The decision of the United States District Court for the District of Rhode Island in Emhart Industries, Inc. v. New England Container Company, Inc. is notable as one of the few CERCLA decisions that does not uphold completely USEPA’s remedy decision and does not limit its review strictly to the administrative record. It is also one of the few CERCLA decisions that find a party had a good-faith basis for refusing to comply with a Unilateral Administrative Order (UAO) under CERCLA.
We discuss the court’s unusual holdings on five issues: (1) allowing expert testimony to explain the “highly technical” environmental issues; (2) reviewing key assumptions underlying the remedy decision even though no arguments were presented in the administrative record to challenge them; (3) rejecting USEPA’s conclusion, as unsupported by facts and analysis in the record, that the groundwater be considered a source of potable water; (4) rejecting as arbitrary USEPA’s fish consumption calculations performed in the Human Health Risk Assessment; and (5) finding a good-faith basis for failure to comply with the UAO.
