United States of America v. City of San Diego

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
CITY OF SAN DIEGO,
Defendant.
Case No.: 3:23-cv-00541-LL-VET
ORDER DENYING MOTION TO
SUPPLEMENT THE
ADMINISTRATIVE RECORD
[ECF No. 153]
AND RELATED CROSS CLAIMS
Before the Court is Defendant City of San Diego’s (“City”) Motion to Supplement
the Administrative Record (“Motion”). ECF No. 153. Plaintiff United States of America
(“United States”) timely opposed the Motion. ECF No. 162 (“Opposition”). For the reasons
discussed below, the Motion is DENIED.
/ / /
/ / /
/ / /
/ / /
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I. 	BACKGROUND
On March 20, 2025, the City filed the instant Motion, seeking to add six documents
to the administrative record. See generally Mot. Specifically, the City seeks to supplement
the record with the following exhibits:
• 	Exhibit A: Press Release, Southern Environmental Law Center, “Members
of Congress propose protections from toxic PFAS pollution for military
members, firefighters, and communities” (dated Mar. 6, 2025), see ECF
No. 153-3;
• 	Exhibit 	B: 	Draft 	Addendum 	to 	Memorandum 	to 	File 	Regarding
Identification 	of 	Per- 	and 	Polyfluoroalkyl 	Substances 	(PFAS)
Investigation Locations (dated Apr. 22, 2020), see ECF No. 153-4;
• 	Exhibit C: Draft Memorandum to File Regarding Identification of Per- and
Polyfluoroalkyl Substances (PFAS) Investigation Locations (dated Apr.
22, 2020), see ECF No. 153-5;
• 	Exhibit D: Excerpt of J. Michael Trapp, PhD’s Expert Report: Review of
NTC Boat Channel Sediment Contamination Remediation (dated Dec. 23,
2024), see ECF No. 153-6;
• 	Exhibit E: Final Finding of Suitability to Transfer for Parcels III-B and VII
(dated Mar. 1, 2021), see ECF No. 153-7; and
• 	Exhibit F: U.S. EPA, Memorandum regarding Revised Guidance on
Compiling Administrative Records for CERCLA Response Actions (dated
Sep. 20, 2010), see ECF No. 153-8 (collectively, the “Exhibits”).
II. 	LEGAL STANDARD
When an agency takes response actions and later seeks reimbursement under the
Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”),
the agency must “compile and maintain” an “administrative record” that “includes all
documents that form the basis for the selection of the response action.” 40 C.F.R.
§ 300.800. This administrative record serves as the sole basis for “judicial review of any
issues concerning the adequacy of any response action taken[.]” 42 U.S.C. § 9613(j)(1);
see also Cal. Dep’t of Toxic Substances Control v. Alco Pac., 317 F. Supp. 2d 1188, 1193
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(C.D. Cal. 2004) (explaining that, in a CERCLA case, “judicial review will be limited to
the administrative record”). Limiting judicial review to the administrative record is
consistent with the congressional intent behind § 113(j)(1), which was enacted to make
CERCLA litigation more efficient. See Cal. Dep’t of Toxic Substances Control v. NL
Indus., Inc., 785 F. Supp. 3d 629, 641 (C.D. Cal. 2025) (“Limiting judicial review of
response actions to the administrative record also expedites the process of review, avoids
the need for time-consuming and burdensome discovery, and assures the reviewing court’s
attention is focused on the information and criteria used in selecting the response.”). “Thus,
as a general rule, information created or discovered after an agency has made a decision
will not be considered,” including “documents, deposition testimony, and expert opinions
generated during the course of litigation.” United States v. Iron Mountain. Mines, Inc., 987
F. Supp. 1250, 1260 (E.D. Cal. 1997).
Still, 	CERCLA 	explicitly 	provides 	that 	“[o]therwise 	applicable 	principles 	of
administrative law shall govern whether any supplemental materials [outside of the
Administrative Record] may be considered by the court.” 42 U.S.C. § 9613. General
principles of administrative law permit expansion of the administrative record in four
narrowly construed circumstances: “(1) supplementation is necessary to determine if the
agency has considered all factors and explained its decision; (2) the agency relied on
documents not in the record; (3) supplementation is needed to explain technical terms or
complex subjects; or (4) . . . bad faith on the part of the agency.” Fence Creek Cattle Co.
v. United States Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010). “The party challenging
the 	adequacy 	of 	the 	administrative 	record 	. 	. 	. 	has 	the 	burden 	of 	showing 	that
supplementation is warranted.” Iron Mountain, 987 F. Supp. at 1260.
Courts presume that an “agency properly designated the [a]dministrative [r]ecord
absent clear evidence to the contrary,” and therefore “a court reviewing an agency’s action
may examine extra-record evidence only in limited circumstances that are ‘narrowly
construed and applied.’” Goffney v. Becerra, 995 F.3d 737, 747–48 (9th Cir. 2021)
(quotations omitted).
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III. 	DISCUSSION
In support of its request, the City primarily argues that the Navy failed “to
investigate, sample, and test for the likely presence of perfluorinated compounds”
(“PFAS”). See Mot. at 2. However, the City does not show how this purported failure fits
within the four limited circumstances that permit expanding the administrative record nor
cite case law to support its request. See generally Mot.
First, the City does not advance any arguments showing that the Exhibits are
necessary to determine whether the Navy considered all the relevant factors or fully
explained its decision. See generally Mot. For example, PFAS was not designated as a
hazardous substance under CERCLA until 2024, more than seven years after the final
Record of Decision and Remedial Action Plan (“ROD”) was issued in March 2017. See
ECF No. 162-1 at 9; 89 Fed. Reg. 39124 (May 8, 2024) (classifying PFAS as a hazardous
substance). Yet the City fails to articulate how or why each of the Exhibits, most of which
post-date the ROD and/or concern PFAS, relate to the factors that the Navy considered in
selecting the remedial action plan for the Boat Channel or are explanatory of the
information originally before the Navy.
Rather, it is evident that the City wishes to use the subsequent classification of PFAS
as a hazardous substance as a new basis to challenge the adequacy of the Navy’s remedial
actions of the Boat Channel. See, e.g., Mot. at 8–9 (“With respect to PFAS at the Boat
Channel, the Navy failed to address it as a pollutant and contaminant and now refuses to
address it as a hazardous substance. . . . Inclusion of these matters in the AR will provide
the court with the opportunity to evaluate the adequacy, accuracy, and protectiveness of
the Navy’s activities.”). Such use is impermissible and fails to provide a basis for
supplementing the administrative record. See, e.g., Ctr. for Biological Diversity v. United
States Fish & Wildlife Serv., 450 F.3d 930, 943–44 (9th Cir. 2006) (holding that it was
impermissible to use post-decision documents to establish a new rationale for attacking the
Service’s decision). And contrary to the City’s assertion, Tri-Valley CAREs v. U.S. Dep’t
of Energy, 671 F.3d 1113 (9th Cir. 2012), does not stand for the proposition that
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“supplementation of the AR is required when new significant evidence or circumstances
appear.” ECF No. 171 at 2. Instead, the Ninth Circuit’s ruling in Tri-Valley is clear that
new, post-decisional information, like the kind the City wishes to introduce here, cannot
be used to attack an agency’s decision. See Tri-Valley, 671 F.3d at 1130–31 (holding that
the district court did not abuse its discretion in refusing to supplement the record with a
report created two years after litigation began because it was not being used to determine
whether the agency considered the relevant factors but rather challenge the adequacy of the
agency decision post hoc); see also Asarco, Inc. v. U.S. Env’t Prot. Agency, 616 F.2d 1153,
1160 (9th Cir. 1980) (“Consideration of the [extra-record] evidence to determine the
correctness or wisdom of the agency’s decision is not permitted, . . .”).
Second, the City does not contend or otherwise show that the Navy relied on the
Exhibits in selecting the remedy in the ROD. See generally Mot.; see also Iron Mountain,
987 F. Supp. at 1262 (holding that because defendants did not show that the EPA relied on
the 	extra-record 	communications 	in 	selecting 	remedies, 	supplementation 	was 	not
warranted). Nor does the City show that the Exhibits are necessary to explain any technical
terms or complex subject matter involved in the Navy’s decision. See generally Mot. For
instance, while Exhibits A, B, C, and D provide information on PFAS, the City does not
identify a specific complex or technical issue in the administrative record that can only be
explained by supplementing the record with these documents. See Iron Mountain, 987 F.
Supp. at 1262 (denying motion to supplement, in part, because defendant did not show any
complex or technical issue that could only be explained by the supplemental materials).
The City also does not argue or otherwise demonstrate that the Navy acted in bad
faith when creating its remedial action plan. See generally Mot. To establish bad faith, the
City must make a “strong showing” that the Navy “engaged in wilful misconduct.” Iron
Mountain, 987 F. Supp. at 1260. While the City argues that the Navy purportedly had a
duty to investigate and sample the Boat Channel for PFAS, see Mot. at 2, PFAS was not a
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CERCLA hazardous substance when the Navy selected a remedial action plan. See 89 Fed.
Reg. 39124 (May 8, 2024). And the City offers no evidence of willful misconduct.
Moreover, the City asks the Court to supplement the administrative record with post-
decisional information.1 See ECF No. 1 at 7. Critically, while CERCLA may permit
expansion of the administrative record in limited circumstances, “exceptions to the normal
rule regarding consideration of extra-record materials only appl[y] to information available
at the time, not post-decisional information.” Tri-Valley, 671 F.3d at 1130 (quoting Rock
Creek Alliance v. U.S. Fish & Wildlife Serv., 390 F. Supp. 2d 993, 1002 (D. Mont. 2005))
(internal quotations omitted). “[P]ost-decisional information ‘may not be advanced as a
new rationalization either for sustaining or attacking an agency’s decision’ because ‘it
inevitably leads the reviewing court to substitute its judgment for that of the agency.’” Tri-
Valley, 671 F.3d at 1130–31 (quoting Ctr. for Biological Diversity, 450 F.3d at 943), but
see Ass’n of Pac. Fisheries v. EPA, 615 F.2d 794, 811 (9th Cir. 1980) (allowing limited
use of post-decisional studies to clarify or explain the original information before the
deciding agency).
Here, the City fails to expressly acknowledge that several of the Exhibits represent
post-decisional information that was not available to the Navy at the time of the ROD.
More importantly, the City fails to specify how the post-decisional information it wishes
to introduce into the administrative record clarifies or explains information originally
before the Navy. Instead, as already discussed, it is evident the City intends to use the
Exhibits to advance a substantive rationale for attacking the Navy’s decisions of the Boat
Channel. Under these circumstances, the Court sees no appropriate basis for supplementing
the administrative record with post-decisional information.
Lastly, in a final effort to add the Exhibits to the administrative record, the City
highlights its breach of contract claim and argues that the Exhibits are relevant to show that
1 Five of the six Exhibits post-date the ROD, which is dated March 28, 2017.
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“the United States has not satisfied its contractual obligations.” See ECF No. 171 at 2.
Thus, according to the City, the purpose of the Exhibits is not to challenge “the United
States’ work under CERCLA.” Id. Nonetheless, the City readily admits that the Exhibits
“may undermine the adequacy of the United States’ investigation and remediation efforts”
and represent “relevant and credible evidence that demonstrates . . . inconsistency with the
[National Contingency Plan].” Id. Given these statements, it is difficult to see how the
Exhibits will not be used to attack the Navy’s ROD and resulting remedial actions.
In sum, the City cites no case law and advances no arguments showing that each of
the Exhibits falls within the four limited exceptions that permit the Court to consider this
extra-record evidence. As such, the City fails to meet its burden of demonstrating that
supplementation of the administrative records is justified.
IV. 	CONCLUSION
For the reasons set forth above, the City of San Diego’s Motion to Supplement the
Administrative Record is DENIED.
IT IS SO ORDERED.
Dated: March 19, 2026
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