saint gobain v. state ( 2024 )

VT
VERMONT SUPERIOR COURT
SUPERIOR COURT ds CIVIL DIVISION
Washington Unit Docket No. 717-12-17 Wnev
Saint-Gobain Performance
Plastics Corporation
Petitioner
v.
State of Vermont, Agency
of Natural Resources
Respondent
Order on the State’s Motion for Summary Judgment (MPR 2),
Saint-Gobain’s Rule 56(d) Motion (MPR 4), the State’s Motion to Stay Discovery
or for a Protective Order (MPR 5). the State’s Motion to Supplement the Record
(MPR 7), and Saint-Gobain’s Cross-Motion to Compel Answers to Discovery (MPR 8)
Petitioner Saint-Gobain Performance Plastics Corporation seeks review of the
Respondent State of Vermont Agency of Natural Resources’ recent promulgation of
permanent amendments to the Groundwater Protection Rule and the Hazardous
Waste Rule incorporating provisions related to perfluorooctanoic acid (PFOA) and
perfluorooctanesulfonic acid (PFOS). Shortly after Saint-Gobain initiated this case,
the State submitted the administrative record and filed a potentially dispositive
summary judgment motion generally addressing the procedural and substantive
validity of both rule amendments. Saint-Gobain responded with a Rule 56(d)
motion seeking to stay the summary judgment motion while it conducts discovery,
which it promulgated on the State. It purports to need discovery to ensure that the
State in fact has submitted the complete administrative record into the court’s
record before any review takes place.
The State then filed a motion to stay discovery or for a protective order,
arguing that most of the discovery sought by Saint-Gobain is unnecessary and
irrelevant to this case. The State agreed, however, to examine whether it had
omitted any parts of the administrative record in four specific areas pointed out by
Saint-Gobain. That inquiry, in fact, turned up additional parts of the
administrative record not already in the court’s record. The State has now
submitted a motion to supplement the record. Subsequently, Saint-Gobain filed a
motion to compel the State to answer its discovery requests.
The court temporarily stayed discovery and briefing on the State’s summary
judgment motion pending a decision on the need for discovery. To a great extent,
the discovery dispute in this matter is complicated by the confusing procedural
posture of this case, which has not unfolded as the Court believes is contemplated
by Vermont Rule of Civil Procedure 74.
The administrative rulemaking at issue in this case is subject to record
review. See State Dep't of Taxes v. Tri-State Indus. Laundries, Inc., 138 Vt. 292,
294 (1980). Rule 74 provides the applicable procedural vehicle for a challenge to the
rulemaking. See Conservation Law Found. v. Burke, 162 Vt. 115, 125 (1993). A
Rule 74 appeal is commenced by filing a notice of appeal with the relevant agency.
Vt. R. Civ. P. 74(b). The agency then transmits the administrative record to the
court. Vt. R. Civ. P 74(c). Typically, when the record is deemed complete, a briefing
schedule is ordered: the appellant files its brief, including its legal arguments and
requests for relief with the issues framed as it sees fit. The agency then files its
responsive memorandum, and the appellant files any reply. The court then
evaluates the parties’ legal arguments in relation to the record, the substantive law,
and the applicable review standard. Generally, there are no pleadings in the
Superior Court. Vt. R. Civ. P. 74(0).
Thus far, this case has proceeded quite differently. Saint-Gobain never filed
a notice of appeal with the State. Instead, it filed a four-count complaint directly in
this Court, including a long list of generally stated reasons why the rulemaking
could be invalid. The State then filed an answer and the administrative record.
Without the administrative record having been deemed complete, see Vt. R. Civ. P.
74(d), the State almost immediately filed a potentially dispositive motion for
summary judgment predicated on a lengthy statement of purportedly “undisputed
facts” addressing appeal issues framed by it and not as framed by Saint-Gobain.
This prompted Saint-Gobain, in part, to claim the need for discovery to contest the
State’s assertions that the facts in its statement are undisputed.
While the Court appreciates the initiative, it is not clear to the Court that the
State’s approach of filing a summary judgment motion will be a productive way to
address issues raised by Saint-Gobain when they come into focus, the discovery
dispute is resolved, and the record is deemed complete. Most importantly, a
challenge to rulemaking does not rightfully focus on “undisputed facts.” Indeed, an
agency is empowered to consider disputed factual issues and make reasonable
determinations. See Petition of Town of Sherburne, 154 Vt. 596, 605 (1990). Rule
56 and Rule 56(d) and their attention to “undisputed facts” provides a poor
framework to consider Rule 74 actions. Instead, as detailed below, the proper focus
should be on whether there is an adequate record in this case and whether the
agency abused its discretion or made a clear legal error. See Beyers v. Water
Resources Bd., 2006 VT 65, 7 12, 180 Vt. 605, 608 (rulemaking decisions are
reviewed “to determine whether they are arbitrary, unreasonable, or contrary to
law”); Lemieux v. Tri-State Lotto Com’n, 164 Vt. 110, 113 (1995) (agency rules are
presumed valid and the agency is entitled to deference; the court will intervene only
if the agency’s “wide discretion . . . is exercised in an unrestrained manner’).
More specifically, as for the pending discovery dispute, the issue is whether
the Court now has the full administrative record, not whether Saint-Gobain is
reasonably capable of contesting a fact asserted by the State in its statement of
facts. Saint-Gobain expressly says that it does not seek to expand the
administrative record. It merely seeks to posure itself that the Court now has the
complete record.
According to Rule 74, the administrative record includes “all writings and
exhibits in the agency proceeding [and] a transcript of any oral proceedings.” Vt. R.
Civ. P. 74(d). This includes “all documents and materials directly or indirectly
considered by agency decision-makers.” Burke, 162 Vt. at 127 (citation omitted;
emphasis in original); see also Pacific Shores Subdivision, California Water Dist. v.
U.S. Army Corps of Engineers, 448 F. Supp. 2d 1, 5 (D.D.C. 2006) (noting that an
overly broad interpretation of what is included “would undermine the value of
judicial review: ‘[I]nterpreting [what is included] so broadly as to encompass any
potentially relevant document existing within the agency or in the hands of a third
party would render judicial review meaningless.” (citation omitted)).
To resolve the dispute as to the record in this case, the Court adopts the
general approach employed by the United States Court of Appeals for the District of
Columbia Circuit, as follows.
The agency whose action is challenged “is entitled to a strong
presumption of regularity that it properly designated the
administrative record.” Because of this presumption,
“[s]upplementation of the administrative record is the exception, not
the rule.”!
There are two grounds on which a party may seek
“supplementation” of the administrative record. First, a party may
request the disclosure of “evidence that should have been properly a
part of the administrative record but was excluded by the agency.” For
clarity, the Court will refer to compelling discovery on the first ground
as completion of the administrative record [what Saint-Gobain seeks in
this case]. Second, a party may request disclosure of “extrajudicial
evidence that was not initially before the agency but the party believes
should nonetheless be included in the administrative record.” The
Court will refer to compelling discovery on the second ground as
supplementation of the administrative record. . . .
Courts may not compel an agency to complete the
administrative record unless the moving party can overcome the
presumption of regularity. In order to do so, the party seeking
1 Indeed, an agency’s “designation of the proper record is entitled to a presumption
of regularity.” 3 Admin. L. & Prac. § 8:27 (3d ed.); see also Hartness v. Black, 95 Vt.
190 (1921) (‘When the conduct of public officers is involved, all reasonable
presumptions are indulged in favor of regularity.”). “Common sense dictates that
the agency determines what constitutes the ‘whole’ administrative record because
‘Lit is the agency that did the ‘considering,’ and that therefore is in a position to
indicate initially which of the materials were ‘before’ it—namely, were ‘directly or
indirectly considered.” Pacific Shores, 448 F. Supp. 2d at 5 (citation omitted).
5
completion must present “non-speculative, concrete evidence to support
their belief that the specific documents allegedly missing from the
administrative record were directly or indirectly considered by the
actual decision makers involved in the challenged agency action.” The
moving party “must identify the materials allegedly omitted from the
record with sufficient specificity, as opposed to merely proffering broad
categories of documents and data that are ‘likely’ to exist as a result of
other documents that are included in the administrative record.”
Oceana, Inc. v. Pritzker, 217: F. Supp. 3d 310, 316-17 (D.D.C. 2016) (citations and
footnotes omitted); see also 3 Admin. L. & Prac. § 8:28 (3d ed.) (noting that discovery
in record review cases is “severely limited”). “[D]eliberative intra-agency
memoranda and other such records” generally are not considered to be part of the
administrative record. Amfac Resorts, L.L.C. v. U.S. Dep’t of the Interior, 143 F.
Supp. 2d 7, 13 (D.D.C. 2001); see also National Ass’n of Chain Drug Stores v. U.S.
Dept of Health and Human Services, 631 F. Supp. 2d 23, 27 (D.D.C. 2009)
(explaining that “the actual subjective motivation of agency decisionmakers is
immaterial as a matter of law—unless there is a showing of bad faith or improper
behavior” (citation omitted)).
In its initial discovery requests, Saint-Gobain identified four areas where it
appeared the administrative record filed in court may have omitted some
documents. The State voluntarily agreed to look further, it identified previously
overlooked materials, and those now are in the record. The State’s motion to
supplement is granted.
Otherwise, the Court has reviewed Saint-Gobain’s discovery requests and
arguments in detail and is unable to identify any non-speculative, concrete evidence
to support a reasonable belief that specific documents that were directly or
indirectly considered by the actual decision makers involved have been omitted
from the record. The record is many thousands of pages long. There is no
indication that the State has attempted to manipulate it or unintentionally failed to
include anything that was considered or that the record is in any way insufficient to
support effective review. That the State has supplemented the record is insufficient
to show that it remains incomplete as supplemented. See TOMAC v. Norton, 193 F.
Supp. 2d 182, 195 (D.D.C. 2002). Saint-Gobain simply has not overcome the strong
presumption of completeness to which the State’s record is entitled.
As a result, the Court finds that the administrative record is complete, and
Saint-Gobain’s discovery requests are quashed.
Consistent with the above approach, the State’s summary judgment motion is
denied as moot so that the parties can focus on addressing the relevant issues
within the proper legal framework.
ORDER
For the foregoing reasons:
(a) Saint-Gobain’s Rule 56(d) Motion (MPR 4) is denied:
(b) the State’s Motion to Stay Discovery or for a Protective Order (MPR 5) is
granted. Saint-Gobain’s discovery requests are quashed.
(c) The State’s Motion to Supplement the Record (MPR 7) is granted;
(d) Saint-Gobain’s Cross-Motion to Compel Answers to Discovery (MPR 8) is
denied; and
(e) the State’s Motion for Summary Judgment (MPR 2) is denied as moot.
(f) Saint-Gobain’s memorandum challenging the State’s rulemaking shall be
filed within 45 days.
(g) the State’s responsive memorandum shall be filed within 45 days of
service of Saint-Gobain’s memorandum.
(h) any reply memorandum shall be filed within 21 days of service of the
State’s responsive memorandum.
So ordered.
Electronically signed on July 19, 2018 at 05:06 PM pursuant to V.R.E.F. 7 (d).
LABhwn’
Z Timotky B. Tomasi
Superior Court Judge