwater,
on the other hand, is “not considered potential sources of drinking
water.” 	(Id.) 	However, 	even 	where 	EPA 	guidelines 	would 	classify
groundwater 	as 	Class 	II 	(i.e., 	a 	“potential” 	source 	of 	drinking
water), 	the 	NCP 	still 	requires 	EPA 	to 	determine 	whether 	the
application 	of 	drinking 	water 	standards 	is 	“technically
impracticable.” 	40 	C.F.R. 	§ 	300.430(f)(1)(ii)(C)(3); 	see 	also 	42
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U.S.C. 	§ 	9621(d)(4)(C). 	If 	restoration 	of 	the 	groundwater 	is
impracticable, then a waiver is appropriate. Id.
In this case, EPA classified the groundwater as Class III in
the 	vast 	majority 	of 	the 	Site. 	However, 	for 	the 	Source 	Area, 	EPA
classified the groundwater as Class II. (ROD, US1444-342-43.) EPA
explains that this finding is based on EPA guidelines, which permit
the Class III label only where groundwater is “so contaminated by
naturally occurring conditions or the effects of broad-scale human
activity 	(unrelated 	to 	a 	specific 	activity) 	that 	[it] 	cannot 	be
cleaned 	up 	using 	treatment 	methods 	reasonably 	employed 	in 	public
water supply systems.” (Id. at 344.)
As 	EPA 	has 	emphasized 	at 	several 	points 	in 	this 	litigation,
EPA guidance is non-mandatory. (See, e.g., Gov’t Post-Trial Brief
56-57.) 	Moreover, 	agency 	guidelines, 	while 	informative, 	cannot
alter fundamental regulatory requirements. See United States v. S.
Union 	Co., 	643 	F. 	Supp. 	2d 	201, 	211-12 	(D.R.I. 	2009), aff’d, 630
F.3d 17 (1st Cir. 2010), rev’d and remanded on other grounds, 567
U.S. 	343 	(2012). 	Therefore, 	to 	justify 	the 	remedy, 	EPA 	cannot
merely 	show 	that 	it 	followed 	EPA 	guidelines 	in 	classifying 	the
groundwater 	as 	Class 	II. 	Instead, 	EPA 	must 	demonstrate 	that 	it
complied with the NCP.
Unlike EPA guidelines, the NCP neither calls for nor permits
a bright line rule that groundwater must be considered a potential
source 	of 	drinking 	water 	anytime 	contamination 	is 	neither
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“naturally 	occurring” 	nor 	the 	result 	of 	“broad-scale 	human
activity.” Instead, the NCP requires that EPA make a case-specific
determination 	as 	to 	whether 	it 	is 	“practicable” 	to 	restore
groundwater 	to 	its 	“beneficial 	use.” 	40 	C.F.R.
§ 300.430(a)(1)(iii)(F). 	In 	addition, 	EPA 	is 	required 	to 	collect
sufficient 	information 	to 	determine 	whether 	the 	remedy 	is 	likely
to 	be 	“effective” 	in 	restoring 	the 	groundwater 	to 	any 	such 	use.
Id. § 300.430(d)(1); see also id. § 300.430(e)(7)(i).
The evidence makes overwhelmingly clear that the Source Area
groundwater is currently far too contaminated to provide a source
of 	drinking 	water 	and 	that 	“[f]uture 	groundwater 	uses 	are 	not
expected 	to 	change 	significantly.” 	(ROD, 	US1444-58.) 	The 	ROD
recognizes 	that 	there 	are 	likely 	several 	off-Site 	sources 	of
contamination 	contributing 	to 	the 	contamination. 	(Id.) 	In
addition, 	EPA 	has 	been 	on 	notice 	as 	far 	back 	as 	the 	remedial
investigation 	that 	there 	are 	several 	important 	uncertainties 	in
its data for the Source Area groundwater, including the “vertical
extent” of the contamination. (RI, US1098-88.)
In 	light 	of 	these 	issues, 	the 	Court 	finds 	that 	EPA 	has 	not
collected sufficient information or conducted sufficient analysis
on 	which 	to 	base 	its 	finding 	that 	the 	Source 	Area 	groundwater 	is
a potential source of drinking water or that the remedy is likely
to 	effectuate 	that 	outcome. 	Specifically, 	there 	is 	currently
insufficient 	analysis 	regarding 	(1) 	the 	vertical 	extent 	of 	the
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contamination 	at 	the 	Site; 	and 	(2) 	the 	extent 	to 	which 	off-Site
sources 	contribute 	to 	contamination 	in 	the 	Source 	Area
groundwater. Going forward, EPA has broad discretion to determine
how 	best 	to 	characterize 	the 	Site 	and 	make 	any 	necessary
adjustments to the remedy. But, at a minimum, if EPA continues to
classify 	the 	Source 	Area 	groundwater 	as 	a 	potential 	source 	of
drinking 	water, 	EPA 	must 	present 	sufficient 	information 	and
analysis 	to 	justify 	what 	are 	key 	findings 	under 	the 	NCP: 	that
restoration of the groundwater is “practicable” and that the remedy
will be “effective” in bringing about that restoration.
I. Requiring a RCRA C Cap in the Source Area
1. Findings of Fact
The Source Area, as its name suggests, contains a significant
amount of contamination. Three interim protective caps as well as
one RCRA cap have already been placed over several portions of the
Source 	Area. 	(ROD, 	US1444-13.) 	Significant 	portions 	of 	what
remains of the Source Area are covered by paved roads and parking
lots 	that 	service 	two 	elderly 	housing 	facilities 	(Brook 	Village
and Centredale Manor). (Id.)
EPA 	previously 	identified 	the 	existing 	caps 	and 	paved
surfaces as a potential long-term solution. (See, e.g., EPA Action
Mem. dated May 4, 1999, US605-14; 2004 Technical Mem. on Long-Term
Remedy 	for 	Source 	Area 	Soils, 	US1048-25; 	2005 	BHHRA, 	US1101-57.)
However, after EPA classified Source Area groundwater as potential
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drinking 	water, 	EPA 	identified 	the 	RCRA 	C 	cap 	as 	the 	preferred
remedy. 	(ROD, 	US1444-6.) 	Separate 	from 	remediation 	of 	the 	Source
Area 	groundwater, 	EPA 	has 	presented 	evidence 	that 	the 	RCRA 	C 	cap
is 	more 	durable 	and 	more 	likely 	to 	prevent 	direct 	human 	contact
with contaminated soil. (Id. at 333.) However, it is unclear from
the 	record 	whether, 	absent 	the 	change 	to 	groundwater
classification, the ROD would have called for the installation of
a RCRA C cap.
There are significant challenges to implementing a RCRA C cap
on 	the 	Source 	Area. 	For 	example, 	installation 	of 	the 	cap 	will
require removing paved surfaces and excavating substantial amounts
of soil. This will inevitably cause inconvenience for the residents
of 	Brook 	Village 	and 	Centredale 	Manor, 	and 	EPA 	will 	have 	to 	take
special care to ensure that those residents are not exposed to the
toxic 	soil 	that 	is 	being 	excavated 	in 	close 	proximity 	to 	their
homes. 	(See, 	e.g., 	Mr. 	Loureiro 	Test., 	Trial 	Tr. 	vol. 	6, 	45:1-8
(discussing 	“life 	safety 	issues” 	for 	Site 	residents).) 	EPA
considered 	many 	of 	these 	concerns 	in 	the 	FS. 	(See, 	e.g., 	FS,
US1254-208, 313.)
2. Conclusions of Law
EPA is required to address whether a RCRA C cap is “relevant
and appropriate” for the Source Area. See 42 U.S.C. § 9621(d). EPA
determined that a RCRA C cap is “relevant and appropriate.” (ROD,
US1444-296.) 	Emhart 	concedes 	that 	the 	RCRA 	C 	cap 	is 	“relevant,”
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but argues that it is not “appropriate.” (Emhart Post-Trial Brief
190-91.) 	Emhart 	preserved 	this 	issue 	by 	bringing 	it 	to 	EPA’s
attention 	in 	its 	comments 	on 	the 	PRAP. 	(See 	generally 	Emhart
Comments on PRAP, US1383-90-109.)
The 	Court 	already 	determined 	that 	EPA 	has 	not 	conducted
sufficient analysis on which to base its finding that restoration
of Source Area groundwater is practicable. On the current record,
the 	Court 	also 	finds 	that 	EPA’s 	decision 	to 	include 	a 	RCRA 	C 	cap
as 	part 	of 	the 	remedy 	for 	the 	Source 	Area 	is 	inextricably
intertwined 	with 	EPA’s 	current 	remediation 	goals 	for 	Source 	Area
groundwater. 	Therefore, 	EPA 	cannot 	justify 	the 	RCRA 	C 	cap 	absent
further analysis with regards to the Source Area groundwater or a
finding 	that 	the 	RCRA 	C 	cap 	is 	necessary 	regardless 	of 	EPA’s
groundwater 	remediation 	goals. 	This 	analysis 	will 	necessarily
include 	a 	determination 	as 	to 	whether 	the 	benefits 	of 	the 	RCRA 	C
cap 	outweigh 	the 	inconvenience 	and 	potential 	health 	and 	safety
risks 	to 	Site 	residents. 	The 	Court 	reiterates 	that 	EPA 	has
significant 	leeway 	in 	characterizing 	the 	Site 	going 	forward 	and
making 	adjustments 	to 	the 	remedy 	as 	necessary. 	However, 	on 	the
current 	record, 	the 	portion 	of 	the 	ROD 	requiring 	a 	RCRA 	C 	cap
cannot survive judicial scrutiny.
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J. Baseline Human Health Risk Assessment (“BHHRA”)
1. Findings of Fact
a. Sampling of Residential Soils
EPA conducted a residential soil exposure risk assessment as
part 	of 	the 	BHHRA. 	The 	goal 	was 	to 	evaluate 	the 	risks 	to 	human
health caused by contact with the soils along Allendale and Lyman
Mill 	Ponds. 	(See 	generally 	2012 	Technical 	Mem., 	US1392; 	PRAP
Amendment, 	US1422.) 	Emhart 	submitted 	comments 	on 	the 	PRAP
Amendment arguing that EPA had failed “to collect sufficient data
in 	the 	area 	of 	the 	residential 	floodplain 	to 	derive 	appropriate
exposure 	point 	concentrations 	for 	use 	in 	the 	[BHHRA].” 	(Emhart
Comments on PRAP Amendment, US1418-14-15.)
During 	the 	remedial 	investigation 	conducted 	in 	1999 	EPA
collected several samples from each of sixty-two residential lots
located along the Woonasquatucket River. (RI, US1098-25.) EPA also
collected a small number of additional samples in 2001. (See NTCRA,
US1099-37-42.) In total, EPA evaluated 226 data records for dioxin
in 	determining 	the 	potential 	human 	health 	risks 	posed 	by
residential 	Site 	soils. 	(ROD, 	US1444-348-49.) 	Dioxin 	at
concentrations 	“above 	the 	cleanup 	level 	for 	floodplain
residential-use 	soil” 	was 	found 	“in 	approximately 	[forty-five
percent] 	of 	the 	locations 	sampled 	along 	the 	eastern 	shore 	of
Allendale 	and 	Lyman 	Mill 	Ponds.” 	(Id. 	at 	348-49.) 	While 	the 	ROD
commits 	EPA 	to 	conducting 	additional 	sampling 	during 	remedial
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design to define the exact contours of excavation, EPA determined
that 	the 	current 	level 	of 	sampling 	was 	sufficient 	to 	assess 	the
risk to human health posed by the Site. (Id. at 349.)
b. 	Estimates 	Used 	to 	Determine 	Risks 	from 	Recreational
and Residential Pond and Soil Exposure
i. Relative Bioavailability of Dioxin
The 	BHHRA44 	considered 	the 	risks 	from 	dioxin 	exposure 	to
recreational 	users 	and 	residents 	of 	the 	Site. 	This 	required 	that
EPA estimate the relative bioavailabilty (“RBA”) of dioxin in the
soil and sediment. RBA is the availability of dioxin in the medium
to 	which 	humans 	are 	likely 	being 	exposed 	(i.e., 	the 	soil 	and
sediment) 	relative 	to 	the 	medium 	that 	was 	the 	source 	of 	the
exposure. 	(Dr. 	Vorhees 	Test., 	Trial 	Tr. 	vol. 	8, 	65:14-25.) 	This
number 	helps 	EPA 	estimate 	the 	rate 	at 	which 	humans 	are 	likely 	to
absorb 	toxins 	at 	the 	Site. 	(Id.) 	EPA 	guidance 	suggests 	that 	RBA
for dioxin “can be expected to be less than [one] hundred percent.”
(Id. at 66:21-24 (discussing EPA, Dioxin RBA Report, US1542-10).)
Emhart 	therefore 	requested 	that 	EPA 	assume 	a 	RBA 	value 	of 	less
than 	one 	hundred 	percent 	for 	the 	Site. 	(Emhart 	Comments 	on 	PRAP
Amendment, US14418-12-14.)
EPA responded in the ROD that “there is not . . . a consensus
protocol 	for 	determining 	a 	site-specific 	RBA 	for 	dioxin 	in 	soil,
nor are such assessments a common practice.” (ROD, US1444-357-58;
44 	See supra note 20.
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see also Dr. Vorhees Test., Trial Tr. vol. 8, 66:25-67:5.) In the
absence of a “consensus protocol” EPA declined to conduct any Site-
specific 	RBA 	testing 	during 	the 	BHHRA. 	Instead, 	EPA 	used 	the
“protective assumption[]” that that the Site soil and sediment had
a 	RBA 	of 	one 	hundred 	percent. 	(Dr. 	Vorhees 	Test., 	Trial 	Tr. 	vol.
8, 68:7-11; see also ROD, US1444-357-58.) This is common practice
for 	EPA 	at 	other 	CERCLA 	sites. 	(Id. 	at 	67:10-22.) 	It 	is 	also
consistent with EPA guidance. (See EPA, Dioxin RBA Report, US1542-
10.)
ii. How Often People Use the Ponds
Having 	made 	a 	dioxin 	RBA 	assumption 	of 	one 	hundred 	percent,
EPA 	then 	went 	on 	to 	consider 	the 	risks 	to 	persons 	swimming 	and
wading 	in 	the 	ponds. 	In 	doing 	so 	EPA 	had 	to 	estimate 	how 	often
people use the ponds. The BHHRA assumed that the Site is used for
recreational activities from May through October, but specifically
for wading and swimming only from June through August. (2005 BHHRA,
US1101-81.) During these months the BHHRA used the Risk Assessment
Guidance for Superfund to estimate the maximum exposure that would
occur, 	which 	represents 	the 	upper 	percentile 	(95th-99.9th) 	of
exposure 	for 	persons 	using 	the 	Site. 	(See 	EPA, 	Risk 	Assessment
Guidance 	for 	Superfund 	(“RAGS”), 	vol. 	III, 	US1612-207.) 	The
estimated maximum exposure frequency for wading was fifty-two days
per 	year 	for 	young 	children 	(ages 	six 	and 	below) 	and 	thirty-nine
days per year for adults and older children. (2005 BHHRA, US1101-
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82.) 	Based 	on 	the 	“recommended 	exposure 	time 	for 	recreational
swimming,” 	EPA 	estimated 	that 	each 	exposure 	would 	last
approximately one hour. (Id.)
Emhart 	submitted 	comments 	to 	EPA 	on 	the 	BHHRA. 	While 	Emhart
conceded that the ponds were used recreationally, Emhart suggested
that 	a 	lower 	frequency 	of 	use 	should 	be 	assumed 	because 	“[i]t 	is
unlikely 	that 	most 	individuals 	will 	spend 	substantial 	amounts 	of
time 	wading 	in 	the 	river 	or 	ponds 	that 	do 	not 	have 	beach 	areas.”
(Emhart Comments on BHHRA, US1151-47.) There is anecdotal evidence
in the record suggesting that Allendale and Lyman Mill Ponds have
not been frequently used for swimming and wading in the past. (See,
e.g., 	12/7/2011 	Public 	Hearing, 	US1334-37-39; 	8/15/2011 	Email
Correspondence, US1309.) This sentiment was echoed during trial by
Emhart’s 	expert. 	(Mr. 	Loureiro 	Test., 	Trial 	Tr. 	vol. 	6, 	196:14-
197:1.) 	That 	visitors 	and 	residents 	would 	refrain 	from 	swimming
and 	wading 	is 	understandable, 	as 	the 	ponds 	have 	been 	subject 	to
historic 	industrial 	pollution 	(RI, 	US10998-57) 	and 	have 	portions
that 	some 	consider 	unattractive. 	(See, 	e.g., 	Dr. 	Keenan 	Test.,
Trial 	Tr. 	vol. 	4, 	98:25-99:6; 	Mr. 	Loureiro 	Test., 	Trial 	Tr. 	vol.
6, 196:20-197:7.)
However, 	EPA 	presented 	evidence 	at 	trial 	demonstrating 	that
the 	ponds 	are 	undoubtedly 	used 	for 	various 	recreational
activities. 	Residents 	at 	the 	Site 	have 	yards 	that 	lead 	directly
into the ponds, and various residents have placed docks and boats
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in 	the 	ponds. 	(See 	Dr. 	Medine 	Test., 	Trial 	Tr. 	vol. 	12, 	58:25-
59:6.) EPA’s expert, Dr. Vorhees, also testified that she observed
fisherman as well as evidence of other recreational activities at
the Site. (Dr. Vorhees Test., Trial Tr. vol. 8, 11:21-12:19, 47:23-
49:10.) Additionally, as a counter to Emhart’s experts, Dr. Vorhees
testified that she personally found various portions of the ponds
to 	be 	“attractive.” 	(Id. 	at 	48:7-49:20.) 	This 	evidence 	suggests
not 	only 	that 	the 	ponds 	are 	currently 	being 	used 	recreationally,
but 	also 	that 	increased 	use 	could 	be 	expected 	after 	cleanup 	is
complete.
iii. Incidental Ingestion Rates
In 	addition 	to 	estimating 	the 	frequency 	of 	pond 	use 	at 	the
Site, 	EPA 	had 	to 	estimate 	the 	rate 	at 	which 	residents 	and
recreational pond users incidentally ingest soils and sediments.45
EPA 	estimated 	the 	upper 	range 	of 	incidental 	ingestion 	was 	a 	rate
of approximately two hundred milligrams per day for young children
and one hundred milligrams per day for older children and adults.
(2012 Technical Mem., US1392-58.) These ingestion rates are based
on EPA guidance. (See, e.g., IFRAGS, vol. I, US1620-13 (discussing
“Standard 	Default 	Exposure 	Factors”).) 	Dr. 	Vorhees 	testified 	at
trial 	that 	the 	use 	of 	these 	ingestion 	rates 	is 	standard 	practice
45 These ingestion rates were also used to estimate the risks
from residential soil exposure.
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at other CERCLA sites. (Dr. Vorhees Test., Trial Tr. vol. 8, 64:7-
13.)
Emhart’s 	expert, 	Dr. 	Keenan, 	testified 	at 	trial 	that 	these
soil ingestion rates were unnecessarily high. Dr. Keenan explained
that 	EPA’s 	estimate 	is 	based 	primarily 	on 	research 	conducted 	by
Dr. 	Edward 	Stanek 	and 	Dr. 	Edward 	Calabrese. 	(Dr. 	Keenan 	Test.,
Trial 	Tr. 	vol. 	4, 	103:16-21.) 	Those 	researchers 	have 	since 	cut
their recommendations in half, suggesting a soil ingestion rate of
approximately 100 milligrams per day for young children and fifty
milligrams 	per 	day 	for 	older 	children 	and 	adults. 	(See 	Emhart
Comments 	on 	BHHRA, 	US1151-61-64.) 	However, 	EPA 	has 	specifically
considered 	this 	information 	and 	rejected 	the 	researchers’
recommendations. (See EPA Response to Emhart Comments on the BHHRA,
US1450-5.) 	As 	EPA’s 	2011 	Exposure 	Factors 	Handbook 	explains, 	EPA
has 	considered 	the 	available 	information 	(including 	the 	new
research done by Dr. Stanek and Dr. Calabrese) and still recommends
an 	upper 	percentile 	for 	soil 	ingestion 	of 	two 	hundred 	milligrams
per 	day 	for 	young 	children. 	(See 	EPA, 	2011 	Exposure 	Factors
Handbook, Emhart578-268-318.)
iv. Number of Days Per Year Residents are Exposed to
Site Soils
As part of the residential soil risk assessment, EPA estimated
the 	number 	of 	days 	Site 	residents 	are 	exposed 	to 	the 	soil
surrounding 	their 	homes. 	EPA 	estimated 	that 	exposure 	occurs
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approximately 	350 	days 	per 	year. 	(PRAP, 	US1393-5.) 	Emhart
challenged 	this 	estimate 	during 	the 	notice 	and 	comment 	period 	on
the PRAP, arguing that it was unrealistically high given seasonal
weather changes in Rhode Island. (Emhart Comments on PRAP, US1418-
11.) Emhart has also presented evidence that other CERCLA sites in
New 	England 	have 	used 	the 	lower 	exposure 	frequency 	estimate 	of
approximately 150 days per year. (ROD, US1444-356-357.)
There is no consensus way to determine the specific number of
days 	EPA 	should 	use 	as 	the 	exposure 	frequency 	rate. 	(Dr. 	Vorhees
Test., Trial Tr. vol. 8, 59:16-60:3.) EPA guidance provides for a
national 	default 	exposure 	frequency 	rate 	of 	350 	days 	per 	year.
However, EPA guidance also states that this default rate “may not
be 	appropriate 	for 	all 	regions.” 	(EPA, 	RAGS, 	vol. 	I, 	Emhart584-
32.) 	For 	CERCLA 	sites 	in 	New 	England, 	EPA 	has 	previously
recommended 	a 	lower 	exposure 	frequency 	of 	approximately 	150 	days
per year. (Dr. Vorhees Test., Trial Tr. vol. 9, 4:21-6:15, 63:20-
22.)
However, 	EPA 	released 	updated 	regional 	guidance 	in 	2002 	and
since 	that 	time 	has 	typically 	used 	the 	national 	default 	rate 	of
350 	days 	per 	year. 	(ROD, 	US1444-356-57 	(citing 	EPA, 	Supplemental
Soil 	Screening 	Guidance, 	US1637).) 	This 	is 	particularly 	true 	in
Rhode Island where EPA’s local counterpart (RIDEM) has also adopted
a default exposure frequency rate of 350 days. (Dr. Vorhees Test.,
Trial Tr. vol. 8, 59:16-60:3.) For instance, the “Peterson Puritan”
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site, located in Rhode Island, used an exposure frequency rate of
350 days. (Id. at 60:16-21.)
Furthermore, 	as 	noted 	in 	the 	ROD, 	there 	are 	reasons 	why 	EPA
would 	assume 	that 	a 	150-day 	estimate 	is 	too 	low 	for 	the 	Site.
Unlike 	other 	cleanup 	locations, 	the 	Site 	contains 	a 	large
residential 	population 	such 	that 	“access 	to 	this 	site 	is 	not
restricted or otherwise limited.” (EPA, IFRAGS, vol. I, Emhart579-
116; see also id. (“[R]esidential land use is most often associated
with 	the 	greatest 	exposure 	. 	. 	. 	.”); 	ROD, 	US1444-356.) 	As 	such,
the 	residents 	(unlike 	recreational 	users) 	may 	have 	little 	choice
but to venture outside and come into contact with the Site even in
inclement 	weather. 	Additionally, 	because 	residents’ 	houses 	are
located on the Site, staying indoors does not prevent contact with
contamination because Site soils and dust are easily tracked into
the home. (Dr. Vorhees Test., Trial Tr. vol. 8, 60:5-15.)
c. Risks from Fish Consumption
EPA 	conducted 	a 	fish 	consumption 	risk 	assessment 	as 	part 	of
the 	BHHRA. 	The 	goal 	was 	to 	determine 	the 	risks 	to 	human 	health
posed 	by 	fish 	consumption 	at 	the 	Site 	and 	the 	cleanup 	levels 	of
pond 	sediments 	necessary 	to 	mitigate 	those 	risks. 	To 	accomplish
this 	goal, 	EPA 	had 	to 	estimate 	the 	frequency 	with 	which 	people
consumed fish from the Site, the species of fish consumed, and the
contamination levels present in the fish. EPA then determined the
biota-to-sediment accumulation factor (“BSAF”), which is the ratio
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between 	contamination 	levels 	in 	fish 	and 	contamination 	levels 	in
the sediment. (Dr. Keenan Test., Trial Tr. vol. 4, 42:11-43:4.) By
analyzing the frequency and toxicity of fish consumed in the ponds,
in 	combination 	with 	the 	BSAF, 	EPA 	was 	able 	to 	make 	risk
calculations and establish pond sediment remediation goals. Emhart
challenged 	several 	aspects 	of 	EPA’s 	fish 	consumption 	risk
assessment 	in 	its 	comments 	on 	the 	BHHRA. 	(See 	Emhart 	Comments 	on
BHHRA, US1151; see also EPA Response to Emhart Comments on BHHRA,
US1450.)
i. Fish Sampling
Allendale Pond is sustained, in part, by a dam that prevents
the majority of Allendale Pond waters from flowing downstream into
Lyman 	Mill 	Pond. 	The 	dam 	has 	breached 	several 	times, 	including
once in 1991 and twice in April and May of 2001. (See FS, US1254-
43; 	Dr. 	Keenan 	Test., 	Trial 	Tr. 	vol. 	4, 	14:22-15:7.) 	The 	dam 	was
restored after the 2001 breaches and by early 2002 Allendale Pond
was restored to pre-breach water levels. (FS, US1254-43.)
Unfortunately, EPA’s collection of fish samples in Allendale
and 	Lyman 	Mill 	Ponds 	was 	conducted 	in 	July 	2001, 	after 	the 	May
2001 	breach 	but 	before 	Allendale 	pond 	had 	been 	restored. 	(ROD,
US1444-71.) 	This 	led 	to 	two 	sampling 	issues. 	First, 	some 	of 	the
fish collected from Lyman Mill Pond “may actually have been washed
into 	Lyman 	Mill 	Pond 	from 	Allendale 	pond 	at 	the 	time 	of 	the
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Allendale Dam breach.” (MACTEC Mem., US1100-34.)46 This means that
the 	contamination 	levels 	of 	fish 	collected 	from 	Lyman 	Mill 	Pond
“may not bear a meaningful relationship” to the sediment in Lyman
Mill 	pond, 	such 	that 	EPA 	could 	not 	calculate 	an 	accurate 	BSAF.
(CSTAG 	Recommendations, 	US1080-5.) 	The 	Contaminated 	Sediments
Technical 	Advisory 	Group 	(“CSTAG”)47 	highlighted 	this 	issue 	and
“strongly 	recommend[ed] 	that 	new, 	co-located 	sediment 	and 	fish
tissues samples be collected to develop a BSAF.” (Id.)
EPA 	recognized 	this 	problem 	and 	employed 	MACTEC 	to 	find 	an
adequate solution. MACTEC compared EPA’s data collected after the
Allendale 	dam 	breach 	to 	data 	collected 	before 	the 	breach 	and
determined that, if certain steps were taken, “the available data
appear to be sufficient for PRG development and additional sampling
and 	analysis 	is 	not 	recommended 	at 	this 	time.” 	(MACTEC 	4/29/2005
Letter, US 1100.) The steps MACTEC recommended were for EPA to use
fish tissue data and BSAFs from other parts of the Woonasquatucket
River to determine PRGs. EPA complied with this recommendation. As
EPA 	explained 	in 	the 	ROD, 	“[f]or 	[] 	Lyman 	Mill 	Pond, 	arithmetic
mean 	BSAF 	for 	each 	fish 	species 	from 	five 	other 	exposure 	areas
46 	MACTEC 	is 	an 	EPA 	contractor 	that 	was 	used 	during 	the 	risk
assessment to analyze data collected at the Site.
47 	CSTAG 	is 	EPA’s 	internal 	technical 	advisory 	group 	that
monitors 	the 	progress 	and 	provides 	advice 	for 	certain 	large 	and
complex 	Superfund 	sites 	involving 	contaminated 	sediment. 	(See
Principles 	for 	Managing 	Contaminated 	Sediment 	Risks 	at 	Hazardous
Waste Sites, US909.)
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. . . for each contaminant was used in the derivation of species-
specific 	fish-consumption-based 	sediment 	PRGs 	for 	Lyman 	Mill
Pond.” 	(ROD, 	US1444-71 	n.6.) 	This 	allowed 	EPA 	to 	estimate 	a 	BSAF
for 	Lyman 	Mill 	Pond 	without 	using 	the 	data 	points 	objected 	to 	by
Emhart.
The second sampling issue caused by the Allendale dam breach
involved the species of fish collected. EPA collected equal numbers
of 	eel, 	white 	sucker, 	and 	largemouth 	bass 	from 	Lyman 	Mill 	Pond.
(2005 BHHRA, US1101-60.) However, when EPA sampled Allendale Pond,
EPA 	collected 	only 	eel 	and 	white 	sucker, 	but 	no 	largemouth 	bass.
(Id.) 	Based 	on 	that 	data 	EPA’s 	risk 	calculations 	assumed 	that
largemouth bass are not typically present in Allendale Pond. (See
id. at 60, 78-79.)
This 	assumption 	is 	likely 	erroneous. 	As 	MACTEC 	explained 	to
EPA 	after 	reviewing 	the 	BHHRA, 	“[t]he 	absence 	of 	largemouth 	bass
in 	Allendale 	Pond 	in 	July 	2001 	suggests 	that 	largemouth 	bass 	may
[] 	have 	been 	washed 	out 	of 	Allendale 	Pond 	into 	Lyman 	Mill 	Pond.”
(MACTEC Mem., US1100-34.) EPA recognized that assuming the absence
of largemouth bass in Allendale Pond “may have resulted in an over-
or 	under-estimation” 	in 	its 	risk 	assumptions. 	(ROD, 	US1444-71.)
However, unlike with its BSAF calculations, EPA did not adjust its
species assumptions to take into account the likely effects of the
Allendale dam breach.
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ii. Species of Fish Consumed
In 	1999 	the 	Rhode 	Island 	Department 	of 	Health 	established 	a
fish-consumption 	advisory 	at 	the 	Site 	in 	order 	to 	deter 	people
from 	consuming 	contaminated 	fish. 	(Dr. 	Vorhees 	Test., 	Trial 	Tr.
vol. 	8, 	26:18-24.) 	As 	discussed 	below, 	despite 	this 	fish-
consumption advisory, people still fish and consume fish from the
Site. 	In 	order 	to 	estimate 	the 	risk 	to 	human 	health 	from 	fish
consumption 	at 	the 	Site, 	EPA 	came 	up 	with 	protective 	assumptions
about 	the 	species 	of 	fish 	people 	currently 	consume 	from 	the 	Site
as well as the species of fish people would consume under possible
future 	conditions. 	(See, 	e.g., 	id. 	at 	32:14-16.) 	This 	reasonable
maximum exposure is essentially the highest exposure that could be
reasonably 	expected 	to 	occur 	at 	the 	Site. 	(Id. 	at 	37:16-19; 	see
also id. at 40:18-19 (describing “reasonable maximum exposure” as
“the high end of possible exposure”).)
One 	common 	way 	of 	accomplishing 	this 	is 	through 	a 	survey 	of
local anglers. However, an angler survey would be of limited value
at the Site because of the fish-consumption advisory that has been
in 	place 	since 	1999. 	(Id. 	at 	26:18-27:12, 	33:7-14.) 	The 	effects
were evident, for example, in EPA’s 2001 survey of local anglers.
In 	that 	survey 	various 	respondents 	admitted 	to 	catching 	and
consuming 	fish 	from 	the 	Site. 	(2005 	BHHRA, 	US1101-80.) 	However,
“most 	respondents 	were 	aware 	of 	the 	current 	advisory 	against
consumption of fish and other biota from the river” and “indicated
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they no longer consume fish from the river.” (Id.) Given the effect
of the fish-consumption advisory, EPA reasonably concluded that a
Site-specific angler survey would be of limited value in coming up
with 	reasonable 	estimates 	of 	fish 	consumption, 	particularly 	in
estimating 	the 	reasonable 	maximum 	exposure 	of 	likely 	future
consumption.
This 	led 	EPA 	to 	use 	several 	other 	sources 	of 	information 	to
estimate current and future fish-consumption rates at the Site. As
discussed 	above, 	EPA 	sampled 	fish 	from 	Allendale 	and 	Lyman 	Mill
Ponds to determine the types of fish typically caught at the Site.
These included bass, white sucker, and eel. (Id. at 60.) EPA also
used surveys of people living near the site, academic literature,
and 	input 	from 	local 	stakeholders 	to 	confirm 	that 	people 	were
consuming fish at the Site and were likely to do so in the future.
(Id. 	at 	80.) 	Based 	on 	this 	information, 	EPA 	determined 	that 	the
group most likely to be the subject of maximum exposure was certain
Asian populations living near the Site.
The 	academic 	literature 	suggested 	that 	various 	parts 	of 	New
England 	(including 	Rhode 	Island) 	are 	home 	to 	Asian 	populations
that fish both recreationally and as a form of subsistence. (See,
e.g., 	id. 	at 	576, 	583-89.) 	These 	populations 	often 	either 	ignore
or 	misunderstand 	fishing 	advisories 	and 	regularly 	consume 	their
catches 	regardless 	of 	size. 	(See, 	e.g., 	id. 	at 	583-4.)
Additionally, 	they 	catch 	and 	consume 	a 	wide 	variety 	of 	species,
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including species identified at the Site. (See, e.g., id. at 583;
U.S. 	Army 	Corps 	of 	Eng’rs, 	Identification 	of 	Preferred 	Target
Species, 	US847-3-4.) 	EPA, 	in 	consultation 	with 	a 	wide 	variety 	of
local 	subject 	matters 	experts48, 	considered 	these 	findings
persuasive.
The 	information 	garnered 	from 	the 	academic 	literature 	and
local experts also corresponded with some Site-specific data. For
instance, two surveys conducted at or near the Site suggested that
certain Asian populations fish in that area. The first is the 1998
Urban River Use Survey of the Woonasquatucket River, which observed
a 	diverse 	set 	of 	people 	– 	including 	persons 	of 	Asian 	descent 	–
fishing in the Woonasquatucket River. (Id. at 80.) The second was
the 	Tool 	Kit 	for 	Urban 	Rivers, 	which 	focused 	on 	the 	demographics
of 	nearby 	Providence 	and 	found 	the 	“Southeast 	Asian 	population
(Hmong, Camobodian, Laotian, & Vietnamese) and other ethnic groups
were 	. 	. 	. 	high 	consumers 	of 	fish, 	eel, 	and 	turtles 	from 	local
waterways, 	including 	the 	Woonasquatucket 	River.” 	(Id.; 	see 	also
EPA, Tool Kit for Urban Rivers, US1029-3; Dr. Vorhees Test., Trial
Tr. vol. 8, 31:6-21.)
48 EPA consulted with private groups (such as universities and
non-profits) 	as 	well 	as 	RIDEM, 	the 	Rhode 	Island 	Department 	of
Health, and the Rhode Island Division of Fish and Wildlife. (See,
e.g., 	BHHRA, 	US1102-577, 	583; 	U.S. 	Army 	Corps 	of 	Eng’rs,
Identification of Preferred Target Species, US847-3.)
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EPA 	recognized 	that 	the 	lack 	of 	an 	angler 	survey 	made 	EPA’s
analysis of the data more difficult. This meant that “[t]here was
no 	quantitative 	information 	available 	that 	could 	be 	used 	to
quantify 	the 	potential 	combined 	fish 	diet 	in 	a 	more 	detailed
manner.” (EPA Response to Emhart Comments on BHHRA, US1450-3.) EPA
was 	therefore 	forced 	to 	use 	its 	“professional 	judgment 	in
identifying 	the 	composition 	of 	the 	hypothetical 	future 	combined
fish diet.” (Id.) Taking into account the fact that certain Asian
populations 	consumed 	a 	wide 	variety 	of 	fish, 	EPA 	decided 	to 	make
the 	conservative 	estimate 	that 	the 	species 	of 	fish 	found 	in
Allendale and Lyman Mill Ponds were consumed in equal portions.
In 	its 	comments 	on 	the 	BHHRA 	Emhart 	challenged 	EPA’s
assumption 	that 	certain 	populations 	may 	consume 	white 	sucker 	and
eel at the same rate as largemouth bass. (Emhart Comments on BHHRA,
US1151-41.) In the absence of a Site-specific angler survey, Emhart
suggested 	that 	EPA 	consult 	the 	Maine 	Angler 	Survey 	(“MAS”). 	The
MAS 	is 	an 	assessment 	of 	fish 	consumption 	practices 	in 	Maine 	from
1992. EPA’s Exposure Factors Handbook includes some MAS data when
providing recommended consumption rates. (Dr. Keenan Test., Trial
Tr. 	vol. 	4, 	49:17-50:21; 	EPA, 	1997 	Exposure 	Factors 	Handbook,
Emhart598-458-461.) Specifically addressing the consumable species
identified at the Site, the MAS recommends a consumption ratio of
approximately 83:11:3 (largemouth bass - white sucker – eel).
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EPA, 	however, 	determined 	that 	the 	MAS 	should 	not 	be 	relied
upon 	at 	the 	Site. 	Instead, 	EPA 	opted 	to 	use 	its 	“professional
judgment” 	to 	determine 	the 	reasonable 	maximum 	exposure 	of 	a
“hypothetical future combined fish diet.” (EPA Response to Emhart
Comments 	on 	BHHRA, 	US1450-3.) 	As 	discussed 	above, 	EPA 	determined
its 	consumption 	ratios 	using 	academic 	literature, 	input 	from
subject matter experts, and surveys of people living near the Site.
iii. Parts of Fish Consumed
In 	the 	BHHRA, 	EPA 	had 	to 	consider 	which 	parts 	of 	the 	fish
people 	might 	consume. 	For 	the 	purposes 	of 	determining 	the
reasonable 	maximum 	exposure, 	EPA 	assumed 	that 	people 	consume 	the
fillets 	of 	largemouth 	bass 	and 	the 	whole 	body 	of 	eels 	and 	white
sucker. 	Based 	on 	this 	assumption, 	EPA 	used 	the 	contamination
concentrations 	in 	the 	fillets 	of 	largemouth 	bass 	and 	the 	whole-
body contamination concentrations for eel and white sucker in the
BHHRA. 	(Dr. 	Vorhees 	Test., 	Trial 	Tr. 	vol. 	8, 	33:23-34:5.) 	This
increased 	the 	estimated 	risk 	to 	human 	health 	because 	whole-body
contamination 	concentrations 	are 	higher 	than 	the 	contamination
concentrations 	of 	fillets 	due 	to 	the 	fact 	that 	contamination
concentrates to a higher degree in fish organs than in the flesh.
(Id. at 34:9-16, 41:3-6.)
Emhart 	objected 	to 	EPA’s 	use 	of 	whole-body 	contamination
concentrations for white sucker in its comments on the BHHRA. While
recognizing 	that 	“it 	may 	be 	reasonable 	to 	assume 	that 	the 	entire
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eel 	is 	consumed 	in 	certain 	instances,” 	Emhart 	argued 	that 	EPA
lacked 	sufficient 	Site-specific 	data 	on 	which 	to 	base 	its
assumption 	“that 	individuals 	eat 	the 	entire 	sucker, 	which 	is 	an
extremely 	bony 	fish.” 	(Emhart 	Comments 	on 	BHHRA, 	US1151-42.) 	At
trial, Emhart also cited EPA guidance which suggests that “[m]ost
fishers in the United States consume fish fillets.” (EPA, Assessing
Chemical 	Contaminant 	Data 	for 	Use 	in 	Fish 	Advisories, 	vol. 	II,
Emhart590-95.) Absent “specific data on fish preparation methods,”
this 	guidance 	“recommends 	using 	fillets 	as 	the 	standard 	sample
type for analyzing chemical contaminants.” (Id. at 312.)
EPA 	responded 	to 	this 	criticism 	by 	referring 	again 	to 	its
research on certain Asian populations that consume fish at or near
the Site. Academic literature suggests not only that those groups
consume 	a 	wide 	variety 	of 	fish, 	but 	also 	that 	they 	consume 	the
whole body of those fish. For example, one study found that certain
Asian populations fishing in Rhode Island often do not remove the
skin, 	fat 	or 	organs 	of 	the 	fish 	before 	cooking. 	(2005 	BHHRA,
US1102-584.) 	That 	study 	also 	found 	that 	“fish 	cooking 	methods”
include “boiling” such that “the broth may be used for soup.” (Id.)
Another 	study 	provided 	a 	similar 	observation 	of 	Asian 	fishers 	on
the Housatonic River in Connecticut, noting that “[i]n addition to
fillets,” those populations eat “eyes, skin, and organs.” (Id. at
589.)
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These 	conclusions 	were 	also 	supported 	by 	EPA 	guidance. 	The
same 	EPA 	guidance 	cited 	by 	Emhart 	also 	notes 	that 	“[c]ertain
populations, including some Asian-Americans . . . eat parts of the
fish other than the fillet and may consume the whole fish. Recipes
from many cultures employ whole fish for making soups or stews. As
a 	result, 	more 	of 	the 	fish 	contaminants 	are 	consumed.” 	(EPA,
Assessing 	Chemical 	Contaminant 	Data 	for 	Use 	in 	Fish 	Advisories,
vol. 	II, 	Emhart590-309.) 	Based 	on 	this 	information 	EPA 	“assumed
that 	white 	sucker 	might 	be 	most 	likely 	to 	be 	consumed 	if 	it 	were
a 	component 	of 	a 	fish 	stew 	or 	similar 	meal 	(as 	a 	whole 	body).”
(EPA Response to Emhart Comments on BHHRA, US1450-3.)
iv. Consumption Amounts from the Site
In 	considering 	the 	risks 	to 	human 	health 	posed 	by 	fish
consumption, 	EPA 	had 	to 	estimate 	the 	reasonable 	maximum
consumption 	rate 	of 	fish 	at 	the 	Site. 	EPA 	did 	this, 	in 	part, 	by
considering data from the MAS. (2005 BHHRA, US1101-79.) According
to 	that 	data, 	the 	upper 	end 	(i.e., 	90th 	percentile) 	of 	adult
fishers 	who 	do 	not 	share 	the 	fish 	they 	catch 	can 	be 	expected 	to
consume approximately “23 half-pound fish meals in a year or . . .
about one fish meal every two to three weeks” from the Site. (Dr.
Vorhees 	Test., 	Trial 	Tr. 	vol. 	8, 	38:5-7; 	see 	also 	MAS, 	US1541-7;
2005 	BHHRA, 	US1101-79.) 	This 	equates 	to 	approximately 	fourteen
grams of fish per day from the Site. (Id.)
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In 	its 	comments 	on 	the 	BHHRA 	Emhart 	challenged 	these
consumption 	rates 	for 	two 	reasons. 	(Emhart 	Comments 	on 	BHHRA,
US1151-44.) 	First, 	Emhart 	argued 	that 	EPA 	was 	overestimating 	the
amount 	of 	fish 	consumed 	by 	adults. 	(Id. 	at 	45.) 	As 	Emhart 	noted,
the 	MAS 	found 	that 	most 	anglers 	share 	their 	catch 	with 	other
members of the household and therefore typically consume less than
fourteen grams per day. (Id.) Under these circumstances, Dr. Keenan
opined at trial that EPA should have assumed household sharing of
fish 	in 	calculating 	reasonable 	maximum 	consumption 	rates. 	(Dr.
Keenan Test., Trial Tr. vol. 4, 69:6-71:14.)
Dr. 	Vorhees 	disagreed 	and 	testified 	that 	EPA’s 	assumptions
were 	reasonable. 	As 	she 	explained, 	in 	calculating 	the 	reasonable
maximum exposure EPA “obviously had a concern about the angler who
does not share their catch and wanted to be sure to protect them.”
(Dr. Vorhees Test., Trial Tr. vol. 8, 40:13-15.) According to Dr.
Vorhees, 	EPA’s 	decision 	was 	therefore 	reasonable 	“because 	[EPA]
wanted 	to 	protect 	consumers 	who, 	in 	fact, 	catch 	fish 	and 	don’t
necessarily share their catch.” (Id. at 39:3-5.)
Emhart’s 	second 	challenge 	to 	EPA’s 	consumption 	rates 	was
based on EPA’s assumption that all fourteen grams consumed by the
adult fisher came from the Site. (Emhart Comments on BHHRA, US1151-
45.) 	EPA 	has 	explained 	that 	its 	“fish 	consumption 	rates 	include
only 	fish 	caught 	from 	the 	water 	bodies 	at 	the 	Site, 	and 	do 	not
include fish caught at other locations nor fresh or preserved fish
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purchased for consumption.” (2005 BHHRA, US1101-79.) This suggests
that EPA is assuming that the adult fisher consumes fourteen grams
per 	day 	from 	the 	Site 	and 	also 	consumes 	significant 	additional
fish from other sources.
While this assumption may be reasonable, it does not conform
to 	the 	MAS 	data 	on 	which 	EPA 	basis 	its 	analysis. 	(Id.) 	In 	the
context of its fourteen-gram estimate, The MAS explains that
the 	study 	was 	designed 	to 	collect 	data 	on 	consumption
from all flowing bodies of water, and not just the . . .
contaminated water. Thus, although individuals may fish
in affected river reaches some of the time, it is highly
unlikely 	that 	all 	fishing 	effort 	is 	focused 	on 	these
waters, 	particularly 	because 	there 	are 	numerous
alternative fisheries in close proximity to each river.
. . . Consequently, whereas the estimates for rivers and
streams 	include 	all 	consumed 	fish 	from 	rivers 	and
streams 	during 	the 	season, 	it 	is 	likely 	that 	only 	a
portion of the consumption can be attributed to a single
water body.
(MAS, 	US1541-7.) 	As 	this 	makes 	clear, 	the 	MAS’s 	fourteen-gram
estimate 	assumes 	that 	those 	fourteen 	grams 	come 	from 	multiple
sources.
2. Conclusions of Law
Emhart previously challenged the sufficiency of the BHHRA in
comments 	submitted 	to 	EPA. 	However, 	several 	of 	Emhart’s 	specific
arguments presented at trial were not submitted during the official
notice 	and 	comment 	period. 	Such 	arguments 	are 	typically 	waived
under the doctrine of issue exhaustion. However, because the Court
finds that the portions of the BHHRA challenged by Emhart were so
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foundational to EPA’s remedy-selection process, and because Emhart
previously 	brought 	many 	of 	these 	issues 	to 	EPA’s 	attention, 	a
limited exception is warranted. EPA has emphasized that the BHHRA
was 	the 	primary 	driver 	of 	EPA’s 	cleanup 	standards. 	(See, 	e.g.,
Gov’t Post-Trial Brief 87.) Under these circumstances, EPA must be
able to justify the BHHRA’s “key assumptions.” See Oklahoma Dep’t
of Envtl. Quality, 740 F.3d at 192 (quoting Appalachian Power Co.,
135 F.3d at 818). These “key assumptions” include EPA’s conclusions
regarding 	the 	human 	health 	risks 	posed 	by 	soil 	exposure, 	pond
exposure, and fish consumption at the Site.
a. Sampling of Residential Soils
Emhart challenges the sufficiency of EPA’s sampling process,
describing 	it 	as 	“sparse.” 	(Emhart 	Post-Trial 	Brief 	79.) 	Emhart
points 	to 	the 	fact 	that 	EPA 	collected 	fewer 	than 	four 	samples
containing dioxin data for each property at the Site. (Id. at 79-
80.) However, as the Court explained in previous sections, the NCP
does 	not 	require 	a 	specific 	number 	of 	samples. 	Instead, 	EPA 	need
only 	“collect 	data 	necessary 	to 	adequately 	characterize 	the 	site
for 	the 	purpose 	of 	developing 	and 	evaluating 	effective 	remedial
alternatives.” 	40 	C.F.R. 	§ 	300.430(d)(1). 	In 	characterizing 	the
risks 	from 	residential 	soil 	exposure 	EPA 	reviewed 	approximately
226 data points, which included several samples from each of sixty-
two 	residential 	properties 	at 	the 	Site. 	Emhart 	has 	failed 	to
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demonstrate 	how 	this 	level 	of 	sampling 	is 	somehow 	insufficient
under the NCP.
b. 	Estimates 	Used 	to 	Determine 	Risks 	from 	Recreational
and Residential Pond and Soil Exposure
Emhart challenges various estimates made by EPA in conducting
the 	pond 	and 	soil 	risk 	assessments. 	Emhart 	argues 	that 	EPA 	used
inappropriately high estimates in characterizing: (1) the relative
bioavailability 	(“RBA”) 	of 	dioxin; 	(2) 	the 	rates 	at 	which 	people
incidentally 	ingest 	contaminants; 	(3) 	how 	often 	people 	use 	the
ponds at the Site; and (4) how often residents are exposed to Site
soils.
In 	each 	of 	these 	areas, 	EPA 	did 	not 	rely 	solely 	on 	Site-
specific data, but instead developed “conservative” estimates (in
the 	sense 	that 	EPA 	erred 	on 	the 	side 	of 	protecting 	people 	from
exposure) based on available scientific literature, EPA guidance,
and 	experience 	at 	other 	CERCLA 	sites. 	This 	practice 	does 	not
inherently violate the NCP. While the NCP requires that EPA collect
sufficient 	site-specific 	data 	to 	adequately 	compare 	remedial
options, it plainly does not mandate that every piece of data used
by 	EPA 	be 	the 	result 	of 	sampling 	at 	the 	site. 	And 	in 	the 	absence
of clear direction from either the NCP or CERCLA, the development
of 	broadly 	applicable 	estimates 	for 	use 	on 	either 	a 	regional 	or
national 	basis 	falls 	squarely 	within 	the 	purview 	of 	EPA. 	See 	Fox
Television 	Stations, 	556 	U.S. 	at 	513–14; 	Florida 	Power 	& 	Light
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Co., 404 	U.S. 	at 	463. 	The 	question 	is 	whether 	EPA’s 	use 	of 	these
estimates 	for 	the 	Site 	was 	somehow 	arbitrary 	and 	capricious. 	The
Court finds that it was not.
EPA’s estimates are not “without substantial basis in fact.”
Muszynski, 899 F.2d at 160 (quoting Florida Power & Light Co., 404
U.S. 	at 	463). 	EPA 	has 	surveyed 	the 	available 	data 	and 	provided
reasonably 	conservative 	estimates 	for 	use 	at 	CERCLA 	sites. 	To 	be
sure, 	there 	is 	no 	universal 	consensus 	on 	how 	to 	estimate 	the 	RBA
of 	dioxin, 	incidental 	ingestion 	rates, 	or 	pond 	and 	soil 	exposure
frequency. But it is precisely in these areas that involve evolving
scientific 	considerations 	that 	deference 	to 	EPA’s 	“technical
expertise 	and 	experience” 	is 	appropriate. 	Id. 	(quoting 	Florida
Power 	& 	Light 	Co., 404 	U.S. 	at 	463). 	And 	while 	EPA’s 	assumptions
are 	certainly 	conservative, 	that 	is 	by 	design. 	The 	NCP 	mandates
that 	EPA’s 	“goal 	. 	. 	. 	is 	to 	select 	remedies 	that 	are 	protective
of human health and the environment, that maintain protection over
time, 	and 	that 	minimize 	untreated 	waste.” 	40 	C.F.R.
§ 300.430(a)(1)(i). 	In 	so 	doing, 	EPA 	estimates 	the 	reasonable
maximum 	exposure 	that 	is 	likely 	to 	occur 	for 	both 	current 	and
potential 	future 	land 	use 	at 	the 	Site. 	(EPA, 	IFRAGS, 	vol. 	I,
Emhart579-24.) 	The 	use 	of 	a 	conservative 	estimate 	under 	these
circumstances – erring on the side of caution when it comes to the
risk of cancer (and other maladies) for those living in and around
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the 	Site 	– 	is 	neither 	arbitrary, 	capricious, 	nor 	a 	violation 	of
the NCP.
c. Risks from Fish Consumption
Emhart 	challenges 	several 	aspects 	of 	EPA’s 	fish 	consumption
estimates in the BHHRA. With regards to EPA’s estimates about the
types and parts of fish consumed from the Site, Emhart’s challenges
focus primarily on EPA’s decision to forego a Site-specific angler
survey 	and 	to 	rely 	on 	data 	from 	outside 	the 	MAS. 	Neither 	the 	NCP
nor EPA guidance mandates that EPA conduct an angler survey or use
data 	from 	the 	MAS. 	Instead, 	as 	discussed 	above, 	EPA 	need 	only
“collect 	data 	necessary 	to 	adequately 	characterize 	the 	site 	for
the 	purpose 	of 	developing 	and 	evaluating 	effective 	remedial
alternatives.” 	40 	C.F.R. 	§ 	300.430(d)(1). 	After 	collecting 	that
data, 	EPA 	must 	then 	draw 	conclusions 	that 	are 	not 	arbitrary 	or
“without 	substantial 	basis 	in 	fact.” 	Muszynski, 	899 	F.2d 	at 	160
(quoting Florida Power & Light Co., 404 U.S. at 463).
In determining species preference at the Site EPA reasonably
concluded that an angler survey would be of little use because of
the fish-consumption advisory in place at the Site. EPA therefore
looked 	to 	alternative 	sources 	of 	information, 	including 	local
subject matter experts, academic literature on fish-consumption in
Rhode 	Island 	and 	surrounding 	states, 	surveys, 	and 	fish 	samples
collected from the Site. This level of data collection provided an
adequate, 	non-arbitrary, 	basis 	on 	which 	to 	determine 	the 	likely
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species 	preferences 	of 	the 	most 	vulnerable 	populations 	near 	the
Site for the purposes of developing a reasonable maximum exposure
estimate. EPA certainly had to make judgment calls along the way,
but these decisions deserve deference considering EPA’s “technical
expertise 	and 	experience,” 	id. 	(quoting 	Florida 	Power 	& 	Light
Co., 404 U.S. at 463), as well as EPA’s duty to make conservative
estimates 	in 	order 	to 	protect 	human 	health. 	See 	40 	C.F.R.
§ 300.430(a)(1)(i).
With 	that 	said, 	regarding 	EPA’s 	estimates 	for 	the 	amount 	of
fish 	consumed 	from 	the 	Site, 	the 	Court 	finds 	two 	instances 	where
EPA’s analysis was arbitrary. First, EPA relied on knowingly non-
representative 	sampling 	to 	assume 	that 	no 	largemouth 	bass 	are
consumed 	from 	Allendale 	Pond. 	Despite 	being 	on 	notice 	that
largemouth bass are likely present in Allendale Pond, EPA excluded
them 	from 	its 	Allendale 	Pond 	risk 	calculation. 	Emhart 	has
demonstrated 	that 	this 	misstep 	arbitrarily 	increased 	the 	risk
calculation for Allendale Pond. See Motor Vehicle Mfrs., 463 U.S.
at 	50 	(describing 	agency 	action 	as 	arbitrary 	where 	the 	agency
“entirely failed to consider an important aspect of the problem”).
Second, EPA assumed that certain populations consume fourteen
grams 	of 	fish 	per 	day 	from 	the 	Site. 	While 	the 	fourteen-grams
estimate 	is 	based 	on 	the 	MAS, 	the 	MAS 	provides 	the 	caveat 	that
“only 	a 	portion 	of 	the 	consumption 	can 	be 	attributed 	to 	a 	single
water 	body.” 	(MAS, 	US1541-7.) 	While 	EPA 	may 	ultimately 	determine
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that 	fourteen 	grams 	is 	the 	appropriate 	reasonable 	maximum
consumption rate at the Site, on the current record (i.e., basing
its 	estimate 	on 	the 	MAS 	data 	alone) 	EPA’s 	decision 	is 	arbitrary.
See Motor Vehicle Mfrs., 463 U.S. at 50 (describing agency action
as 	arbitrary 	where 	the 	agency 	“offered 	an 	explanation 	for 	its
decision that runs counter to the evidence before the agency.”)
Both of these missteps must be remedied before moving forward.
How 	best 	to 	address 	these 	issues 	and 	identify 	any 	consequent
changes 	to 	the 	remedy 	is 	appropriately 	addressed 	by 	EPA 	in 	the
first 	instance. 	That 	is 	EPA’s 	prerogative, 	to 	be 	reviewed 	by 	the
Court only as provided under CERCLA.
K. Notice and Reasonable Opportunity to Comment
1. Findings of Fact
EPA drafted a PRAP in the fall of 2011. (PRAP, US1328.) Based
on 	subsequent 	analysis, 	EPA 	made 	several 	changes 	to 	the 	PRAP 	in
the 	form 	of 	a 	PRAP 	Amendment, 	which 	was 	published 	the 	following
summer. (PRAP Amendment, US 1393.) 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.) 	EPA 	provided 	the
public 	notice 	of 	the 	PRAP 	and 	PRAP 	Amendment 	through 	newspaper
announcements. (Id.) EPA then participated in public hearings and
considered 	comments 	from 	a 	variety 	of 	sources, 	including 	Emhart.
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(Id.; see also Emhart Comments on PRAP, US1383; Emhart Comments on
PRAP Amendment, US1418.)
2. Conclusions of Law
Emhart 	argues 	that 	EPA 	failed 	to 	provide 	the 	public 	notice
and 	a 	reasonable 	opportunity 	to 	comment 	on 	the 	PRAP 	and 	PRAP
Amendment. 	Before 	publication 	of 	the 	ROD, 	EPA 	is 	required 	to
present 	a 	PRAP 	to 	the 	public 	“for 	review 	and 	comment.” 	40 	C.F.R.
§ 	300.430(f)(1)(ii). 	The 	PRAP 	must 	“briefly 	describe[] 	the
remedial 	alternatives 	analyzed 	by 	the 	lead 	agency, 	propose[] 	a
preferred 	remedial 	action 	alternative, 	and 	summarize[] 	the
information relied upon to select the preferred alternative.” Id.
§ 	300.430. 	EPA 	must 	then 	provide 	the 	public 	“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). 	The 	purpose 	of 	this
process is 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).
EPA complied with these NCP requirements. However, the Court
has 	found 	several 	instances 	where 	EPA’s 	analysis 	was 	flawed 	and
the 	results 	of 	that 	analysis 	were 	included 	in 	the 	PRAP 	and 	PRAP
Amendment. 	EPA 	has 	also 	committed 	to 	conducting 	further 	analysis
during remedial design and reserved the right to modify the remedy.
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EPA 	is 	therefore 	responsible 	for 	updating 	the 	administrative
record as necessary to correct flaws in its analysis and document
future 	analysis 	conducted 	during 	remedial 	design. 	Id.
§ 300.825(a)(1). 	To 	the 	extent 	EPA’s 	corrections 	or 	the 	remedial
design 	process 	lead 	to 	a 	significant 	change 	to 	the 	remedy49, 	EPA
must 	provide 	for 	an 	additional 	notice 	and 	comment 	period 	as
required by the NCP.
L. Failure to Comply with the Unilateral Administrative Order
1. Findings of Fact
Emhart 	initiated 	this 	litigation 	in 	May 	2006. 	(Phase 	I
Findings 	3-4.) 	EPA 	did 	not 	issue 	the 	ROD 	until 	over 	six 	years
later, 	in 	September 	2012. 	(See 	ROD, 	US1444.) 	EPA 	then 	issued 	its
Unilateral 	Administrative 	Order 	(“UAO”) 	on 	June 	10, 	2014. 	(See
UAO, 	US1490.) 	The 	UAO 	ordered 	Emhart 	“to 	perform 	the 	Remedial
Design, 	Remedial 	Action, 	and 	Operation 	and 	Maintenance 	for 	the
selected 	remedy 	. 	. 	. 	as 	described 	in 	the 	Record 	of 	Decision.”
(Id. at 5.) That UAO currently remains in place.
Since EPA’s issuance of the UAO the Court has completed Phase
I and II of this litigation. The Phase I trial lasted over twenty
days beginning on May 18, 2015 and resulted in Emhart being found
liable 	under 	CERCLA. 	However, 	the 	Court 	also 	found 	that 	“the
49 	What 	constitutes 	a 	“significant 	change” 	includes, 	among
other 	things, 	a 	significant 	increase 	in 	the 	estimated 	amount 	of
time 	it 	will 	take 	to 	implement 	the 	remedy, 	costs, 	and 	potential
disruption to local residents.
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Government 	is 	not 	yet 	entitled 	to 	judgment 	in 	its 	favor 	on 	this
claim because the issues of costs and whether the remedy selected
by the EPA is consistent with CERCLA first need to be litigated in
the second phase of this trial.” (Phase I Findings 185-86.) Emhart
has continued to refuse to comply with the UAO through Phase II of
this litigation based on its objections to the selected remedy.
2. Conclusions of Law
CERCLA 	authorizes 	EPA 	to 	issue 	“such 	orders 	as 	may 	be
necessary 	to 	protect 	public 	health 	and 	welfare 	and 	the
environment.” 42 U.S.C. § 9606(a). This includes situations where
there 	“may 	be 	an 	imminent 	and 	substantial 	endangerment 	to 	the
public 	health 	or 	welfare 	or 	the 	environment 	because 	of 	an 	actual
or 	threatened 	release 	of 	a 	hazardous 	substance 	from 	a 	facility.”
Id. 	Any 	entity 	that 	“willfully 	violates” 	such 	an 	order 	“without
sufficient 	cause” 	may 	be 	liable 	for 	fines 	and 	punitive 	damages.
Id. §§ 9606(b)(1); 9607(c)(3). These penalties are not mandatory,
but are instead authorized at the discretion of the Court. See id.
§§ 	9606(b)(1), 	9607(c)(3) 	(explaining 	that 	violators 	“may” 	be
liable 	for 	penalties); 	Gen. 	Elec. 	Co. 	v. 	Jackson, 	610 	F.3d 	110,
119 (D.C. Cir. 2010) (“[T]he district court has authority to decide
not to impose fines even if it concludes that a recipient ‘without
sufficient 	cause, 	willfully 	violate[d], 	or 	fail[ed] 	or 	refuse[d]
to comply with’ a UAO.”) (citing 42 U.S.C. §§ 9606(b), 9607(c)(3)).
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What constitutes “sufficient cause” under CERCLA has not been
addressed 	by 	the 	First 	Circuit. 	However, 	multiple 	other 	Circuit
Courts 	of 	Appeal 	have 	interpreted 	“sufficient 	cause” 	to 	mean 	a
“good 	faith” 	or 	“objectively 	reasonable 	basis 	for 	believing 	that
the 	EPA's 	order 	was 	either 	invalid 	or 	inapplicable 	to 	it.” 	Solid
State 	Circuits, 	Inc. 	v. 	EPA, 	812 	F.2d 	383, 	391 	(8th 	Cir. 	1987);
see 	also, 	e.g., 	Gen. 	Elec. 	Co., 	610 	F.3d 	at 	119; 	Emp’rs 	Ins. 	of
Wausau 	v. 	Browner, 	52 	F.3d 	656, 	661 	(7th 	Cir. 	1995). 	A 	party 	may
meet 	this 	standard 	by 	demonstrating 	“that 	the 	applicable
provisions 	of 	CERCLA, 	EPA 	regulations 	and 	policy 	statements, 	and
any 	formal 	or 	informal 	hearings 	or 	guidance 	the 	EPA 	may 	provide,
give rise to an objectively reasonable belief in the invalidity or
inapplicability of the clean-up order.” Solid State Circuits, 812
F.2d at 392.
In 	this 	case, 	Emhart 	does 	not 	challenge 	EPA’s 	finding 	that
the 	Site 	qualifies 	as 	a 	potential 	“imminent 	and 	substantial”
environmental threat sufficient to justify a UAO. Moreover, in the
aftermath of the Phase I trial, Emhart cannot assert that the UAO
is somehow inapplicable to it. Instead, Emhart argues that it has
a “sufficient basis” to not comply with the UAO based on its good
faith challenges to the validity of EPA’s selected remedy.
The Court has determined that several aspects of EPA analysis
qualify 	as 	arbitrary, 	including 	the 	classification 	of 	Site
groundwater 	as 	a 	potential 	source 	of 	drinking 	water 	and 	portions
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of 	the 	fish 	consumption 	risk 	assessment. 	Emhart 	made 	timely
objections highlighting these issues in its comments on the PRAP.
These 	sorts 	of 	missteps 	on 	the 	part 	of 	EPA 	do 	not 	automatically
provide 	potentially 	responsible 	parties 	sufficient 	cause 	to
disregard 	a 	UAO. 	However, 	given 	that 	Emhart 	has 	continuously
objected to critical aspects of the remedial design that the Court
has 	now 	found 	arbitrary, 	and 	Emhart’s 	previous 	participation 	in
the 	cleanup 	process, 	the 	Court 	finds 	that 	Emhart’s 	challenge 	to
the UAO up to this point has been pursued in objective good faith.
V. Conclusion
EPA has developed a remedial action using the process outlined
in 	CERCLA 	and 	the 	NCP. 	That 	remedial 	action, 	if 	completed, 	will
mitigate 	the 	risks 	to 	human 	health 	and 	the 	environment 	EPA 	has
identified 	at 	the 	Site. 	However, 	in 	developing 	that 	remedial
action, 	EPA 	made 	several 	decisions 	that 	the 	Court 	finds 	violated
CERCLA 	because 	they 	were 	arbitrary, 	capricious, 	or 	otherwise 	not
in 	accordance 	with 	law; 	these 	must 	be 	addressed 	before 	moving
forward with the remedial action.
The Court finds that Emhart has met its burden in establishing
that, 	on 	the 	record 	as 	currently 	constituted, 	the 	following
decisions 	were 	arbitrary, 	capricious, 	or 	otherwise 	not 	in
accordance 	with 	law: 	(1) 	labelling 	Source 	Area 	groundwater 	as 	a
potential source of drinking water; (2) assuming that there are no
largemouth bass in Allendale Pond; and (3) using fourteen grams as
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the reasonable maximum consumption rate for anglers fishing at the
Site. 	The 	UAO 	is 	stayed 	until 	these 	matters 	are 	resolved, 	and
Emhart is not required to pay the fines and fees stemming from its
non-compliance with the UAO that have accrued up to this point.
The Court can envision several ways EPA could approach these
deficiencies. 	EPA 	could 	find 	that 	the 	issues 	identified 	by 	the
Court 	require 	EPA 	to 	reopen 	the 	remedial 	investigation 	and
feasibility study process and publish a PRAP Amendment, as it has
done 	in 	the 	past. 	The 	Court 	takes 	no 	view 	as 	to 	the 	appropriate
course of action at this time and leaves it to EPA to address these
issues 	in 	the 	first 	instance. 	However, 	the 	Court 	retains
jurisdiction in this matter in order to ensure that the issues are
addressed in a manner consistent with the law and not arbitrary or
capricious.
Lastly, the Court notes that its decision is based, in part,
on 	EPA’s 	commitment 	to 	further 	sampling 	and 	analysis 	during 	the
remedial 	design 	phase. 	EPA 	concedes 	that 	information 	discovered
during 	remedial 	design 	may 	require 	alterations 	to 	EPA’s 	analysis
and 	the 	chosen 	remedy. 	For 	instance, 	EPA’s 	estimates 	may 	change
with 	regards 	to 	the 	amount 	of 	money 	and 	time 	it 	will 	take 	to
implement the remedy or the potential hazards and inconvenience to
local residents caused by implementation. Again, the Court retains
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jurisdiction over this process to ensure that EPA’s actions are
consistent with the law and not arbitrary or capricious.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: August 17, 2017
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