United States v. Akzo Coatings Of America, Inc.

Michael Grice, Detroit, Mich., Keith J. Lerminiaux (argued), Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, Mich., for Chrysler Motors Corp.

Robert A. Emmett, Reed, Smith, Shaw & McClay, Washington, D.C., John A. Kruse, Harvey, Kruse, Westen & Milan, Detroit, Mich., for Detrex Corp.

David Matthews, Cincinnati, Ohio, for Fabricon Automotive Products.

Frank S. Galgan, Troy, Mich., for Federal Screw Works.

Mark D. Edie, Dearborn, Mich., for Ford Motor Co.

David L. Tripp, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for General Motors Corp.

Melinda R. Martinson, Hoechst Celanese Corp., Sommerville, N.J., for Hoechst Celanese Corp.

Donald S. Strait (briefed), Rebecca E. Todd, Natural Resources Defense Council, Inc., New York City, for Natural Resources Defense Council, amicus curiae.

Karen Florini, Environmental Defense Fund, Inc., Washington, D.C., for Environmental Defense Fund, amicus curiae.

A. Blakeman Early, Washington, D.C., for The Sierra Club, amicus curiae.

Mark J. Rudolph, William J. Selinsky, Provizer, Eisenberg, Lichtenstein & Pearlman, Southfield, Mich., for Michigan Indus. Finishes.

Thomas W.B. Porter, David L. Tripp, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for RPM, Inc.

Thomas P. Wilczak, Barbara H. Anderson, David L. Maurer, Pepper, Hamilton & Scheetz, Detroit, Mich., for TRW, Inc. and Uniroyal, Inc.

Before JONES, Circuit Judge, ENGEL and WELLFORD,* Senior Circuit Judges.

ENGEL, Senior Circuit Judge.

This is an appeal by the State of Michigan from the entry of a consent decree between the United States Environmental Protection Agency ("EPA") and twelve defendants1 pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. § 9601 et seq. The consent decree would require the defendants, or potentially responsible parties ("PRPs"), to engage in remedial work to clean up a hazardous waste site in Rose Township, Oakland County, Michigan ("Rose Site"). The proposed remedial plan at the Rose Site calls for the excavation and incineration of surface soils contaminated with polychlorinated biphenyls ("PCBs"), lead, arsenic and other toxic materials and the flushing of the subsurface soils contaminated with a variety of volatile and semi-volatile organic compounds.

The state challenges the legality of the remedial action, and seeks to prevent entry of the consent decree. The Natural Resources Defense Council, the Environmental Defense Fund and the Sierra Club have filed a brief as amici curiae supportive of the state's position. The majority of the state's and amici's objections to the decree focus on the effectiveness of soil flushing at the Rose Site, where layers of clay are interspersed among beds of sand and silt. The PRPs cross appeal the district court's determination that the decree must comply with Michigan's groundwater anti-degradation law.

By the late 1970s, Congress concluded that existing cleanup programs were inadequate to the task of taking care of literally thousands of sites across the country posing a serious threat to public health and the environment. Consequently, in 1980, Congress enacted CERCLA, also known as "Superfund," to ensure prompt and efficient cleanup of hazardous waste sites and to place the costs of those cleanups on the PRPs. See S.Rep. No. 848, 96th Cong., 2d Sess. 98, reprinted in, 1 Cong. Research Serv., 97th Cong., 2d Sess., A Legislative History of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (Superfund), at 405 (1980).

Throughout the 1980s, the Superfund hazardous waste cleanup program enjoyed centerstage prominence in environmental law. Nevertheless, the early years of CERCLA were difficult. CERCLA was a hastily-assembled bill which contained a number of technical flaws due to Congress' limited understanding of the hazardous waste problem and its effects on the environment. See Grad, A Legislative History of the Comprehensive Environmental Response, Compensation and Liability ("Superfund") Act of 1980, 8 Colum.J.Envtl.L. 1, 2, 34 (1982). Both Congress and EPA, for example, believed in the late 1970s that a site could be adequately cleaned up by "scraping a few inches of soil off the ground." H.R.Rep. No. 253, 99th Cong., 2d Sess., pt. 1, at 54 (1986), reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2836. Congress also grossly underestimated the number of sites requiring cleanup and the monies necessary to remedy the problem. Compare id. with H.R.Rep. No. 1016, 96th Cong., 2d Sess., pt. 1, at 18-20 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 6119, 6120-23. EPA, as the delegatee of the President's authority under CERCLA, 42 U.S.C. § 9615, was criticized for the slow pace of cleanups, for failing to provide remedies that would protect public health and the environment, and for alleged "sweetheart" deals that reduced cleanup costs for industry at public expense. As a result, in 1986 Congress passed SARA, which reauthorized and amended CERCLA in several important ways. Congress sought to better define cleanup standards, to expand resources available to EPA for investigations and cleanups, to clarify EPA's authority under Superfund law, and to expand and clarify the states' role in any remedial action undertaken, or ordered, by EPA.

CERCLA applies "primarily to the cleanup of leaking inactive or abandoned sites and to emergency responses to spills." F. Anderson, D. Mandelker & A. Tarlock, Environmental Protection Law and Policy 568 (1984). The Act directs EPA to develop a National Priorities List ("NPL") for response priority purposes. 42 U.S.C. § 9605(a). After a site is placed on the NPL, a Remedial Investigation and Feasibility Study ("RI/FS") is performed to define the nature and extent of the threat posed by the release and to evaluate proposed remedies. 42 U.S.C. §§ 9604, 9622; 40 C.F.R. § 300.68(d). Once EPA determines under CERCLA that a response action is needed at a particular hazardous waste site, it must publish a proposed remedial action plan ("RAP") and provide an opportunity for comment. 42 U.S.C. § 9617. EPA then issues a Record of Decision ("ROD") setting forth the remedy selected for the site, including remedial technologies and cleanup standards. 42 U.S.C. § 9617.

In implementing its RAP, EPA may pursue one of three possible courses of action. See generally Koppers Indus., Inc. v. EPA, 902 F.2d 756, 757 n. 1 (9th Cir.1990) (discussing the various options). EPA may undertake a response measure on its own, which may include removal and/or remedial action,2 and then sue PRPs it can find for reimbursement. 42 U.S.C. §§ 9604, 9607. In the interim, or in the event it cannot locate any PRPs or they cannot be made to pay the cleanup costs, the government-initiated cleanup may be financed by the "Superfund," 42 U.S.C. § 9611, a trust fund derived from general federal revenues and an excise tax on specified chemicals. See 42 U.S.C. § 9631. Secondly, EPA may, independent of fund-financed response actions, issue an administrative order directing PRPs to implement removal or remedial action. 42 U.S.C. § 9606. Alternatively, EPA may apply to the district court for an injunction to compel PRPs to clean up or abate an actual or threatened release of hazardous substances from a facility. Id. As a third option, EPA may enter into an agreement with PRPs to perform a response action, 42 U.S.C. § 9622. Such an agreement is at issue here.

The federal legislative scheme and its history are persuasive that Congress did not intend to leave the cleanup under CERCLA solely in the hands of the federal government. CERCLA, as amended by SARA, provides a substantial and meaningful role for the individual states in the selection and development of remedial actions to be taken within their jurisdictions. In this case for example, pursuant to 42 U.S.C. § 9621(f) the State of Michigan had a reasonable opportunity to comment on the RI/FS, the RAP proposed in the amended ROD, and other technical data related to the implementation of the proposed remedy. The state was also entitled to and did participate in the settlement negotiations that led to the decree at issue. Id. Further, CERCLA is designed to accommodate more stringent "applicable or relevant and appropriate requirements" ("ARARs"), i.e. environmental standards of the state in which a site is located. 42 U.S.C. § 9621(d). Once a consent decree is proposed by EPA, see id. § 9622(a), the state can challenge it if EPA has proposed implementation of a remedy for which the federal agency has waived a valid and more stringent state requirement. Id. § 9621(d)(4), (f)(2)(B). The state may also enforce a decree to the extent the remedial action fails to comply with any state environmental requirements which have not been waived by EPA. Id. § 9621(e).

If no PRPs can be located, or if they are insolvent, a state or political subdivision may enter into a contract or cooperative agreement with EPA, whereby both may take action on a cost-sharing basis. 42 U.S.C. § 9604(c), (d). A state may also sue PRPs for remedial and removal costs if such efforts are consistent with the National Contingency Plan (NCP). Id. § 9607(a)(4)(A). However, assuming it is not the "lead" agency, the state is limited in its ability to require alternative relief if and when a consent decree is entered into between PRPs and EPA. See id. § 9621(f).

Under CERCLA, Congress expressed its preference for thorough yet cost-effective remedies at hazardous waste sites. Compare 42 U.S.C. § 9621(a) ("the President shall select appropriate remedial actions ... which provide for cost-effective response.") with 42 U.S.C. § 9621(b) ("Remedial actions in which treatment which permanently and significantly redress the volume, toxicity or mobility of the hazardous substances ... are to be preferred over remedial actions not involving such treatment."). CERCLA's statutory scheme and legislative history reflect two other principal and related concerns:

First, Congress intended that the federal government be immediately given the tools necessary for a prompt and effective response to problems of national magnitude resulting from hazardous waste disposal. Second, Congress intended that those responsible for problems caused by the disposal of chemical poisons bear the costs and responsibility for remedying the harmful conditions they created.

United States v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100, 1112 (D.Minn.1982). These concerns must be kept in mind as we analyze the challenges to the consent decree.

The Rose Site consists of about 110 acres on which liquid and solid industrial wastes were illegally dumped in the late 1960s. In 1979, the Michigan Toxic Substance and Control Commission declared a toxic substance emergency at the Site, and 5,000 drums of toxic waste were immediately removed. Investigation disclosed that the drums contained, among other chemical compounds, PCBs, phthalates, organic solvents, oil and grease, phenols and heavy metals. In 1983, the Rose Site was placed on the NPL.3

All sites placed on the NPL must undergo a Remedial Investigation and Feasibility Study ("RI/FS") to determine the extent of contamination and possible remedies. 42 U.S.C. § 9620(e)(1). Under a cooperative agreement with EPA, the Michigan Department of Natural Resources ("MDNR") began the RI/FS evaluation of the Rose Site in 1984.4 That study, completed in June of 1987, showed two primary areas of contamination: (1) an area which is less than one acre in size but contains groundwater contaminated by vinyl chloride and surface soils having elevated levels of arsenic; and (2) twelve acres in the southwest corner of the Site that contain surface soils contaminated with PCBs, lead, arsenic and other toxic metals; subsurface soils contaminated with a variety of volatile organic compounds ("VOCs") and semi-volatile organic compounds ("SVOCs"); and groundwater5 contaminated with PCBs, metals, VOCs and SVOCs.

After a detailed screening of possible remedies, the 1987 RI/FS recommended excavation and on-site thermal destruction to remedy the soil contamination,6 plus ground water treatment to cleanse the water under the Rose Site. Soil flushing, a method by which the contaminated soil is flushed with water and the resulting flushate is treated to designated cleanup levels and reinjected into the soil, was found to be ineffective at this Site due to the variable permeability of the Rose Site soils. RI/FS, Exh. 3.1a, Table 9-1, at 146.

Pursuant to section 117(a) of CERCLA, 42 U.S.C. § 9617(a), which requires that the public be given a reasonable opportunity to comment on a proposed cleanup, EPA published a notice of the remedy and held a public meeting near the Site. In September 1987, EPA issued a Record of Decision ("ROD"), setting forth its proposed remedy as recommended in the RI/FS. The State of Michigan concurred in the ROD, which required, among other steps:

(1) Excavation of approximately 50,000 cubic yards of contaminated soil, incineration of the excavated soils that were contaminated with PCBs, VOCs and SVOCs, and proper treatment and disposal of the resulting incinerated ash; and

(2) Extraction and on-site treatment of contaminated ground water with diversion to adjacent marshlands or an alternate location.

The 1987 ROD issued by EPA included a detailed explanation of the reasons for selecting the proposed remedy, and included specific findings that the remedy satisfied the requirements of CERCLA, complied with federal and state ARARs, and was cost effective. Soil flushing, though not adopted in the 1987 ROD, was not ruled out completely. The ROD listed eight criteria EPA would consider before substituting soil flushing for thermal incineration: economies of scale, community acceptance, cleanup time, land regulations, reliability of soil flushing, implementability, complete site remediation, and cost effectiveness.

In June of 1987, shortly before issuance of the original ROD, EPA began settlement negotiations with the PRPs. The State of Michigan participated in these discussions. In the course of the negotiations, EPA was persuaded that the soil flushing method might be a viable, less costly alternative to the incineration of the VOC/SVOC contaminated soil, and could still result in a cleanup that would comply with all federal and state ARARs.

In August of 1988, EPA and the twelve PRPs who are defendants in this action signed the consent decree which included a soil flushing remedy for the site. While under the original plan 50,000 cubic yards of contaminated soil were to be incinerated, the consent decree calls for incineration of only half that amount, augmented by soil flushing for the remaining 25,000 cubic yards. In economic terms this is represented as effecting savings of roughly $12 million. To offset the danger that this process might be insufficient, the decree requires the PRPs to prove, both in a laboratory and at the Rose Site, that soil flushing is capable of meeting Phase I water target cleanup levels ("TCLs")7 for the subsurface soils contaminated with VOCs and SVOCs within ten years after implementation of the system. Absent such proof, the PRPs would be required to fund and implement an alternate, permanent remedy designed to meet Phase I TCLs. Under the proposed consent decree, EPA is required to review the remedial action at the site at least every five years, and is permitted to seek further response action from the defendants if EPA determines that supplemental remedies are necessary. The settling defendants are also required to provide EPA with monthly progress reports, and are subject to fines for failure to provide the reports or for delays in the implementation of the proposed remedial action.

The consent decree retains a requirement that PCBs above 10 parts per million (p.p.m.). at the Rose Site be incinerated either on-site or off-site, but as noted above, it does not incorporate the original remedial action plan's requirement for incineration of all of the otherwise-contaminated soil. Under the decree, the settling defendants would be required to:

(1) Implement supplemental hydrogeological studies regarding well placement, aquifers, permeability and porosity of unsaturated soil, placement of water extraction systems and characteristics of the soil;

(2) Install and maintain a ground water monitoring program;

(3) Excavate and incinerate all soils at the site containing PCBs in excess of 10 p.p.m.;

(4) Treat and bury soils containing lead in excess of 70 p.p.m.;

(5) Install and maintain a ground water extraction/treatment system that includes air stripping and carbon adsorption;

(6) Locate and treat wetlands on the site that contain PCBs in concentrations greater than 10 milligrams per kilogram;

(7) Construct and maintain a six-foot chain link fence around the site;

(8) Install and maintain a soil flushing system designed to remedy VOC and SVOC contaminated subsurface soil and, if the system proves ineffective, to submit within six months an alternate remedy; and

(9) Prepare the soil flushing plan; see details supra.

In consideration of the work to be performed and the payments to be made by the settling defendants, the United States agrees in the proposed consent decree not to sue them, with some exceptions,8 for claims available under sections 106 and 107 of CERCLA and other federal and state environmental laws which are based on facts about the Site and its contamination known to EPA at the time of the entry of the decree. The covenant does contain reopening provisions which would allow EPA to seek further injunctive relief or cost recovery if conditions unknown until after entry of the decree reveal that the remedial action is not protective of human health and the environment. See Consent Decree XVII.

C. Proceedings in the District Court and the Amended ROD

In September of 1988, EPA filed the proposed consent decree with the U.S. District Court for the Eastern District of Michigan pursuant to 42 U.S.C. § 9622(d)(1)(A). As required by 42 U.S.C. § 9622(d)(2) and 28 C.F.R. § 50.7, notice of the proposed consent decree was published in the Federal Register on September 26, 1988. At the same time, EPA published a three page document entitled Proposed Settlement Plan--Explanation of Significant Differences ("ESD"). The ESD was published to comply with section 9617(c), which requires EPA to explain why a settlement or consent decree to which the agency agrees differs in any significant respect from the final plan or ROD previously issued for a particular site. In this case the ESD explained the basis for the decision to allow defendants to try soil flushing at the Rose Site in conjunction with incineration, when the 1987 ROD had called for soil incineration only.

As required by 42 U.S.C. § 9617(a), EPA provided a period for public comment on the proposed changes to the ROD. EPA received written comments from the Michigan Department of Natural Resources and the Michigan Toxic Substances Control Commission, two congressmen, two private environmental organizations (the Environmental Defense Fund and the Michigan Environmental Council), several residents of Rose Township, and the settling defendants. Only the comments from the settling defendants expressed support for the terms of the consent decree.

Those who objected to soil flushing were concerned that it was not a well-demonstrated technology, especially in Michigan's cold weather climate; that flushing may take as long as fifteen years to clean up the site as opposed to two years for incineration; that monitoring of soil flushing's effectiveness is extremely difficult, and that flushing may violate Michigan's groundwater anti-degradation laws.9 There were also concerns that the consent decree did not adequately define defendants' obligations in the event soil flushing failed to achieve established cleanup levels within the required time frame.

The settling defendants asserted that the proposed consent decree would protect human health and the environment, and included a study by the Gradient Corporation, an environmental consulting firm, which estimated that approximately 12,325 pounds of organic chemicals would be removed by the soil incineration method and that approximately 12,234 pounds of organic chemicals would be removed by the soil flushing method. The study added that the two amounts would be even closer in volume than this, because an additional amount of soil that was not to be incinerated under the original remedy would be subjected to soil flushing under the consent decree.

On January 18, 1989, after considering the comments received, EPA issued an amended ROD for the Rose Site. The amended ROD formally adopts soil flushing as a remedy for VOC and SVOC-contaminated subsurface soils, but only if pilot testing proves that flushing is as protective as thermal destruction. In adopting the remedy it originally ruled out, EPA reasons that (1) the excavation of PCB contaminated soils will remove most of the unflushable contaminants; (2) the geology of the contaminated area may not be as complex as initially thought; and (3) pilot testing has not yet been performed to rule out soil flushing. EPA, in the amended ROD, further asserts that (1) if Phase II target cleanup levels are achieved, flushing will have done as well as incineration was required to do under the original ROD, and will have brought the Site into compliance with all federal and state ARARs; (2) flushing is more cost effective than incineration; (3) assuming the groundwater treatment system uses granular activated carbon to capture the contaminants, soil flushing will satisfy CERCLA's preference for remedies utilizing permanent and innovative treatments; and (4) soil flushing will reduce toxicity, mobility, and the volume of contaminants to the same extent as thermal destruction.

The State of Michigan filed a complaint with the district court and moved to intervene in the action between EPA and the settling defendants on February 14, 1989, pursuant to 42 U.S.C. § 9621(f)(2)(B). This provision allows a state to challenge a proposed consent decree which allegedly fails to meet the state's environmental protection standards. On May 4, 1989, the U.S. District Court held that Michigan could intervene in order to challenge entry of the consent decree.

On June 8, 1989, Michigan filed a brief opposing entry of the consent decree, and appended the affidavit of Robert A. Hayes, in which Mr. Hayes discussed his scientific evaluation of soil permeability and the possible ineffectiveness of flushing at the Rose Site. The U.S. District Judge declined to consider the affidavit, as well as a memorandum drafted and submitted by EPA, concluding that the court's review was limited to the administrative record as that record existed at the time EPA amended the ROD. The district court did grant the motion of the Natural Resources Defense Council, the Environmental Defense Fund, and the Sierra Club to file a brief with the court as amici curiae, and their brief objecting to the entry of the consent decree was filed on June 30, 1989.

On July 18, 1989, one day after oral argument, the district court granted EPA's motion for entry of the consent decree. The State of Michigan moved for a rehearing, requesting the district court to remand to EPA or to grant an evidentiary hearing to determine whether the amended ROD complies with Michigan's ARARs. The court denied this motion when it issued a final Memorandum Opinion and Order on August 9, 1989, approving the decree and ordering its enforcement. United States v. Akzo Coatings of America, Inc., 719 F.Supp. 571 (E.D.Mich.1989).

In its opinion, the district court held that Michigan's groundwater anti-degradation law does represent an ARAR for purposes of CERCLA, but found that the consent decree embodying a soil flushing remedy did not violate the state ARAR. The court found that Michigan's concerns about the complex geology of the Site had been adequately addressed by EPA, and observed that soil flushing had been used, with state approval, at other Michigan sites. The district court concluded that, on the administrative record, EPA's decision to enter into the consent decree was not arbitrary or capricious, and was reasonable, fair and not contrary to relevant federal and state laws. In addition, the district court held that CERCLA's provisions allowing EPA to settle claims for remedial action with the PRPs preempted the State of Michigan from imposing additional remedial action requirements on defendants under Michigan's Water Resources Commission Act, M.C.L.A. § 323.6; Michigan's Environmental Protection Act, M.C.L.A. § 691.1201 et seq.; and the common law of public nuisance.

The State of Michigan now appeals the entry of the consent decree, and the district court's finding that CERCLA preempts some of the state's environmental remedies against these defendants. The PRPs cross-appeal the district court's finding that Michigan's anti-degradation law is an ARAR. EPA appears as appellee in this action, and does not challenge the judgment of the district court. The specific issues on appeal are:

A. What is the proper standard of review for consent decrees, and should the court consider supplemental evidence not appearing in the administrative record?

B. Is the consent decree arbitrary and capricious?

C. Is the consent decree fair, reasonable and adequate?

D. Does the consent decree comply with CERCLA's and Michigan's applicable environmental provisions?

E. To what extent, if any, does the consent decree preempt state law claims for additional relief?

These issues will be discussed in the order listed above.

A. The Consent Decree and the Administrative Record

We must initially determine whether the district court applied the appropriate standard of review to the consent decree reached by EPA and the PRPs. The State of Michigan argues that the district court should have reviewed the consent decree under a de novo standard,10 rather than the more lenient arbitrary and capricious standard.

A court's review process of a response action undertaken by EPA is guided by 42 U.S.C. § 9613(j), which provides:

(1) Limitation

In any judicial action under this chapter, judicial review of any issues concerning the adequacy of any response action taken or ordered by the President shall be limited to the administrative record. Otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court.

(2) Standard

In considering objections raised in any judicial action under this chapter, the court shall uphold the President's decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law.

Under a series of executive orders, the latest of which is codified at 42 U.S.C. § 9615, the functions of the president under CERCLA and SARA are delegated to EPA's administrator, with the authority to redelegate. EPA entered into the consent decree at issue in this case under the authority of this provision. CERCLA empowers the President, and those to whom he lawfully delegates authority, to remedy environmental problems such as the one at issue in Rose Township:

In addition to any other action taken by a State or local government, when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities of the case may require.

42 U.S.C. § 9606(a).

The State of Michigan argues that the consent decree negotiated between EPA and the PRPs was agreed to, but not "taken or ordered," as described in section 9613(j)(1), supra, or "select[ed]" as described in section 9613(j)(2), supra. While these verbs are not defined in the CERCLA statute, we believe EPA, acting on the President's behalf, did select the chosen remedy embodied in the consent decree, and has ordered that the terms of the agreement be carried out by the PRPs. CERCLA authorizes the President to "remove or arrange for removal of, and provide for remedial action relating to" hazardous substances at a site, or to "take any other response measure" deemed necessary "to protect the public health or welfare or the environment." 42 U.S.C. § 9604(a). Section 9604(c)(4) authorizes the President to select remedies which will further his efforts to remove these hazardous substances and protect the environment. The statute specifically authorizes the President to enter into consent decrees with PRPs in order to achieve these goals. See 42 U.S.C. § 9622. We find that EPA's decision to enter into a consent decree does represent a selection by the President of a remedy. As a result, CERCLA's limitation of judicial review to the administrative record does apply here, and the district court properly declined to engage in a de novo review of the consent decree.11

Our finding on this question of the standard of review is consistent not only with the language of CERCLA itself, but also with congressional intent concerning the role of agency expertise, and with the case law that has developed since the enactment of section 9613(j). Ours should not be the task of engaging in a de novo review of the scientific evidence pro and con on each proposed remedy in the hazardous substance arena. The federal courts have neither the time nor the expertise to do so, and CERCLA has properly left the scientific decisions regarding toxic substance cleanup to the President's delegatee, the EPA administrator and his staff. "When examining this kind of scientific determination ... a reviewing court must generally be at its most deferential." Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 2255, 76 L.Ed.2d 437 (1983). Our role, as the CERCLA statute makes clear, is one of review on the administrative record, searching for errors of procedure and for glaring omissions or mistakes which indicate that EPA has acted arbitrarily and capriciously. As the House Report on the SARA amendments notes: "limiting judicial review of response actions to the administrative record expedites the process of review, avoids the need for time-consuming and burdensome discovery, reduces litigation costs, and ensures that the reviewing court's attention is focused on the criteria used in selecting the response." H.R.Rep. No. 253, Pt. 1, 99th Cong., 1st Sess. 81 (1985), reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2863. When reviewing a consent decree, a court need only "satisfy itself that the settlement is reasonable, fair, and consistent with the purposes that CERCLA is intended to serve." H.R.Rep. No. 253, Pt. 3, 99th Cong., 1st Sess. at 19 (1985), reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 3038, 3042 [hereinafter "H.R.Rep. No. 253, Pt. 3"].

Other courts have viewed this limited, yet important, role as we do. In United States v. Cannons Engineering Corp., 899 F.2d 79 (1st Cir.1990), the circuit court affirmed the district court's approval of proposed consent decrees reached between EPA and PRPs under CERCLA. The First Circuit stated in that case: "While the district court should not mechanistically rubberstamp the agency's suggestions, neither should it approach the merits of the contemplated settlement de novo." 899 F.2d at 84.

We recognize that one court has found that EPA's selection of a remedy to clean up a hazardous waste site should be reviewed de novo in the district court. See United States v. Hardage, 663 F.Supp. 1280 (W.D.Okla.1987). However, we believe that court misinterpreted the plain language of CERCLA and the congressional intent behind the statute. The Hardage court found that the environmental plan in that case had not been "selected," but was merely a proposal which the court, not the President, was in a position to enforce. Therefore, reasoned the court, review of the proposed cleanup plan was not limited to the administrative record by section 9613(j), since the court, not the President, was ordering a remedy.

The Hardage distinction is without merit, and we believe the court improperly engaged in a de novo review of the remedy in that case. "If the Hardage court's interpretation of the statute is correct, Congress has enacted an unusual statutory scheme, one in which the scope and standard of review seems to hinge on whether EPA formally issues an order for a response plan or merely asks the court to enforce such a plan." In re Acushnet River & New Bedford Harbor, 722 F.Supp. 888, 892 (D.Mass.1989). Another court has described the Hardage court's distinctions as "hypertechnical and inconsistent with the plain meaning of the statutory language." United States v. Bell Petroleum Servs., Inc., 718 F.Supp. 588, 591 (W.D.Tex.1989). We agree with the view that the Hardage distinctions are improper, given 42 U.S.C. § 9621(a)'s description of actions "secured under section 9606" as presidentially-selected remedial actions. The President, acting through EPA, does select a remedy when he presents a consent decree for court approval, and the standard of review found in section 9613(j) should apply to such decrees. The consent decree, as a judicial act, requires court approval. However, the court's role is limited to approval or rejection of the decree, and it remains EPA's responsibility to select the remedy and to take the steps necessary to bring the decree to the court for approval. We must respect Congress' intent that the President develop such decrees, and that the courts review them on the administrative record under an arbitrary and capricious standard.

Another case interpreting the standard of review under CERCLA is United States v. Ottati & Goss, Inc., 900 F.2d 429 (1st Cir.1990). There the court held that review of an EPA request for injunctive relief to force several companies to clean up a hazardous waste site was not limited to the arbitrary and capricious standard. The court drew a distinction, with which we agree, between the court's duty to enforce a "lawful (nonarbitrary) EPA order," and the court's discretion to accept or reject a "remedial injunction that EPA (lawfully and nonarbitrarily) decides is proper." 900 F.2d at 434. As the Ottati & Gos