fun and is a cost recovery action by the department of toxic substances control of the state of california i want to point out for the court from an early that this was not a case where a recalcitrant pollute his responsibilities to remove material from a site dr alexander in fact has spent over nearly three million dollars in the cleanup of the site even though most of the contamination as the record shows was caused by his predecessors and indeed dr alexander has paid oversight costs in connection with the removal of the materials pre existing problems were marginally substantial endangerment order and then the process continued from that point i spoke about almost eight years before the the the cleanup was actually affected but the point is reflected remedy have long ago been accomplished except that the t f c chose to prolong the process and in fact increase its response costs what the t f c seeks here was reimbursement not for the cleanup and not for the removal costs because honor and so to clear the state under superfund was entitle to recover the response cost if they conducted in a matter not inconsistent with the national contingency plan that's the real issue here concerns whether it takes twelve people to screw in a li well that's that's partly it but it's also whether or not the state process that was adopted by the department foxing substances control to analyze the conditions at the site and ultimately just to select the remedy are consistent with the national conventions a plan the key to this is there is no pre enforcement review while the cleanup is going on at the site so the only way that an entity or person can understand whether or not the remedy that's being selected is cost effective permanent and necessary under superfund is if in fact the state and in going about this process does it consistently with the national contingency plan that's a precondition to the state recovering its costs it had to be clean so the question then became what is what is a permanent cost effective and necessary remedy as you go through the analysis under the national contingency plan and that is kind of the key to the to the issue because that prete the rights of the individual who are responsible party who may be affected ultimately by the cost recovery action that may ensue because there's only one way for that person to actually get into the mind of the of the department toxic substances control in how they went about the process of the siding on that remedy and that is only if a record is created that record is very very important the record must track what's happening is you have documents that created by engineering consulting firms and the engineering consulting firm came up with three or four different remedies offsite removal and cleanup for example your term the universe of alternative remedies you go through a public review process in gauging the look community on on your remedy selection and then ultimately you get down to remedial investigation report that analyzes the effectiveness of those remedies or what their costs are and whether they are necessary whether they are effective essentially to to to affect the cleanup and that that process is under the control of the t s a so when we need to send documents i don't remedies including proposing a cap and containment which ultimately was selected by the t s a i think what we want to focus on initially here is the question of whether or not the trial quartered in its attempt in the face of the gaps in the in the record here to fill in those gaps by inferring certain missing items or determining that documentation of certain items need not be in writing and there was if you look at the trial court's findings of fact and conclusion of all there are some very pointed examples point the crew the your honour's to page thirty s thirty seven of the opening brief on the main action now table one which kind of lays out some of these examples but one that the trial court determined was that that there's no requirement for written community community relation plan whole but it also helps identify sensitive members of the population who might be affected by the remedy human who might need more protection than just the general population despite the fact that more expensive on your been more expensive not i wanted to do van hollen off the premises well there's there's a major issue with regard to the remedy that was selected as the record indicates that the the cap has failed at least twice since it was installed and so found that the remedial action plan approved by the t s p and that would be the substitute for the record of decision does not explicitly consider cost effectiveness of the remedy that's a major failing in the analysis that was done in support  not really intended to be a permanent solution what it felt to be when it was put in effect no it was not and that that consideration is not included in the remedial action plan it's not really talked about george  finality you know dealing with this only once and not having to go back again and again to resolve the same problem finally the trial court found that the remedial action plan does not address two of the four mandatory considerations under the national contingency plan including cost effectiveness and the use of alternative technologies again these are these are problems with the the decision making document the somehow that that a document should be in writing such as the community relations plan or the remedial investigation report may not be in writing but i point out to the court that we're really talking about a and administrative records case here  when the when the lead trial proceeds there's an administrative record that should be certified as the decision record that what that new t s a relied upon that is the basis for their decision the the state just failed to include those in the record the missing analysis the missing documents runs afoul the requirements of the agency examine the relevant data and explain the evidence that is available on offer a rational connection between the facts found in the choices made and that's the motor vehicles manufacturing association case out of supreme court in  three these failings are material and prejudicial and they prevent a full and fair review of the remedy selected by d p s see now this case i want to point out to the to the court is not like chapman s of a situation involving a removal which is really just taking away the material not dealing with the soil contamination that's a very different kind of process and it's a much shorter and and less complex case obviously is more like the washington department transportation case we believe except that the t s a was fully aware of the national contingency plan requirements a couple of other issues that i like to as you know the trial court reduced the amount of time that mr shadi who was the project manager applied to go to the project by twenty five percent even though his time sheets and his testimony seem to indicate that he rounded up  occasions perhaps by as much as fifty percent or seventy five percent on occasions the time sheets of course were also lacked the detail to back up mr shall you believe testified that in fact the back material that he used to write his time sheets he would routinely destroy those question this question really goes to the question of whether or not these documents are trustworthy enough in order to be admitted into evidence on the public records found that the attorney general that the attorney general who was reviewing the discovery requests for wrongfully determined that the attorney general's time sheets which are an element of damages in the case were not did not have to be produced do you know inquiry so that we could do an intelligent cross examination of the witnesses that you asked the court our mission to do that i do believe that we did thank you didn't examine the dollars in oversight costs for a three million dollars cleanup i will focus primarily on the n c p issues aren't there a lot of other issues raising everything i'd like to first precisely review the standard of review for government aid the action the court's need just allow costs for procedural errors only if those errors are i'm quoting so serious and related to matters of such central relevance to the actions taken that the action would have been significantly change evidence before it or took action it's so implausible that it can't be ascribed to a difference in view difference in opinion or the product of agency expertise in other words there's no rational connection between with the agency and the fact parents agree with that standard in their opening brief page twenty five to twenty six what they're trying to do in their argument though in fact is to hold to a strict compliance standard with the n c p and for that there is no  and you can find that finding it in search of records for seventy five there it's clear from the record that first of all and unless it wasn't clear from the parents answer not only did they have an opportunity to participate they drafted each of the documents that are in the record they drafted those documents for the department of approval the department at times rejected those documents sent them back to the drawing board required them to redo them and ultimately the department approved fifty nine of the excerpts of record after hearing testimony by the extensive testimony by the ts these project manager and the appellant private consultant who prepared the documents he made a finding that there was in a voluntary abandonment of had provided significant opportunity to for them to prove the effectiveness of this proposal and that they were able to do so and that is reflected in the record in the remedial action plan discussing washing proposal and pointing out that it was unproven to address all of the hazardous contaminants at the state even though it might have addressed one or two of them it's clear from the record that the d t s you consider seven and provide long term protection for the environment reduce on and off site waste and the cost effective that's an excerpt of record three fifty nine hundred sixty ultimately it found only two remedies would be appropriate for all of the hazardous contamination at the site required and that was specified on page three eighty one of the excerpts of record three seventy seven that long term monitoring would be required for this contamination its particular rmy asphalt and concrete is not permits we all know that it's not a one time remedy but it would be permanent when it's required monitoring and maintenance altogether that remedy would be permanent and permits was considered p t s you balance consider cost as i mentioned it weighed cost vs effectiveness compared the alternatives and made a reasoned non arbitrary screening of the remedies available and shows the most effective remedy contemporary material was scooped off the top it was about nine inches deep it was consolidated into an area that comprise apartment ten percent of the site leaving more than ninety percent of the rest of the state of their lable for commercial  the agency as again belied by the remedial action plan excerpts of record three seventy one three seventy nine and three thirty nine it is clear that the department made a decision to utilize the risk assessment work of valuating and determining the toxicity of the state specifically that is extremely toxic with respect to lead contamination finally i'd like to just touch on the community relations plan so just record did find  and your examination of the record will confirm that there is no community relations plan that was drafted for this particular state rather simply followed the basic state law requirements for community relations in plan the department then held a public meeting at which comment public comment was against the listed and received the department and summarized in responded to the comments and included them in the final remedial action plan in that context it's simply environmental protection agency the transportation agency that in the process of building a road discovered that contamination in its way and had to stop its work and deal with that very cursory real investigation turned out to be completely inadequate it discovered less than ten percent of the actual toxins presence on the site and once the evidence began to roll into the agency the problem with far greater than they had ever imagined involving tens of thousands of additional tons of talk of material the n c simply ignored that relied on its initial real investigation here to a far smaller problem and then proceeded to didn't consider any alternatives other than the one they had selected and never put their plans out for public comment in that case i think it was relatively easy for th court to find it was arbitrary and capricious because the agency had ignored the evidence before and the agency had failed entirely to appreciate an important aspect of the problem that is fail to characterize the site failed to determine the full extent support without any testimonial support they simply made it that the federal government gets a better deal there's no evidence in a record anywhere that the federal government gets a better deal first of all and second of all there's no legal support for the notion apartment personnel ministration that deals with employees a certain percentage of those costs are cover all of the agencies of the state because that's what is required to put the agency to the individual agency to expert not an expert witness a their own in house cost recovery person to explain to the court what the documents were how indirect costs were where the agency he was seeking cost recovery entirely fails to consider mandatory factors can't make the link between those mandatory factors and the fact that they have before them but court when they're reviewing the administrative record has nothing before it to make a determination of whether or not the agency has even supported its decisions with all that lacking in the record and then the and substituting its own judgment for what d t s she had done that is not something that would be permitted under a motor vehicles manufacturing association and we believe it is our on the issue of  she prepares documents but ultimately those documents are the product of d t s see they set the agenda they tell us what has to be in the documents and if we don't put something in there that they that they want to put in there they'll reject the document then you'll see in the record where there's a number of letters going back and forth between v t s she and the palace consultant or problems with the documents and how to heal them i think there was a reference that the containment facility with the cap on it may be a concrete cellar believe the record will support that this actually clay lined and not not concrete on the issue of whether or not the department used a risk assessment from another site i think counsel for colleagues mentioned that they did in fact use a risk assessment not for the site which for a different site that was one of the errors that we pointed out and there was an analysis in that other risk assessment that concentrate on sensitive plants and not on not on human beings the community relations plan as we indicated there is no written plan and what the state had intended apparently all along was to proceed under state law not under federal law that's why we have problems with the nomenclature and that's why we have missing elements from the analysis finally on the indirect costs i would note that what we  indicated in the trial was that p t s d reaches out to the office of the governor for the general services administration other state agencies not related to d p s the site investigation or oversight here they reach out to these other agencies and sweetly in other indirect costs from these other agencies that we believe is in our under of hardy vs ga ga switch would indicate that indirect cost must relate to the agency's activities