The opinion of the court was delivered by: Reggie B. Walton United States District Judge
These consolidated cases are currently before the Court on two motions: (1) the Plaintiffs' Joint Motion to Complete and Supplement the Record ("Pls.' Mot."), and (2) the federal defendants' Motion to Strike ("Defs.' Mot."). The plaintiffs request that the Court order the defendants to "complete . . . and/or supplement the [administrative] record," Pls.' Mot. at 1, while the defendants assert that it should not be required to add the documents in question to the administrative record or otherwise considered by the Court and request that those documents be stricken from the plaintiffs' December 22, 2011 Joint Motion for Partial Summary Judgment. For the reasons that follow, both parties' motions will be granted in part and denied in part.*fn1
On July 20, 2010, plaintiff National Mining Association ("NMA") filed its complaint seeking declaratory and injunctive relief against multiple federal defendants. The complaint, brought pursuant to Section 702 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 (2006), challenged two Environmental Protection Agency ("EPA") Memoranda: the June 11, 2009 Enhanced Coordination Process ("EC Process") memoranda, including the Multi-Criteria Integrated Resources ("MCIR") Assessment, and the April 1, 2010 Interim Detailed Guidance Memorandum. Compl. ¶¶ 2, 60-66, 72-90. On January 14, 2011, the Court denied the NMA's motion for a preliminary injunction and denied the federal defendants' motion to dismiss. After that ruling, four cases pending in United States District Courts in Kentucky and West Virginia were transferred to this Court and consolidated with the case that had been filed by the NMA in this Court. The parties proposed, and the Court accepted, a bifurcated briefing schedule as to the two challenged EPA Memoranda. On July 21, 2011, the EPA issued its Final Guidance, mooting all motions that had been filed in regard to the Interim Guidance that had been issued by the EPA. The Court directed the plaintiffs to file amended complaints and entered a new briefing schedule in regard to their challenge to the EPA's Final Guidance. On October 6, 2011, the Court granted the plaintiffs summary judgment as to the EC Process and the MCIR Assessment, concluding that they constituted unlawful agency actions, having been issued in violation of the APA. Cross-motions for summary judgment as to the Final Guidance have now been filed, but are not yet ripe for decision.*fn2
The two motions currently before the Court concern the same documents. These following twelve documents, which the plaintiffs ask be made part of the administrative record, were submitted with the plaintiffs' motion: (1) Permitting Procedures for Determining 'Reasonable Potential', authored by the Kentucky Natural Resources and Environmental Protection Cabinet, Division of Water, dated May 1, 2000; (2) Letter from EPA employee Douglas F. Mundrick, to R. Bruce Scott, Kentucky Division of Water ("KDOW") employee, dated July 7, 2000; (3) Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated December 21, 2009, commenting on proposed National Pollutant Discharge Elimination System ("NPDES") Draft Permit for Premier Elkhorn Coal Company; (4) E-mail from EPA employee Chris Thomas to KDOW employe Sandy Gruzesky, dated December 21, 2009; (5) E-mail from EPA employe Sharmin Syed, to KDOW employee R. Bruce Scott, dated November 5, 2010 and attached spreadsheet; (6) E-mail and attached spreadsheet from KDOW employee R. Bruce Scott, to EPA employees Stan Meiburg, Jim Giattina, Chris Thomas et al., dated January 10, 2011; (7) E-mail and attached spreadsheet from KDOW employee R. Bruce Scott, to EPA employees Stan Meiburg, Jim Giattina, Chris Thomas et al., dated January 12, 2011; (8) E-mail from EPA employee Chris Thomas, to KDOW employee Sandy Gruzesky, dated March 10, 2011; (9) Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated September 28, 2011; (10) Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated September 28, 2011; (11) Affidavit of KDOW employee R. Bruce Scott; and (12) Letter from NPDES Branch, EPA Region III employee Evelyn S. MacKnight, to Division of Mining & Reclamation, West Virginia Department of Environtmental Protection ("WVDEP") employee Jeffrey Parsons, dated November 20, 2011. Pls.' Mem., Exhibit ("Ex.") 2. The defendants agree that the exhibits they move to strike from the plaintiffs' motion for summary judgment "are the same as the documents identified in Exhibit A of the Joint Motion [to Correct or Supplement the Administrative Record]."*fn3 Defs.' Mem. at 1-2.
The plaintiffs advance three arguments as to why the documents in question should be added to the administrative record or considered by the Court as extra-record evidence. First, they maintain that several of the documents are "material documents which are clearly relevant" to the issues addressed in the Final Guidance and "which predate the issuance of the Final Guidance." Pls.' Mem. at 9. The plaintiffs further note that the documents that predate the Final Guidance, "were all either authored by [the] EPA or within its files at the time the Final Guidance was issued." Id. at 13. They thus contend that "all such relevant documents before [the] EPA at the time of the Final Guidance should have made their way into the Administrative Record." Id. Second, the plaintiffs argue that because they "challenge both the new standards announced in the Final Guidance, as well as the fact that the EPA has applied the Final Guidance in an arbitrary and capricious manner," Pls.' Reply at 8, the EPA's "actions are not adequately explained by the record, as there is nothing in the record that post-dates the Final Guidance or that relates to its application," Pls.' Mem. at 16, 19. Third, the plaintiffs assert that the Court may take judicial notice of the EPA-authored documents, "whose authenticity and contents are not in dispute." Id. at 19.
The defendants counter all of the plaintiffs' arguments for supplementation of the administrative record or the Court's consideration of extra-record evidence. First, the defendants argue that it is "not sufficient to simply assert that the documents are relevant and were in the possession of the agency at the time it made its decision." Defs.' Mem. at 5. Rather, they claim, the plaintiffs must demonstrate that the documents were actually considered by the agency but not included in the record. Id. They further maintain that none of the documents that predate the Final Guidance are "independently relevant" to the Final Guidance. Id. at 6. Second, the defendants contend that the plaintiffs have not established the exceptional circumstances necessary to warrant the consideration of extra-record evidence. Id. at 7. Third, the defendants assert that because the Court's review of the agency action under the APA is not an evidentiary proceeding, the Federal Rule of Evidence permitting the Court to take judicial notice is not applicable. The Court will reach the parties arguments after briefly setting forth the standard of review applicable to the pending motions.
When reviewing agency actions under the APA, the Court's review is limited to the administrative record, either "the whole record or those parts of it cited by a party." 5 U.S.C. § 706(2)(F). Because administrative records are presumed complete, motions to supplement the record are granted only in limited circumstances. Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010). Accordingly, it is only in rare circumstances that a court will consider extra-record evidence in reviewing agency actions. Franks v. Salazar, 751 F. Supp. 2d 62, 67 (D.D.C. 2010) (citing Fl. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985)).
"There is a standard presumption that the [administrative] agency properly designated the [a]dministrative [r]ecord." Calloway v. Harvey, 590 F. Supp. 2d 29, 37 (D.D.C. 2008) (citing Amfac Resorts, L.L.C v. Dep't of Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001)) (internal quotations omitted). "The administrative record includes all materials compiled by the agency that were before the agency at the time the decision was made." James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (citations and internal quotations omitted). The agency must compile for the Court all of the information that was either directly or indirectly considered in reaching its decision, Amfac Resorts, 143 F. Supp. 2d at 12, and the Court should consider only what was actually before the agency at the time of the decision, IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997)).
Supplementation of the record is appropriate in three circumstances: "(1) if the agency deliberately or negligently excluded documents that may have been adverse to its decision, (2) if background information was needed to determine whether the agency considered all the relevant factors, or (3) if the agency failed to explain administrative action so as to frustrate judicial review." City of Dania Beach v. F.A.A., 628 F.3d 581, 590 (D.C. Cir. 2010) (citing Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008)) (internal quotation marks omitted)). To rebut the presumption of regularity, the party seeking supplementation must "put forth concrete evidence that the documents it seeks to 'add' to the record were actually before the decisionmakers." Marcum v. Salazar, 751 F. Supp. 2d 74, 78 (D.D.C. 2010). Conclusory statements will not suffice; rather, the plaintiff "must identify reasonable, non-speculative grounds for its belief that the documents were considered by the agency and not included in the record." Id. (quoting Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Eng'rs, 448 F. Supp. 2d 1, 6 (D.D.C. 2006) (internal quotation marks omitted). If a party can present such proof showing that an agency "did not include materials that were part of its record, whether by design or accident, then supplementation is appropriate." Id.; see also Natural Res. Def. Council, Inc. v. Train, 519 F.2d 287, 292 (D.C. Cir. 1975) (holding that review of a "partial and truncated record" by the district court was error, and remanding the case for review "on the entire administrative record").
A separate standard governs judicial consideration of extra-record evidence, which "consists of evidence outside of or in addition to the administrative record that was not necessarily considered by the agency." Calloway, 590 F. Supp. 2d at 38 (internal quotation marks omitted). In Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989), the District of Columbia Circuit stated that extra-record evidence was reviewable if it fell within one of eight exceptions.*fn4
Since then, the Circuit appears to have narrowed these exceptions to four: (1) when the agency failed to examine all relevant factors; (2) when the agency failed to explain adequately its grounds for its decision; (3) when the agency acted in bad faith; or (4) when the agency engaged in improper behavior. See IMS, P.C., 129 F.3d at 624; see also Cape Hatteras Access Pres. Alliance v. U.S. Dep't of Interior, 667 F. Supp. 2d 111, 115-16 (D.D.C. 2009) (noting the narrowing of the Esch exceptions). "Underlying all of these exceptions is the assessment that 'resort to extra-record information [is necessary] to enable judicial review to become effective.'" Calloway, 590 F. Supp. 2d at 38 (quoting Esch, 876 F.2d at 991).
These exceptions are to only be applied in limited circumstances, see Calloway, 590 F. Supp. at 38, and "in order to invoke one of these exceptions, a party seeking a court to review extra-record evidence must first establish that the agency acted in bad faith or otherwise behaved improperly, or that the record is so bare that it prevents effective judicial review," County of San Miguel v. Kempthorne, 587 F. Supp. 2d 64, 79 (D.D.C. 2008) (internal quotations omitted) (citing Fund for the Animals v. Williams, 245 F. Supp. 2d 49, 57-58 (D.D.C. 2003)); see also Theodore Roosevelt Conservation P'ship, 616 F.3d at 514-15. The applicability of the exceptions, however, is at its zenith when extra-record evidence is needed to facilitate examination of the procedural soundness of an ...