EP 1110-3-8
9 Apr 04
created. The Administrative Records Coordinator will send all questionable documents (see
appendix k - those items marked with a Ω) to the appropriate offices for evaluation and
recommendation as to their suitability for inclusion.
b. Section 113 (j)(1) of CERCLA and general principles of administrative law limit the
courts to the use of the Administrative Record to support judicial review when the adequacy of a
response action is being challenged. As a result, facts or arguments related to the adequacy of a
response action that challenging parties present for the first time in court will not be considered
since they are not included in the Administrative Record. This statutory limitation does not
apply to other litigation which may occur involving active installations or FUDS properties.
c. Administrative Record review saves time by limiting the scope of trials in cases where
the adequacy of the response action is being challenged. In these types of cases, the courts may
limit a party challenging a decision regarding the use of discovery, hearings, or additional fact
finding to look beyond the agency's Administrative Record, except in very limited circum-
stances. In particular, courts generally will not permit persons challenging a response decision to
depose, examine, or cross-examine Federal agency decision makers concerning the selection of
the response action. The Administrative Record may have a very important role to play in all
litigation. For example, evidence outside the Administrative Record will be both discoverable
and admissible in cases which are not exclusively challenging the adequacy of the response
action. In these types of cases, the Administrative Record can be critical to help establish the
government's case, even if it is not the exclusive information available for use.
d. The Administrative Record may be cited long after officials responsible for the response
decisions have moved into different positions or have left the lead or support agency. Judicial
review limited to the Record saves time involved in locating former employees who may not
remember the facts and circumstances underlying decisions made at a much earlier time.
Therefore, the extent to which the Army benefits from having judicial review limited to the
Record depends on the quality and completeness of each Record.
4-4. Public Participation.
a. Section 113 (k) (2) of CERCLA requires that the public have the opportunity to
participate in developing the Administrative Record for response selection. Sections 117 and
120(f) of CERCLA also include provisions for public participation, to include state and local
officials, in the remedial/removal response action planning and selection process. These sections
reflect a statutory emphasis on public participation. Therefore, the Administrative Record file
will be developed with the involvement of the public as discussed in paragraphs 4-13, 4-14, and
4-15. Participation by interested persons will ensure that the government has considered the
concerns of the public during the response selection process. In addition, for purposes of
administrative and judicial review, the Record will contain documents that reflect the
participation of the public and the Army's consideration of the public concerns.
4-3
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