Unreported / Non-Citable
Background
The United States filed suit against the City of San Diego and other defendants under CERCLA for recovery of response costs related to hazardous substance contamination in the Boat Channel. The parties submitted a Proposed Pretrial Order indicating that the City's expert, Dr. J. Michael Trapp, would testify on three topics: (1) the Navy's allegedly inadequate site characterization, (2) the Navy's remediation failing to meet current regulatory sediment frameworks, and (3) the Navy's dredge operations failing to properly remediate impacted areas identified in the Remedial Action Plan. The United States objected to Dr. Trapp's testimony, arguing that the court had previously granted a motion to exclude him based on CERCLA's administrative record restriction, which limits judicial review of the adequacy of response actions to the administrative record.
The central dispute concerned whether the administrative record restriction in 42 U.S.C. § 9613(j)(1) bars expert testimony in the cost allocation phase of the case under § 9613(f)(1). The United States contended the prior exclusion order applied broadly, while the City argued the restriction is limited to challenges to the adequacy of the selected remedy and does not govern the equitable allocation of costs among liable parties.
The Court’s Holding
The court denied in part the United States' objections. It held that the administrative record restriction in § 9613(j)(1) applies only to 'issues concerning the adequacy of any response action taken or ordered by the President' and does not extend to cost allocation analyses under § 9613(f)(1). Applying the statutory interpretation canon from Russello v. United States, 464 U.S. 16, 23 (1983), the court noted Congress included the restriction in § 9613(j)(1) but omitted it from § 9613(f)(1), which instead authorizes courts to allocate costs using 'such equitable factors as the court determines are appropriate.' Therefore, the restriction does not categorically bar Dr. Trapp's testimony in the allocation phase.
However, the court sustained the objection as to Dr. Trapp's opinions on the Navy's remediation. Surveying the Gore factors (used in the Ninth Circuit) and Torres factors, the court found these equitable considerations focus on the release of hazardous substances—such as the amount and toxicity of waste, the parties' involvement in disposal, the degree of care exercised, and cooperation with officials. Dr. Trapp's proposed testimony on whether the Navy's remediation met current regulatory standards or properly executed the Remedial Action Plan concerns post-release cleanup actions, not the release itself, and is therefore irrelevant to the allocation analysis. The court permitted Dr. Trapp to testify regarding the Navy's investigation and site characterization, as such evidence may illuminate the amount of hazardous waste, the parties' involvement in disposal, and their knowledge of contamination—all relevant Gore and Torres factors.
Key Takeaways
- CERCLA's administrative record restriction (§ 9613(j)(1)) does not apply to cost allocation proceedings under § 9613(f)(1); the two statutory provisions are distinct in scope and textual limitations.
- Expert testimony in allocation proceedings must be relevant to equitable factors tied to the release of hazardous substances (e.g., volume, toxicity, generator involvement, knowledge, care exercised), not to the adequacy of subsequent remediation efforts.
- Testimony regarding site characterization and investigation is admissible in allocation because it bears on the nature and extent of the release and the parties' awareness and involvement at the time of disposal.
- Courts in the Ninth Circuit apply the Gore factors (and sometimes Torres factors) as a non-exhaustive guide for equitable cost allocation among PRPs.
- A prior order excluding an expert under the administrative record restriction for remedy-review purposes does not automatically bar that expert from testifying on allocation issues.
Why It Matters
This order clarifies a critical procedural boundary in CERCLA litigation: the administrative record restriction is a limit on judicial review of the selected remedy, not a blanket evidentiary bar for all phases of a case. By distinguishing § 9613(j)(1) from § 9613(f)(1), the court ensures that cost allocation—a fact-intensive, equitable inquiry—can consider the full factual record, including expert analysis of historical site investigations. The ruling permits parties to introduce evidence of what PRPs knew and did at the time of contamination, while properly excluding post-hoc critiques of the government's cleanup performance that do not inform the equitable sharing of liability.