The opinion of the court was delivered by: Judge Sylvia H. Rambo
Presently before the court is Plaintiffs' motion to complete the administrative record. (Doc. 82.) Plaintiffs are seeking to supplement the administrative record with certain documents that they believe are relevant to the underlying challenged action relating to the issuance of the Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus and Sediment ("TMDL"). Those documents include email correspondence as well as an Agricultural Nutrient Policy Council report ("ANPC Report"). Plaintiffs are also requesting leave to conduct discovery to identify any additional documents that should be added to the administrative record. The motion has been fully briefed and is ripe for disposition. For the reasons set forth below, the motion will be granted in part and denied in part.
Plaintiffs filed their initial complaint on January 10, 2011, (Doc. 1), followed by an amended complaint (Doc. 16) challenging the United States Environmental Protection Agency's ("EPA's") Chesapeake Bay TMDL. Plaintiffs are seeking declaratory and injunctive relief against EPA, requesting that the court vacate the TMDL. Plaintiffs allege that EPA lacked authority under the Clean Water Act to issue the TMDL; the TMDL was arbitrary and capricious; EPA failed to provide adequate public notice and comment on the TMDL in violation of the Administrative Procedures Act ("APA"); and the TMDL is ultra vires.*fn1
On September 1, 2011, EPA filed a notice of lodging the administrative record and a certified index to the record. (Doc. 77.) Copies of the administrative record were sent to the court and the parties.
On October 13, 2011, the court granted three motions for leave to intervene as party defendants filed by various public interest and municipal groups. (Doc. 87.)
On October 11, 2011, Plaintiffs filed the present motion to complete the administrative record and brief in support. (Docs. 82 & 85.) Briefs in opposition were filed by Defendant EPA (Doc. 88) and Defendant-Intervenors (Doc. 89) on October 28, 2011. A reply brief was filed on November 14, 2011. (Doc. 91.) Thus, the motion is ripe for disposition.
Plaintiffs argue for the inclusion of certain EPA email correspondence and an ANPC Report in the administrative record. Plaintiffs argue that these documents were before EPA at the time it was drafting the Bay TMDL and they were also considered by EPA during the drafting process, thus making them appropriate for inclusion in the administrative record. In response, EPA and Defendant-Intervenors argue primarily that these documents were not relevant to the final TMDL and, thus, were properly excluded from the administrative record. The court will examine each document and the parties' respective arguments in more detail below, but first a threshold determination must be made regarding the propriety of supplementing, or completing, the administrative record.
A challenge to an administrative action under the APA raises a unique set of issues. First, when reviewing the propriety of an agency action, the court is required to apply the familiar "arbitrary and capricious" standard from the APA. Section 706 of the APA provides that:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall --
(2) hold unlawful and set aside agency action, findings, and conclusions found to be--
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
5 U.S.C. § 706. This standard requires the court to walk a fine line of conducting a "searching and careful" inquiry into the administrative record to determine whether the agency's decision was "based on a consideration of the relevant factors and whether there has been a clear error of judgment" while, at the same time, refraining from substituting its own judgment for that of the agency. Citizens Advisory Comm. on Private Prisons v. Fed. Bur. of Prisons, 197 F. Supp. 2d 226, 240 (W.D. Pa. 2001) (quoting Citizens to Protect Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17 (1971) and Soc'y Hill Towers Owners' Assoc. v. Rendell, 201 F.3d 168, 178 (3d Cir. 2000)).
To conduct an effective judicial review of an agency action, a court must have at its disposal "the whole record or those parts of it cited by a party." 5 U.S.C. § 706. The Supreme Court, in its seminal Overton Park decision, clarified that judicial review "is to be based on the full administrative record that was before the [agency] at the time it made its decision." 401 U.S. at 420. Therefore, it follows that a reviewing court cannot consider matters not before the agency. Nor can the court engage in a de novo review, absent extraordinary circumstances not applicable here.*fn2 It has been repeatedly stated that "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." United States v. Keystone Sanitation Co., 1996 U.S. Dist. LEXIS 22808, *10 (M.D. Pa. Aug. 27, 1996) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)). The "whole record" consists of materials either directly or indirectly considered by the decision maker. Keystone Sanitation, 1996 U.S. Dist. LEXIS 22808, *23 n.6 (citing Wade v. Dole, 631 F. Supp. 1100, 1107 (N.D. Ill. 1986), aff'd 813 F.2d 798 (7th Cir. 1987)); see also Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993); Ohio Valley Envt'l Coalition v. Whitman, 2003 U.S. Dist. LEXIS 148, *8 (S.D. W.Va. Jan. 6, 2003).
Because the court is reviewing an agency's decision, the agency is rightly tasked with the burden of preparing the record consisting of those documents that it "directly or indirectly considered" in making that decision. If an agency certifies that the administrative record is full and complete, the court "assumes that the agency properly designated the Administrative Record absent clear evidence to the contrary." Citizens Advisory Comm., 197 F. Supp. 2d at 240 (quoting Bar MK Ranches, 994 F.2d at 740). Here, EPA filed an administrative record that includes documents it considered in making its decisions related to pollution limits set forth in the Bay TMDL. (Doc. 77.) EPA subsequently agreed to supplement the record with additional documents, at Plaintiffs' request, that it admits were erroneously or inadvertently omitted from the record. EPA has otherwise certified that the record in this case is true and correct. Thus, the court will assume, absence a clear showing to the contrary, that the record is complete.
However, notwithstanding this presumption in favor of EPA, EPA does not have complete control over the contents of the administrative record. Indeed, "the whole administrative record . . . is not necessarily those documents that the agency has compiled or submitted as 'the' administrative record." Ohio Valley, 2003 U.S. Dist. LEXIS 148, *8 (quoting Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (9th Cir. 1989)). Restricting judicial review to whatever documents an agency submits "would permit an agency to omit items that undermin[e] its position." Id. (citing Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)). Accordingly, the courts must engage in an appropriate review to ensure that the full and complete administrative record has been submitted. See Int'l Longshoreman's Assoc. v. Nat'l Mediation Bd., 2006 U.S. Dist. LEXIS 4080, *7 (D.C. Cir. Jan. 25, 2006) ("It is improper for a district court to review only a 'partial and truncated [administrative] record.'" (quoting Natural Res. Def. Council, Inc. v. Train, 519 F.3d 287, 291 (D.C. Cir. 1975))).
Because judicial review is limited to the administrative record, there are only few instances where a court is justified to look beyond the administrative record. As this court noted in United States v. Keystone Sanitation Co., Inc., such justifications may occur where:
(1) judicial review is impeded because the record fails to explain the agency's action, [citing Camp, 441 U.S. at 142-43]; (2) the record is incomplete, [citing Texas v. Steel Co., 93 F.R.D. 619, 621 (N.D. Tex. 1982)]; (3) the agency failed to consider all relevant factors, [citing Florida Power & Light Co., 470 U.S. at 744]; or (4) there is a strong showing that the agency engaged in improper behavior or acted in bad faith, [citing Volpe, 401 U.S. 420]. 1995 U.S. Dist. LEXIS 22371, *11 (M.D. Pa. July 31, 1995). Plaintiffs here are arguing that the record is incomplete.
EPA argues that adding the suggested documents to the administrative record would be improper because Plaintiffs failed to show bad faith on behalf of EPA. (Doc. 88 at 13-21 of 29.) However, several courts have recognized a distinction between a motion to complete the administrative record and a motion to supplement the administrative record. See Ohio Valley, 2003 U.S. Dist. LEXIS 148, *10 (noting that "plaintiffs do not seek to supplement the administrative record in the sense of adding documents to the record that were neither before the agency nor considered in the decision-making process . . . . Instead, the plaintiffs contend that the EPA has not submitted to the court all of the materials that properly constitute the complete administrative record"); Miami Nation of Indians v. Babbitt, 979 F. Supp. 771, 777, 781 (N.D. Ind. 1996) (directing the government to complete the record with various materials and explaining that the plaintiff "correctly ...