criticized EPA's human health data during the
comment period. As a result, they say, these untimely comments were
correctly excluded from the administrative record. Def. Opp. at 19.
Defendants further argue that the comments were excluded from the record
because the comments presented "neither relevant, nor significant new
issues" that warranted consideration. Id.
As the Court has stated, the late submission of comments does not
always justify their exclusion from the administrative record. Here, EPA
attended a meeting hosted in August by the Office of Management and
Budget directly relating to the TRI lead rule during the period of
interagency review and several months prior to issuance of the final
rule. See Def. Opp. at 19. Industry representatives at the meeting raised
concerns about the human health data relied upon by EPA in formulating
the TRI lead rule and those same concerns were memorialized in the Luxton
letter and Boreiko comments. EPA later responded to those concerns in a
memorandum to the docket supporting the TRI lead rulemaking. See Pl. Ex.
E, Memorandum from Stephen C. DeVito, TRI to OPPTS Docket, February 21,
2001, at 1-2 ("DeVito Memo"). Whatever EPA's ultimate evaluation of the
concerns raised at the August 23, 2000 meeting and reiterated in
December, the Court finds it reasonable to conclude that EPA considered
these issues during the period of interagency review, prior to issuance
of the final rule. While EPA's memorandum to the docket is addressed only
to the December 5, 2000 submission and states that it was developed
solely "for information purposes," the December comments attached to Ms.
Luxton's letter were made by the same parties present at the August 23
meeting and raised the same concerns regarding human health data
underlying the TRI lead rule. See DeVito Memo at 1-2. EPA's memorandum to
the docket therefore can be seen as a direct response to the August 23,
In addition, e-mails exchanged among EPA officials demonstrate that EPA
did consider (albeit negatively) the concerns raised at the August 23
meeting and in the December 5 letter and comments prior to issuance of
the final TM lead rule. See, e.g., Pl. Ex. F, December 7, 2000 E-mail
from Daniel Bushman to Maria Doa et al., (forwarding "some responses to
the issues that Dr. Borciko [of the International Lead Management
Center, an industry group] raised concerning human bioaccumulation of
lead at the OMB/Industry meeting back in August."). Furthermore, the
Court notes that EPA included in the administrative record materials from
its post-comment period meeting with U.S. PIRG, a public interest
research group. Inclusion of those materials cannot be reconciled with
EPA's retrial to include the December 5 letter and comments related to
its August meeting with plaintiffs. See Pl. Mot. at 17; Def. Opp. at 18.
Because the comments made at the August 23, 2000 meeting were
considered by EPA officials prior to issuance of the final TM lead rule,
and because analogous materials from a similar meeting were included in
the record, the Court finds that the comments submitted at the August
23, 2000 meeting, as memorialized in the follow-up submissions by Jane
Luxton and Craig Boreiko on December 5, 2000, should be added to the
administrative record. See Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. at 420; Esch v. Yeutter, 876 F.2d 976, 991
(supplementation appropriate when "an agency considered evidence which it
failed to include in the record").
2. Category II Documents (Government Agency Documents)
In accordance with Executive Order 12866, EPA submitted its proposed
lead rule for inter-agency review before promulgation of the final
rule.*fn7 Plaintiffs claim that the application of PBT criteria to
metals was a "critical" issue in the inter-agency review, but that all
the documentation relating to these matters has been omitted from the
administrative record. See Pl. Mot. at 21. Plaintiffs assert that
defendants excluded these relevant inter-agency documents solely because
they are adverse to EPA's position. Id. at 22. Defendants counter that
the documents exchanged during the inter-agency review added no new
factual material to the debate. Def. Opp. at 25, 26.
This Court sees no justification for including the majority of these
documents because, as plaintiffs' own motion reflects, EPA did include a
number of documents bearing striking similarities to those excluded. See
Pl. Mot. at 22-23. While plaintiffs demand inclusion of these documents
because their exclusion implicates arbitrary action, mere exclusion of
relevant documents does not necessarily require supplementation of the
record. See Carlton v. Babbitt, 26 F. Supp.2d at 107-08. Where an agency
has considered an issue and included relevant material in the record,
supplementation with similar or identical documents is not always
required. See id. Here, plaintiffs have failed to present any evidence
that different opinions were offered or different issues were raised in
the excluded documents. Indeed, plaintiffs openly admit that the
documents are "identical in nature" to those already in the record. Pl.
Mot. at 22.
This Court, however, will supplement the record with one document from
Category II, namely a report by the General Accounting Office entitled:
Regulatory Flexibility Act: Implementation in EPA Program Offices and
Proposed Lead Rule. Pl. Ex. G 18.*fn8 This publicly available report,
which addresses certain economic issues pertaining to the lead rule,
responds directly to an EPA request for review of surrounding issues.
Id. at 1. Publicly available reports, especially those relating to
relevant issues and drafted as a result of an agency request, should be
considered by the agency and therefore should be included in the
administrative record. See Carlton v. Babbitt, 26 F. Supp.2d at 107. In
any event, defendants do not object to the inclusion of this report. See
Def. Opp. at 14.
3. Category III Documents (Internal Agency Documents)
Plaintiffs also seek to supplement the record with a number of internal
EPA e-mails exchanged throughout the lead rulemaking process. Most of
these e-mails were sent and received after the close of the comment
period but prior to promulgation of the final rule. Because these e-mails
were considered by EPA and are adverse to the final rule, plaintiffs
that inclusion is justified. See Pl. Mot. at 23-24. Defendants
argue that inclusion of these internal discussions runs counter to the
case law holding that the administrative record should not include or be
supplemented by deliberative materials. See Def. Opp. at 20-21.
Judicial review of agency action should be based on an agency's stated
justifications, not the predecisional process that led up to the final,
articulated decision. See PLMRS Narrowband Corp. v. FCC, 182 F.3d 995,
1001 (D.C. Cir. 1999); Lo Shippers Action Committee v. Interstate
Commerce Commission, 857 F.2d 802, 805-06 (D.C. Cir. 1988); Kansas State
Network, Inc. v. Fed. Communications Comm'n, 720 F.2d 185, 191 (D.C.
Cir. 1983). To require the inclusion in an agency record of documents
reflecting internal agency deliberations could hinder candid and creative
exchanges regarding proposed decisions and alternatives, which might,
because of the chilling effect on open discussion within agencies, lead
to an overall decrease in the quality of decisions. See San Luis Obispo
Mothers for Peace v. Nuclear Regulatory Comm'n, 751 F.2d 1287, 1326
(D.C. Cir. 1984); cf. Jordan v. United States Dept. of Justice,
591 F.2d 753, 772 (D.C. Cir. 1978) (internal agency communications
protected from disclosure under Freedom of Information Act to "protect
creative debate and candid consideration of alternatives within
agency."). Inclusion of such internal discussion also might cause
confusion in the public sphere if everyone had access to internal
discussions before agency issues were settled. See Jordan v. United
States Dept. of Justice, 591 F.2d at 772. By maintaining the
confidentiality of pre-decisional internal opinions and discussions, the
policy of non-disclosure "protect[s] the integrity of the decisionmaking
process" and ensures that agency actions are judged based on what was
decided, not on what was considered. Id. The Court will not supplement
the record with these e-mails.*fn9
For all of these reasons, this Court finds that supplementation of the
administrative record is appropriate in this case to remedy those few
instances where EPA considered evidence but failed to include it in the
record. An Order consistent with this Opinion shall issue this same day.
For the reasons stated in the Opinion issued this same day, it is hereby
ORDERED that plaintiffs' motion to supplement the administrative record
is GRANTED in part and DENIED in part; it is
FURTHER ORDERED that defendants shall supplement the administrative
record by filing copies of (1) the transcript from the "Experts Workshop,"
(2) the December 5, 2000 comments submitted by Jane Luxton relating to the
August 23, 2000 meeting, and (3) the GAO report, Regulatory Flexibility
Act: Implementation in EPA Program Offices and Proposed Lead Rule; and it
FURTHER ORDERED that defendants shall re-certify the index after
inclusion of the above-identified documents.