The U.S. District Court for the District of Rhode Island has agreed with a PRP that portions of a Unilateral Administrative Order (UAO) for cleanup of the Centredale Manor Restoration Project Superfund Site in North Providence, Rhode Island were arbitrary and capricious. Emhart Industries, Inc. v. New England Container Company, Inc., et al, (August 17, 2017). Although normally, review of a UAO is confined to the administrative record, the Court agreed with a PRP that refused to comply with the UAO that expert testimony outside the administrative record should be considered. After considering the outside expert testimony, the Court concluded (i) the UAO was arbitrary and capricious in classifying site groundwater as a potential future drinking water source without sufficient information to support a finding that restoration of the groundwater is “practicable” and that the remedy will effectively restore the groundwater to drinking water; and (ii) the UAO was arbitrary and capricious in relying on a non-representative sampling to determine that no largemouth bass were consumed from contaminated waters on the site. The case is significant because invalidation of a UAO by a court is rare, and because it is even more rare for a court to consider evidence outside the administrative record in doing so.
For more information on the Emhart Industries case or on Superfund UAOs generally, contact Steve O’Day.