Sludge Watch ==> McElmurray versus USDA - sludge contaminated farm subsidy

[Maureen Reilly]

Sludgewatch Admin

Here is the complete text of the court decision.
If you want the PDF file (easier to read) let me know.


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R. A. McELMURRAY, III, CIVIL ACTION
R. A. McELMURRAY, JR. ,
RICHARD P. McELMURRAY, and
EARL D . McELMURRAY,


Plaintiffs ,


V.
UNITED STATES DEPARTMENT OF
AGRICULTURE ,
Defendant . NO. CV105-159
O R D ER


Plaintiffs, R. A. McElmurray, III, R. A. McElmurray,
Jr., Richard P. McElmurray, and Earl D. McElmurray


(collectively, the "McElmurrays"), filed the above-captioned
case against the United States Department of Agriculture
("USDA"), seeking judicial review of an administrative
decision, which denied the McElmurrays' application for. a
"prevented planting" federal farm subsidy .
Presently before the Court are the parties' cross-
motions for judgment on the administrative record. Because
the agency's decision was arbitrary and capricious,
Plaintiffs' motion will be GRANTED and Defendant's motion
will be DENIED.



BACKGROUND


The City of Augusta operates the Messerly/Butler Creek
Wastewater Treatment Plant, which treats industrial and
household wastewater . Administrative Record ("AR") 1862 .


Before Congress passed the Clean Water Act in 1972 ,
industrial wastewater effluent was dumped into the nation's
rivers, oceans, and other waterways, not subject to much, if
any, oversight or regulation . See Rapanos v. United States,
165 L. Ed. 2d 159, 168 (2006) . One infamous result of this
pollution was that the Cuyahoga River, near Lake Erie in
Cleveland, Ohio, caught on fire in the 1960s .


After unregulated dumping of industrial pollutants into
the nation's rivers was prohibited, effluent from industries
began being routed through the municipal wastewater treatment
plants across the country, along with household sewage . At
municipal treatment plants, wastewater is treated to remove
chemicals, pathogens, and toxic metals from the effluent .
These materials are concentrated in the byproduct remaining
after treatment, sewage sludge . This byproduct also contains
beneficial materials like those found in commercial
fertilizer. AR 1233-34. Municipalities were left with a


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considerable amount of sewage sludge to dispose of in some
manner . See Peter Scalamandre & Sons, Inc . v . Kaufman, 113
F.3d 556, 559 (5th Cir . 1997) . In the late 1970s, the
treated sewage sludge was . re-christened "biosolids" and a


"land application/recycling" program was started


.


The Clean Water Act recognizes that municipal sewage
sludge contains toxic pollutants, and it requires that the
United States Environmental Protection Agency ("EPA")
establish numerical limitations for each such pollutant . 33


U.S .C . § 1345(d) (2) (A) (i) (2001) . In 1979, the EPA enacted
rules governing the land application of sludge to farmland
where crops are grown. 40 C.F.R . § 257.4 (2007). In 1993,
the EPA enacted the "Part 503 Sludge Rule," which further
regulates the amounts of heavy metals that may be contained
in biosolids applications, and reinforced the agency's view
that such municipal waste is safe for spreading on farms
where crops are grown. 40 C.F.R. Part 503 (2007) .


Because the sludge applications that took place in this
case ended before Part 503 was enacted, the Part 503 Rules
do not supercede the Part 257 regulations in the instant
dispute . "Retroactivity is not favored in the law . Thus,
congressional enactments and administrative rules will not
be construed to have retroactive effect unless their language


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requires this result ." Bowen v . Georgetown Univ . Hosp . , 488


U.S . 204, 208 (1988) . The McElmurrays insist that Part 257
governs, and the USDA has never advanced any argument
explaining why Part 503 should apply retroactively.
The EPA's Inspector General has criticized the EPA's
biosolids program sharply, finding in a 2002 report that the
"EPA does not have an effective program for ensuring
compliance with land application requirements of Part 503 .
Accordingly, while EPA promotes land application, EPA cannot
assure the public that current land application practices are
protective of human health and the environment ." AR 1485,


1518 .1


Since 1938, the McElmurrays have owned and operated a
family dairy farm near Hephzibah, Georgia . In the 1970s,
Augusta developed a land application program, whereby treated
sewage sludge from the Messerly plant was recycled as
fertilizer and applied to private farmland, at no cost to the
farmers . In 1979, the McElmurrays and Augusta entered into
a series of agreements, and the City began applying its
sewage sludge at the McElmurrays' farm . Plaintiffs contend


Likewise, the Fifth Circuit has noted that the experts have yet to
reach a consensus regarding the safety of land application of sewage
sludge generally . Scalamandre & Sons , 113 F .3d at 561-62 .


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that they were told the fertilizer was safe, and the
applications continued on their land through 1990 .


According to R. A. McElmurray, III, in November 1990, he
was having trouble with his, crops . McElmurray described the
problem to his brother-in-law, who had a degree in
agriculture from the University of Georgia . McElmurray
related that his brother-in-law opined that the problem was
probably aluminum toxicity. Thereafter, McElmurray asked
Augusta's land application supervisor to test for aluminum
in the sludge. When the result was high, McElmurray ceased
allowing sludge applications on his family's farmland . AR
1743 .


McElmurray conceded that he did not quit planting the
land involved in this dispute until 1998 . The land'produced
a full crop that year, but planting was ceased due to
" [1] iability, and what it was doing to our dairy cows [ . ] "
AR 1777 . . According to Plaintiffs, only years after the
sludge applications took place did they learn the full extent
of the damage that the sewage sludge had wrought on their
land. The McElmurrays accused the City of withholding
pertinent information about the particular locations on their
land where the sludge was applied, the volume applied, and
the presence and amount of toxic metals contained in th e


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sludge . The McElmurrays contend that the sludge poisoned


plants grown on the land, which were fed to their dairy


cattle, causing the cows to become seriously ill and die .


As part of the Farm Bill of 2002, Congress provided


certain farmers with subsidies, which were based on


historical acreage and yields, not current production


choices. Direct and Counter-Cyclical Program, 67 Fed. Reg.


64,748 (Oct . 21, 2002) . A farmer could establish his base


acres and payment acres by including "any acreage on the farm


that the producers were prevented from planting during the


1998 through 2001 crop years to covered commodities because


of drought, flood, or other natural disaster, or other


conditions beyond the control of the producers . "7

U .S .C . § 7911'(a) (1) (A) (ii) (2007 Supp .) ( emphasis added) . 2
Prevented plant [ingL means, for the purpose of
establishing base acres under § 1412 .201, the
inability to plant a crop with proper equipment
during the established planting period for the
crop or commodity. A producer must prove that
the producer intended to plant the crop and that
such crop could not be planted due to a natural
disaster rather than managerial decisions . The


While it is not very material, in light of the stipulation made by
Deputy Administrator Johnson, discussed below, the Court takes notice
of the language used in the statute . The law does not appear to support
government counsel's suggestion at oral argument that the Court should
view the McElmurrays' claim skeptically because they did not qualify
under the law for the credit, but were only able to apply because a
special exception was made for them.


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natural disaster that caused the prevented
planting must have occurred during the
established planting period for the crop.


7 C .F .R . § 1412 .103 (2007) .

On January 15, 2003, Plaintiffs submitted a request for
acreage/disaster credit to the USDA, listing environmenta l
contamination of the land on their application as the reason
for the "prevented planting ." The McElmurrays listed the
intended crops as 907 .1 acres of cotton3 and 204 .8 acres of
corn for the years 1999 to 2001 . The following day, the
McElmurrays submitted additional forms, stating that their
request included an additional 559 .1 acres of cotton and


59 .5 acres of corn for the years 1999 to 2001 . The total
request was for a prevented planting credit of 1466 .2 acres
of cotton and 264.3 acres of corn. AR 2134 .
At first, Plaintiffs' applications were reviewed by the
USDA's Farm Service Agency ("FSA") County Committee. After
a preliminary review by the County Committee, the
McElmurrays' application was denied because the damage wa s


While it may seem odd at first blush, the parties agree that
cotton is a food-chain crop. It is common for cows to be fed cotton
hulls after the cotton lint is removed from the plant (and people
consume beef and dairy products), and cottonseed oil is a common
ingredient in many snack foods that people eat, like potato chips . AR
1262 . Moreover, there is substantial evidence that cotton is not an
economically viable crop without considering the marginal value of
cottonseed. AR 1049-SO & 1055-56 .


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not caused by a natural disaster, as the County Committee
believed was required for relief . Yet, a superior FSA
official in Washington, D.C., John A. Johnson, reversed the
basis for that determination . Johnson, the FSA Deputy
Administrator for Farm Programs, stipulated that the
McElmurrays could receive the subsidy if their land was
contaminated, and the contamination caused the McElmurrays
to refrain from planting the intended acreage . On April 22,
2003, the FSA County Committee again denied Plaintiffs'
application for payments .


The McElmurrays appealed to the FSA State Committee.
This five-member committee of farmers oversees USDA farm
programs in Georgia, sets local policies, and settles
agriculture-related disputes that involve farmers and public
policy. After reviewing the record and conducting multiple
hearings, the FSA State Committee voted in favor of
Plaintiffs' application, by a vote of three to two .
finding for the McElmurrays, the State Committee discounted
the advice of its attorney, Donald Kronenberger, who had
opined that the State Committee was bound by certain
documents provided to the Committee by the EPA, and had to
deny the McElmurrays' application . AR 1988 & 2745 .


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However, the State Committee's decision was stayed,
pending a review by the FSA's Deputy Administrator for Farm
Programs, pursuant to 7 C.F.R. § 1.412.102(d). Although the
entire agency record was forwarded to Johnson, there is no
indication that the Deputy Administrator reviewed the file .
AR 2134 & 2433 . On March 18, 2004, the Deputy Administrator
overruled the State Committee and denied Plaintiffs'
application. AR 2256-57. In part, Johnson's determination
was based on a decision of the Richmond County Superior
Court, which had granted summary judgment in favor of
Augusta, against the McElmurrays in a related civil lawsuit .
AR 2000-01 . At the time, that decision was on appeal before
the Georgia Court of Appeals . AR 2066 . Johnson's decision
was made over the State Committee's continuing objection.


AR 0002 & 2259-60 .


On April 22, 2004, Plaintiffs filed another appeal, this
time with the USDA's National Appeals Division ("NAD") . On
September 2 and 3, 2 0 04 , a final hearing was held before NAD
hearing officer James Mark Jones . On December 3, 2004,
Jones upheld the denial of the farm credit, finding no error

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in the FSA's decision to deny the McElmurrays' application,


which was based on certain opinions provided by the EPA . 4


On January 3, 2005, Plaintiffs brought this action for


judicial review of the NAD's final administrative


determination in the United States District Court for the


Northern District of Georgia, pursuant to 7 U.S.C. § 6999


(1999) . On September 12, 2005, the case was transferred to


the Southern District of Georgia .


On December 27, 2005, Plaintiffs amended their


complaint, and on February 2, 2007, they moved to supplement


the administrative record. On March 5, 2007, the USDA moved


for judgment on the administrative record. On September 28,


2007, Chief Judge William T. Moore, Jr., denied Plaintiffs'


motion to supplement the administrative record. On October


During the NAD appeal process, Jones opined that he did not have
the authority to determine whether the land was contaminated, and
suggested that the EPA had decided that the land was not polluted . To
the contrary, Plaintiffs' counsel, F . Edwin Hallman, Jr ., indicated that
the EPA had not resolved the issue properly, and argued that the
question of contamination was appropriately before Jones . AR 2633-34 .
Jones also stated that, as far as his review was concerned, "anybody's
that's been untruthful, is not going to make any difference ." AR 2682
& 2694 . Based on these statements, it appears that Jones' view of his


authority in deciding the case was unduly narrow, which preordained his
conclusion in favor of the agency . To the extent that Jones found the
EPA's position questionable or unreliable, either because of the
underlying data it was based on, or because the sister agency failed to
consider the actual applications presented by the McElmurrays, then
Jones should not have relied on, or deferred to, such findings . . AR


1495 .


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4, 2007, Chief Judge Moore reassigned the case to the


undersigned for plenary disposition .


STANDARD OF REVIEW


Judicial review of the USDA's final determination to


deny a prevented planting credit is governed by the


Administrative Procedures Act ("APA"). 7 U.S.C. § 6999


(1999); 5 U.S.C . § 701-706 (2007) . An agency's decision,


including its actions, findings, and conclusions, should not


be overturned unless the decision is "arbitrary, capricious,


an abuse of discretion, or otherwise not in accordance with


law" or unless it is "unsupported by substantial evidence ."


5 U.S .C . § 706(2) (A) & (E) (2007) .


The scope of review under the "arbitrary and
capricious" standard is narrow and a court is not
to substitute its judgment for that of the
agency. Nevertheless, the agency must examine the
relevant data and articulate a satisfactory
explanation for its action including a "rational
connection between the facts found and the choice
made. " . . . In reviewing that explanation, we
must "consider whether the decision was based on
a consideration of the relevant factors and
whether there has been a clear error of
judgment ." . . . Normally, an agency rule would
be arbitrary and capricious if the "agency has
relied on factors which Congress has not intended
it to consider, entirely failed to consider an
important aspect of the problem, offered an
explanation for its decision that runs counter to
the evidence before the a enc , or is so


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implausible that it could not be ascribed to a


difference in view or the product of agency


expertise. The reviewing court should not


attempt itself to make up for such deficiencies ;


we may not supply a reasoned basis for the


agency's action that the agency itself has not


given .


Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co . ,


463 U.S . 29, 43 (1983) (internal cited and quoted sources


omitted) (emphasis added) .


Substantial evidence is more than a scintilla,


and must do more than create a suspicion of the


existence of the fact to be established. "It


means such relevant evidence as a reasonable mind


might accept as adequate to support a


conclusion, " . . . and it must be enough to


justify, if the trial were to a jury, .a refusal


to direct a verdict when the conclusion sought to


be drawn from it is one of fact for the jury.


NLRB v . Columbian Enamelin & Stamping Co., 306 U.S. 292,


300 (1939 ) ( internal case citation omitted) ( emphasis added) .


The Eleventh Circuit has explained that "[t]he


substantial evidence test is no more than a recitation of


the application of the ' arbitrary and capricious' standard


to factual findings." Fields v. United States, 173 F.3d


811, 813 ( 11th Cir . 1999 ). The agency must give reasons for


its findings. When the evidence is in conflict, the agency


must explain why it credited some probative evidence but not


the conflicting evidence . Vemco , Inc. v . NLRB, 79 F .3d 526,


529 (6th Cir . 1996 ). The substantial evidence standard does


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not excuse the agency from its duty to engage in reasoned
decision-making . Haebe v. Dep't of Justice, 288 F.3d 1288,


1301 (Fed. Cir. 2002) .


"Except as otherwise provided by statute, the proponent
of a rule or order has the burden of proof. " 5 U. S . C. §
556(d) (2007) ; Am. Trucking Ass'ns, Inc. v. United States,
344 U.S. 298, 319-20 (1953) ;Dir., Office of Workers' Comp.


v. Greenwich Collieries , 512 U.S . 267, 272-81 (1994) . In
this case, the McElmurrays bear the burden of proof because
they sought the federal subsidy. AR 2440 .
While Daubert does not apply to agency decisions in any
formal respect, the principles underlying that decision do
apply. Pasha v. Gonzalez, 433 F.3d 530, 535 (7th Cir .
2005) . Significantly, the APA demands that agency decisions
not be based on unreliable evidence, and an agency must
provide a coherent reason for refusing to consider the


testimony of expert witnesses . Chao v . Gunite Corp . , 442
F.3d 550, 559 (7th Cir . 2006) . In other words, "deference
has its limits ." Id.


Nonetheless, contrary to Plaintiffs' repeated
contentions throughout the administrative proceedings,
agencies may rely on hearsay in making their determinations .
Richardson v. Perales, 402 U.S. 389, 402-04 (1971) ; AR 1427 .


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The APA provides that any oral or documentary evidence may
be considered, so long as the agency excludes irrelevant and
immaterial evidence . 5 U.S.C. § 556(d) ( 2007) .


The Court's consideration of the case is limited to the
administrative record before the agency when the USDA made
its determination to deny Plaintiff ' s application for
prevented planting credits. Dkt. No. 61 ; see Alabama-
Tombigbee Rivers Coal . v. Kempthorne, 477 F .3d 1250, 1262


(11th Cir. 2007)( court should consider evidence outside the
administrative record " only where there is initially 'a
strong showing of bad faith or improper behavior' by the
agency") .


DISCUSSION


The issue presented in this case concerns whether the
McElmurrays' land was contaminated by sludge applications
such that the soil was unsafe for growing food-chain crops .
The only dispute presented in this case concerns whether the
McElmurrays' land was too polluted to use . The agency has
never disputed the question of causation ; and the evidence
of record supports a finding that causation was established .
AR 1777 .


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To determine whether Plaintiffs have met their burden
of proof, the Court will examine the sludge data provided by
Augusta, the views of the experts as to contamination, and
the EPA's contributions, in turn . Along the way, the Court
will examine the proof of contamination, and consider the
appropriate remedy in light of the evidence submitted.


I . Augusta's Data
Much of the evidence that was considered by the federal
agencies in this case, and by Plaintiffs' experts, is based
on data collected by the City of Augusta, with respect to
its sludge application program from 1979 to 1990 . Although


there is a broad consensus that Augusta's reports were
unreliable, incomplete, and in some cases, fudged, the
City's information is an integral part of this case .


According to the deposition testimony of Hugh Avery,
Augusta's sewage sludge land application supervisor
beginning in 1984, the City's sludge application data going
back to 1979 were inaccurate, and the records predating his
tenure were "in shambles ." AR 2604-05 . Specifically, Avery


testified that the records were incomplete and missing


15



critical information about which fields received sludge


applications . AR 2604 .


Jeff Larson, an official with the Georgia Environmental
Protection Division ("EPD"), conducted an audit of the
Messerly plant in 1998, and reported in an internal
memorandum that problems with the sludge application program
persisted, even after the program had been delegated in part
to a reputable contractor, AMSCO, Inc . Larson stated that
two hundred truckloads of sludge were leaving the facility
for land application each day, "much of which may not be


meeting requirements[ .]" AR 0985 & 1669 .


Larson found fault with the City's digestion system and
its inappropriate sludge sampling techniques. Larson
asserted that the City ignored certain results to make the
program look better than it was in fact . AR 1668 & 1670 .
The plant was in "very poor condition," with major units
rusted and out of service. Larson also reported that
management at the facility was "literally a joke[,]" and
that the "staff is the most demoralized bunch of people I
have ever witnessed[ .]" AR 0986 .


The final EPD report based on Larson's investigation
found that " [t] he sludge regulations are based on a well run
pretreatment program which is not the case in Augusta . The


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sludge is highly corrosive . . . ." AR 1670. The report
recommended that the plant be shut down immediately. AR
1671 . Neither the USDA nor the EPA asserted that conditions
at the Messerly plant had deteriorated since 1990 . Indeed,
Larson indicated that the plant had "been grossly neglected


for years ." AR 0986 .


Dr. Lewis Goodroad, Plaintiff's expert soil scientist,
reported that Augusta manipulated its data by averaging lab
results over several months in an attempt to reduce the


levels of metals present in the sludge . AR 0681 . A former
Supervisor of the Messerly Wastewater Treatment Plant, Allen
Saxon, confirmed that this was the case. AR 0808. An
employee of the USDA, Tommy Weldon, agreed that it "would be
hard to come to a conclusion based on [Augusta's] data[,]"


because of the City's "sloppy record-keeping and inaccurate
data." AR 2758 .


There is also evidence that the City fabricated data
from its computer records in an attempt to distort its past
sewage sludge applications . AR 502-03 . In January 1999,
the City rehired Saxon to create a record of sludge
applications that did not exist previously. Saxon prepared
sludge spreadsheets in 1999, which showed cumulative loading
calculations for the first time in the twenty-year histor y


17



of the City's land application program . AR .0798-818, 844-
52, & 659-685 .


In other instances, there is evidence that Augusta
altered its records to show that the sludge was applied to
different, incorrect fields . Handwritten notes on the


City's records contradict the number of acres involved, and
the volume of sludge applied, as those figures are
represented in the 1999 spreadsheet developed by Saxon. AR
2598 . Other evidence indicates that City officials altered
the spreadsheets in 1999 in an attempt to remove any record
of the application of hundreds of thousands of gallons of
sludge to hundreds of acres on the McElmurrays' farm. AR
0643-47 . Goodroad reported that 18 .9 million gallons of
sludge had been applied to Plaintiffs' fields but was not
recorded by Augusta . AR 0650 .


Notwithstanding these facts, USDA employee Ronald Carey
testified that evidence that Augusta changed its records
years after applications were made, to reflect that the
sludge was applied to larger plots of land than was actually
the case, would not concern him . AR 2590.


The McElmurrays contend that Augusta's records, under-
representative though they are, show that Augusta violated
federal law in placing the sludge onto their land, citing ,


18



inter alia, 40 C.F.R . § 257.3-5 (2007).. This federal
regulation governs allowable cadmium and polychlorinated
biphenyl ("PCB") limits . Plaintiffs contend that this
violation is plain evidence of contamination of Plaintiffs'
land and the unsuitability of the property for the
production of food-chain crops . AR 658-685 . The Court will
explore that evidence and regulation below .


II. The Experts' Responses: Hall and Haaland Describe the
Evidence of Contamination
During the administrative proceeding, Plaintiffs
presented credible evidence from qualified experts that
supported their contention that their farmland was
contaminated. That evidence was not considered by the EPA
or the USDA, but the McElmurrays' applications were denied
anyway.


William L . Hall is a professional engineer and the CEO
of NewFields, Inc ., an environmental consulting firm based
in Atlanta, Georgia . Plaintiffs retained Hall and NewFields
as experts in separate litigation against the City of
Augusta relating to the sludge applications to their land.
On April 1, 2003, Hall signed an affidavit that was
submitted to the FSA and included in the administrative


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record. AR 0329-0336. Hall has extensive experience with
respect to the impact of heavy metals on the environment,
and has been the project manager on seven Superfund sites
that reached final closure . AR 0329, 0361-68, & 0691-92 .


Hall made extensive findings about Augusta's sludge data
and the specific instances of contamination on the
McElmurrays' farm. Hall opined that about 2,234 acres of
the McElmurrays' farm was unusable, due to contamination
from the heavy metals contained in the sewage sludge. AR
0330 . Hall noted that high contaminant concentrations were
based on the limited sampling that had been completed, and
opined that there was a correlation between cow mortality
and the consumption of silage, which is animal feed made
from forage plants, grown on contaminated fields . AR 0331 .


Hall reported that Augusta allowed companies to dump
industrial waste into an open pit at the Messerly plant, and
that the City failed to monitor the amount and type of waste
being dumped into the pit while the McElmurrays were
receiving sludge. Hall also faulted the plant's managers
for failing to keep records showing when and where dangerous
contaminants were placed on the McElmurray land. AR 0332 &
0782 . Hall recounted that the sludge applications were
unpredictable and variable in terms of the kinds and amount s


20



of contaminants contained in the sludge . This resulted in


"hot zones" of extremely high contaminant ratings on random


parts of the McElmurray farm. AR 0333 . 5


Of particular concern, Hall noted that over ten percent


of samples showed highly elevated cadmium concentrations, at


levels up to seven times the limits that had been


established at some Superfund sites, which were being


remediated under the Comprehensive Environmental Response,


Compensation, and Liability Act ("CERCLA"), 42 U .S .C . §


6901-6992k (2003) .


Further, Hall criticized the City's sampling practices,


explaining that Augusta took less than five cubic feet of


dirt per million cubic feet of soil, and only within the top


eight inches of the soil column . According to Hall, this


part of the soil is the least likely to retain contaminants


over time, due to leaching . Hall points out that the City's


data shows that the sludge contaminant concentrations became


highly erratic, with extreme metal concentration spikes,


beginning in 1986 . Hall opined that this time frame


coincided with a significant increase in mortality in th e


Dr . Goodroad reported that former county agent Bill Craven had
agreed that sludge applications on the McElmurrays' land were not
uniform. AR 0372 .


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McElmurrays' dairy herd, when compared with the state
average . AR 0335 .


In an expert report, Hall reported specific shortcomings
in Augusta's field update report data, which purport to
record "year to date" ("YTD") and "lifetime total" ("LTT")
applications of particular heavy metals on the McElmurrays'
land. The reports are inconsistent in that they show YTD
figures that match LTT figures and, relatedly, subsequent


application data that does not account for prior
applications in reckoning the LTT data.
In other instances, the field update report data show


cumulative LTT figures that decrease from one application to
the next . AR 0342 & 0350 . Still, Augusta's data indicated
that cadmium and molybdenum levels on the McElmurray farm
were above regulatory limits in certain instances, in
amounts ranging from 37% to 1400% . AR 0352-53 . Hall opined
that the high concentration of molybdenum in the
McElmurrays' silage was particularly serious, given the time
that had elapsed since the sludge was placed on the land .
The McElmurray samples were taken in 1998,' eight years after
Plaintiffs halted the land application program. AR 0356 .


Additionally, Hall faulted Augusta's data for lacking


information . Complete months and years were missing from


22



the field update reports, which meant that Augusta's sludge


application estimates were under-reporting the toxicity of


the soil by a wide margin. Hall also called attention to


the City's failure to monitor molybdenum, despite evidence


of its presence, given that it is a known hazard on land


used by dairy cattle . AR 0343 .6 Hall reported that after


the City learned about high concentrations of molybdenum in


its sludge, it failed to notify researchers at the


University of Georgia about the presence of this heavy


metal . Because the University scientists failed to test for


molybdenum, the researchers' advice to apply lime to raise


the soil's pH level, and thereby limit crop toxicity, was


faulty or incomplete. AR 0348 .


Dr . Ron Haaland, an Auburn University professor in the


School of Agriculture, was hired by Augusta's attorney as a n


To the extent it has any relevance, Hall noted that even though 40


C.F.R . Part 503 limits concentrations of molybdenum to 75 parts per
million ('ppm"), the sample concentrations on the McElmurrays' land
ranged from 25 ppm to almost 140 ppm . AR 0344 . Hall drew attention to
the fact that the USDA expressed concern about the molybdenum levels


permitted in the EPA's Part 503 Rules. The USDA recommended that the
EPA reduce the ceiling concentration limit for molybdenum in biosolids
to 54 ppm. Even under the EPA's more relaxed limit, 75 ppm, Hall
pointed out that Augusta's sludge was applied at about twice that level
in some cases. AR 0756. Nonetheless, it is not apparent that this
particular test result shows contamination of the soil, in light of the
McElmurrays' protestations that Part 503 does not apply in the instant


case .


23



.
Haaland performed testing at the McElmurrays' farm, and
concluded that the soil was not unsafe for growing food-
chain crops . Haaland blamed any ill effects from the sludge
on the McElmurrays' failure to pay attention to detail and
oversee the sludge application program properly . AR 0420 &
1374 .


The McElmurrays took issue with Haaland's soil-testing
methodology before the State Committee . Plaintiffs asserted
that Haaland attempted to find a way to discredit the
McElmurrays' samples and show no contamination on their
property. The McElmurrays claimed that Haaland set up their
property using a nine acre grid system, and pulled one
sample from each acre in the nine acre grid . Plaintiffs
submit that Haaland then combined the samples together to
dilute any results showing the presence of contaminants . AR
1868 .


Although Haaland is the only expert that the parties
have disclosed that tested the McElmurrays' soil and
disagreed with Plaintiffs' experts' conclusions of
contamination, the agency never responded to this criticism
of Dr. Haaland's methodology. At oral argument, the
government's lawyer declined to address this point, leaving


expert witness in the Superior Court litigation . AR 0423


24



lingering doubt about there being any evidence that supports
the government's determination that the land was not
contaminated.


Evidence related to the pH level of the soil also
supports Plaintiffs' position that the land was too polluted
to grow crops for human consumption . Food-chain crops may
not be grown when the pH of the sludge and soil mixture is
less than 6 .5 and the cadmium level therein exceeds 2 ppm .
40 C.F.R . § 257.3-5(a) (1) (i) (2007). Nor may such crops be
grown where the annual application of cadmium from solid
waste exceeds 0 .5 kilograms per hectacre,' or, .45 pounds per
acre. 40 C.F.R . § 257.3-5(a) (1) (ii) (2007) .


Plaintiffs' evidence shows that sewage sludge with
cadmium concentrations of between 4 .2 ppm (January 1980) and


1200 ppm (February 1990) were deposited on Plaintiffs'
farmland for ten years. Many fields contained annual
cadmium deposits that were two or three times the federal
limit . AR 1132-1157 . According to the information supplied
by Augusta, the pH level of the sludge and soil mixture at
the McElmurrays' farm was below the 6 .5 minimum
consistently . These figures were accepted as credible by
Plaintiffs and their experts, and the EPA, which relied on


25



Augusta's data only in reaching its conclusions in this


case . AR 892-913 .
Another factor supporting Plaintiffs' argument that the


land was contaminated is that certain metals react to the
soil's pH level differently. Augusta advised the
McElmurrays to keep the pH level of their soil elevated, to
attenuate the effect that certain heavy metals would have on
their crops . Generally, most metals will accumulate from
the soil into the plants grown thereon when the soil has a
low pH level. However, molybdenum and arsenic are the
exception to this rule . AR 1783 . According to experts
retained by both parties , molybdenum accumulates in plants
more easily and directly when soil pH levels are high . AR
0345 & 0411. As a result , Augusta's suggestion that


applying lime to raise the pH level would mollify any
contamination concerns was misleading or incomplete . AR
0348 .


Other specific evidence showed that heavy metals wer e
found at levels that were above the regulatory limits on the
McElmurrays' farm, making the land unfit for food grown for
human consumption . On one piece of property alone, antimony
levels registered at 96 .8 ppm, while the regulatory limit
was 4 ppm. Arsenic registered at 44 .2 ppm, more than twice


26



the amount allowed by law . Cadmium was found at a level of


6 .41 ppm, which was more than three times the level deemed
safe under the law. Selinium registered at 5.4 ppm,


although the cleanup standard provided under the law was set


at 2 ppm. Thallium was found at 51.6 ppm on that particular


piece of property, although the regulatory limit is 2 ppm.'


AR 1801-03 . The levels were similar on other parcels farmed


by the McElmurrays. AR 1803-06 . 8


At oral argument, the McElmurrays noted that the


administrative record showed that Augusta's lab reports


demonstrated that PCBs were placed on their land at a level


in excess of 5,000 ppm, even though the allowable limit


under EPA standards was 2 ppm . See40 C.F.R . 257.3-5


According to the evidence contained in the administrative record,
Thallium is quite dangerous to dairy herds. AR 0916. Plaintiffs
maintain that Thallium was used as a catalyst by NutraSweet in making


its sweetener, and NutraSweet was the largest user of the Augusta sewer
system during the 1980s . AR 1808 . The McElmurrays contend that the
City did nothing to limit large or illegal dumping, like that by
NutraSweet . A 1998 EPD audit provided some support for this contention,
finding that "[t]here are no local limits for conventional pollutants"


at the Messerly plant . AR 1669 .


a
This portion of the administrative record ;discusses the limits


allowed under Georgia law. At oral argument, Plaintiffs' attorney
conceded that federal law controlled, but reported that Georgia law was
coextensive with federal requirements in this respect . Although counsel
for Defendant expressed no opinion about the applicability or the
relevance of state law, the Government's lawyer did not disagree that
the relevant state and federal standards were the same .


27



(2007) . The government has not disputed that
characterization of the evidence, and it is supported by the
administrative record. AR 0535 .


Moreover, Plaintiffs submitted evidence that the sludge
contained hazardous levels of chlordane, and that it was
applied to their land from 1980 to 1985, even though it was
banned in 1978 . AR 843-883 & 1109-57 ; Velsicol Chemical
Co ., et al . : Consolidated Heptachlor/Chlordane Cancellation
Proceedings, 43 Fed. Reg. 12,372, 12,373 (March 24, 1978) .
Plaintiffs cite the following additional sources as evidence


that the sludge was applied to their land in violation of
federal law: AR 0329-85, 0623-837, 1064-1073 ;see40 C.F.R.
Part 257, 40 C.F.R. Part 261, 40 C.F.R. Part 258, Appendix


I and II .


The evidence in the administrative record shows that the
McElmurrays' land is contaminated and unfit for growing
food-chain crops . Plaintiffs maintain that they would have
violated the law by planting crops, putting human health and
welfare at risk . The McElmurrays submit that the high
mortality level experienced by their dairy herd is proof of
the dangers associated with planting food crops on their


land.


28



The court concludes that the evidence of contamination
on the McElmurrays' land was substantial, and the data
provided by Augusta was flawed.


III. The EPA's Contributions: Mehan, Brobst, Kaufman, and
Breen


The USDA submits that applications for prevented
planting subsidies, like the one submitted by Plaintiffs,
are usually based on the effects of natural disaster to land
and crops . Because Plaintiffs' claim had a more unusual
basis, alleged contamination of the land, the USDA had to
consider the alleged biological effects of sewage sludge on
Plaintiffs' land .


Therefore, in evaluating Plaintiffs' application, the
USDA sought the opinions of officials at the EPA. The USDA
recognized that it possessed limited knowledge regarding the
biological effects of sewage sludge on soil, and it sought
the advice of the EPA . An FSA handbook allowed it to do so,


in certain instances where it lacked the expertise to make
proper findings :
If a reviewing authority receives a request for
review involving a technical determination by a
Federal Agency other than FSA and NRCS, the .
reviewing authority shall . . contact a


.
representative of the applicable Agency t o


29



discuss and clarify the technical findings, as
needed[,] . . . [ and] accept as binding, written
factual findings or technical determinations of


the other Agency .
AR 1495 .


The USDA received varying responses from EPA officials
about the safety of the sewage sludge land application
program and the McElmurrays ' applications . Finally, the EPA
declared that its official position as to the McElmurrays'
petition was set out in a letter written by EPA' s Assistant
Administrator, G. Tracy Mehan, III . Consequently, the Court
will focus on Mehan's letter first .


On December 24, 2003 , Mehan wrote a letter responding
to a petition from the Center for Food, Safety seeking a


nationwide moratorium on the land application of sewage
sludge. Mehan' s letter was broad in scope and only
mentioned the McElmurrays ' situation in a brief aside .
Instead, Mehan considered a number of other issues in
rejecting the proposed moratorium, concluding that
"[p]etitioners do not present scientifically-based evidence
or documentation that links the land application of sewage
sludge or chemical pollutants allegedly contained in sewage
sludge to human health and environmental impacts that are


described in the petition." AR 1521 .


30



Mehan did address Augusta's sludge application program,
but all of his specific remarks focus on the Boyce dairy
farm's litigation against Augusta, which was a companion
case to the Superior Court lawsuit that the McElmurrays had
filed against the municipality . For any opinions that Mehan


does express about the Messerly treatment plant, Mehan
relies on Augusta's sludge data only, which has been called
into question by representatives of both parties in this
case, as well as disinterested third parties, and Augusta's
own representatives . AR 0023, 0332-35, 0342-43, 0350-56,
502-03, 0643-47, 0650, 0681, 0782, 0798-818, 0844-52, 0985-
86, 1512-15, .1668-71, 2604-05, 2758, & 2598 .


Specifically, Mehan recounts the Center for Food
Safety's assertion that, "On June 24, 2003, a court in
Georgia ruled that the land application of sewage sludge was
the legal cause of the damage to the farmland and the deaths
of the farm's prize-winning cattle[ .]" AR 1512 . Mehan
commented that the "EPA understands that the jury awarded
$550,000 of the $12 .5 million in damages sought by the
plaintiffs without any findings of fact .'" AR 1512 .


31



Mehan quoted from a letter written by Augusta's lawyer,


James Ellison, to the EPA about the verdict . According to


Ellison,


[o]ne of the breaches contended by the Boyces was
an alleged failure to keep and maintain good
records . Unfortunately and regrettably in the
early days of Augusta's land application program,
record-keeping was a problem, mostly due to
programming problems with the biosolids
application software used by Augusta. The
verdict may well have represented the jury's
dissatisfaction with the records maintained by
Augusta .


AR 1512 .9

Plaintiffs argue that Defendant is wrong to rely on


Mehan's letter as a factual finding or a technical


determination by the EPA that Plaintiffs' land was not


contaminated because Mehan's letter was not written in


response to Plaintiff's applications. Mehan's letter


contains no factual findings regarding Plaintiffs' land, and


is not addressed to the USDA . Rather, Mehan wrote in


response to a petition from a public interest group seekin g


Not surprisingly, Hallman, who also represented the Boyce family
in the Superior Court case, takes issue with Ellison's characterization
of the verdict . Hallman asserts that, under Georgia law, a general
verdict ratifies the claims contained in the operative complaint . AR
1556 (citing Ga . Code Ann . § 9-12-1) . What motivates any particular
jury verdict (and the amount of damages awarded) is subject to endless
speculation, and what happened in the Boyce case is not particularly
germane to whether the McElmurrays' land was contaminated . Still, the
information is material to the extent that it shows the basis for the
EPA's opinion .


32



a moratorium on the land application of sewage sludge in the
United States .

The procedure described in the FSA Handbook for
obtaining a technical determination from another agency
requires a representative of an agency to "contact a
representative of the applicable Agency to discuss and
clarify the technical findings, as needed . . . ." AR 1495 .
Such was not done by the USDA's representatives with Mehan .
In addition, Mehan makes clear that the petition relates
only to the application of sludge under Part 503 . AR 1504 .
As has been discussed, this law does 'not apply to the
McElmurrays,whose land applications of sludge ceased before
the enactment of the regulation in 1993 . In short, Mehan's
letter is largely irrelevant to the McElmurrays'
applications before the USDA .


USDA employees Ronald Carey and Tommy Weldon also asked
Robert Brobst, a member of the EPA's Biosolids Incident
Response Team ("BIRT") , about the contamination averments
made by the McElmurrays . AR 1227-1229 . In response, Brobst
opined in a letter that the McElmurrays' land was not
contaminated. AR 1230-1240 .


Because Brobst concluded that Augusta's data sets were
the most "complete and reliable," he used its information ,


33



and did not consider (or find any particular fault with) the

information provided by the McElmurrays . Brobst's letter
focused on cadmium levels at the farm, and at least in his
letter, he found that cadmium levels there were within
normal national background ranges . Notably, the data, which
Brobst claims was obtained in 1999, puts cadmium
concentrations on the Plaintiffs' land at .41 mg/kg, which
is twice the national average cited by Brobst, .175 mg/kg


.


AR 1281-1283 . Brobst also stated that other metals found in


the sludge, or on the land, were within normal background


ranges . AR 1238 .


On December 11, 2003, Brobst further explained his
results to the FSA State Committee . AR 1876-1899.
Plaintiffs emphasize that on that day, Brobst made an
important qualification to his earlier representation, when
he conceded that his original conclusions, which were based
on national background concentrations, should not, or need
not, be used because those levels are dissimilar to the
characteristics present in soil located in Burke County,
Georgia. AR 1888, 1477, & 1567-68 .: Perhaps more
importantly, Brobst admitted that one of the McElmurrays'
fields contained about forty to fifty times the allowable


.
34


lifetime loading level of cadmium . AR 2652



Brobst provides scant support for his determination that
the land was not contaminated . Although his letter cites to
some data in support of that conclusion, he never explains
where such data were found, or how he arrived at such
figures . AR 1237-38 . It is difficult, if not impossible,


to evaluate the trustworthiness of such a conclusion without


this information .


As Plaintiffs note, Brobst's letter does not address
information contained in Plaintiffs' applications, but
exclusively addressed data obtained from the City of Augusta
in 1999 . Brobst admitted that he did not evaluate the data
presented in support of Plaintiffs' applications for
prevented planting credit . Because Brobst concedes that his
conclusion is based on Augusta's unreliable, and to some
extent, invented, data, Brobst's finding has little merit on
its own.


On December 31, 2003, Plaintiffs submitted an affidavit
from Hugh Kaufman, a senior policy analyst at the EPA, to
the State Committee in an effort to rebut Brobst's position .
Kaufman explained that he had been involved with testing and
evaluating the McElmurrays' land, and opined that the
McElmurrays' land was contaminated, and unfit for growing
food-chain crops . AR 1478, 1487-1489, & 1548 .


35



On January 28, 2004, Barry Breen, the EPA's Principal


Deputy Administrator, wrote a letter to the FSA explaining
that Kaufman' s affidavit was not the official view of the
EPA, and that Mehan's letter was the agency's position. AR
1545 . Indeed, the FSA relied on Mehan's letter as the
official position of the EPA. AR 2600. Yet, there is no
evidence that Mehan ever reviewed the Plaintiffs'
applications, other data in the administrative record, or
any of the reports detailing the sewage sludge applications


on Plaintiffs' land from 1979 to 1990. AR 2663. USDA
employee Carey allowed that Mehan made no specific finding
that the McElmurrays' land was not contaminated . AR 2664-


66 .
The EPA's unexplained rejection of Kaufman's position,
in favor of the largely irrelevant Mehan letter shows that
the decision was not based on substantial evidence . It was
arbitrary and capricious for the USDA to defer to Mehan's
letter as a technical determination or a written factual
finding. Sierra Club v. Martin, 168 F.3d 1, 4-7 (11th Cir .


1999) . To the extent that the USDA relied on Brobst's
opinions, that was arbitrary and capricious because Brobst
did not consider all the relevant data . Motor Vehicle Mfrs


.


Ass'n, 463 U.S. at 43 .
36



An agency may discredit the uncontradicted witness
testimony based on credibility grounds, but only if the
agency provides reasons for its credibility determination.
Tieniber v. Heckler, 720 F.2d 1251, 1254-55 (11th Cir.
1983) ; NLRB v. Walton Mfg._ Co ., 369 U.S. 404, 406-07 (1962) .
Breen failed to justify why the EPA accepted Mehan's letter
over Kaufman's affidavit, or even attempt to explain how
Mehan' s letter could qualify as a written factual finding or
technical determination of the McElmurray matter . Moreover,
no one at the EPA ever took the time to evaluate Plaintiffs'
applications or their experts' conclusions .


Likewise, Breen failed to investigate the findings made
by Kaufman. Carey asked Breen what the basis was for
Kaufman's statement that the McElmurrays' land had received
sludge applications making the land unsuitable for growing
food-chain crops . Breen replied "I do no have information
with which to answer this question." AR 1545 .


As the Supreme Court has stated, "[t]he substantiality


evidence must take into account whatever in the record


fairly detracts from its weight . This is clearly the


significance of the requirement . . . that courts consider


the whole record." Universal Camera Corp. v. NLRB, 340 U.S .


474, 488 (1951) .


37



Other evidence of record calls into question the


fairness and objectivity of the EPA's opinions with respect


to the sludge land application program . The administrative


record contains evidence that senior EPA officials took


extraordinary steps to quash scientific dissent, and any


questioning of the EPA's biosolids program .


On February 4, 2004, Dr . David Lewis, a former EPA


employee, testified before the House of Representatives'


Subcommittee on Energy and Mineral Resources about improper


use of the scientific peer review process, by senior EPA


officials, with respect to a University of . Georgia study


relating to the Messerly plant, and the deficiencies in the


agency's position in support of land application of sewage


sludge. AR 1610 & 1616.10 Lewis criticized the EPA for its


handling of the allegations involving the Messerly plant in


Augusta, especially its reliance on the dubious dat a


provided by the City . AR 1622-24 .


Lewis' work as a microbiologist first drew national and
international attention in the early 1990s when six dental patients of
the same dentist in Florida contracted HIV . Lewis published a series
of articles in the leading British medical journal The Lancet , showing
that blood trapped in lubricants inside dental devices can escape
disinfection and spread HIV, the virus that causes AIDS . This research
prompted new heat sterilization guidelines worldwide . AR 1625. .


38



Lewis explained that he had worked at the EPA for
thirty-one years, and was forced to resign. in May 2003
because his biosolids research was at odds with official EPA
policy. AR 1619. Lewis testified before Congress that the
EPA had politicized scientific research at the agency, and


utilized unreliable and fraudulent data to support the
continuation of the sludge land application program. AR
1619 . Lewis recounted to the Committee that he researched
adverse health consequences of sewage sludge from 1996 to
2003 . Specifically, Lewis wrote a research paper with
University of Georgia scientists that" linked chemical
irritants from airborne dusts, as a result of sewage sludge
applications, to children's illnesses . AR 1620 .


Lewis reported that a senior EPA official, Dr . John


Walker, acted unethically in protecting the Part 503 sludge
Rule, which Walker had helped to create . Lewis claimed that
Walker had stated that he was qualified to review Lewis'
microbiological research, although Walker was untrained in
the field. Lewis stated that Walker approached a friend who
was a corporate executive at a company, involved in the
sewage sludge business to help come up with criticisms of
Lewis' paper. In addition, according to Lewis' testimony,
Walker asked a USDA microbiologist for help with a technica l


39



review, and then plagiarized the USDA official's work as his
own. Thereafter, Lewis stated that Walker distributed the
critique widely, within the EPA, to trade associations, and
among regulated businesses in the industry . AR 1621


.


Walker also distributed an anonymous twenty-eight page
critique of Lewis' research, which had not been peer
reviewed, and contained false scientific arguments aimed at
discrediting Lewis . Lewis told the Congressional panel that
a colleague at the National Academy of Sciences, Ellen
Harrison, testified in a separate proceeding that the paper


damaged Lewis' reputation. AR 1621-22. Thereafter,
Walker's associates attempted to pressure EPA Administrator
Christine Todd Whitman to end Lewis' research immediately .


AR 1627 . Walker faced no discipline for his actions by the
EPA. AR 1620-21 .


On May 28, 2003, the EPA forced Lewis to resign for
publishing articles in the leading scientific journal
Nature, which were critical of the EPA's biosolids policies .
During his Congressional testimony, Lewis detailed how EPA
administrators attempted to force him out after his article,


"EPA Science : Casualty of Election Politics," was published
in Nature in 1996 . Lewis described how further retaliation
in 1999 by senior EPA officials, against him and his


40



supervisor, Dr . Rosemarie Russo, prompted a separate hearing
before Congress and helped spur enactment of the "No Fear"
Act, a law protecting federal employees against retaliation.
AR 1625-27 .


The distribution of the false scientific reports by
Walker caused University of Georgia officials to scrap thei r
plans to hire Lewis after he left the EPA. Even letters
from United States Senators James Inhofe and Charles
Grassley, in an attempt to save Lewis' job at the EPA, were
ineffective . AR 1627-28 . Lewis reported that he had been
blacklisted by Walker, and that he remained unemployed since
he left the EPA. Lewis indicated that he had taken up an
unrelated area of research without compensation because of
the EPA's actions, stating that he was directing research on


.


hepatitis C infections in Egypt . AR 1628


IV. Summary Findings and the Appropriate Remedy
Any data that was considered by Mehan and Brobst that


related to the McElmurrays' farm was that collected as of


1999 . Neither official considered Goodroad's 2001 analysis


detailing the deficiencies in the data collected as of 1999 .


The men did not discuss or acknowledge the serious


41



limitations and deficiencies of Augusta's data . Neither
official considered Plaintiffs' applications or the reports
of their experts contained therein . AR 1235.


Neither Mehan nor Brobst made either a written factual
finding or a technical determination about Plaintiffs`
applications. Mehan, who represented the EPA's official
position, did not find any material facts as to the
application, and his letter was not a technical


determination, but a statement of policy . Brobst may have
attempted to produce a technical determination, but he did
not consider the McElmurrays' applications, . just old data,
and he failed to consider anything the McElmurrays or their
experts had to say to the contrary. Breen's conclusory
rejection of the specific findings contained in Kaufman' s
affidavit was not binding on the USDA .


The administrative record indicates that the members of


the FSA State Committee reviewed the Plaintif f
applications thoroughly . The members of the State Committee
were familiar with Plaintiffs ' expert reports, and the
import of that evidence . That committee voted in favor of
the applications for credit . Likewise, EPA employee Kaufman
was familiar with the McElmurrays' applications, expert
reports, and the testing on their land. He had conducted an


42



investigation by visiting Augusta and looking into the
problems at the Messerly treatment plant . Kaufman's
affidavit indicates that the land is unfit for growing crops
for human consumption. AR 1487-1489. Hearing Officer Jones
also considered the evidence in the case, but his comments
indicated that he felt he was bound by EPA opinions to which
he ought not have deferred. AR 2144 . See infra, note 4 .


In short, it appears that the only persons to consider


Plaintiffs' applications ended up ruling in their favor, or


did not believe they had the authority to rule in the


McElmurrays' favor. The USDA's decision. to accept a


contrary decision, based on no review of the applications by


the EPA, was arbitrary and capricious . The conclusions of


the EPA were not based on substantial evidence, and the USDA


was not compelled by their handbook to rely on the letters


presented in this case .1 1


An administrative determination cannot be upheld withou t


an articulated , rational connection between the facts before


the agency and the agency' s decision . Zahnd v. Sec'y of


Dep't of Agric . , 479 F .3d 767, 773 (llth,Cir . 2007) .


Contrary to the McElmurrays' suggestion, that is not to say that
the USDA could not defer to a sister agency if that agency made
appropriate findings .


43



Because the record supports Plaintiffs' petition for
farm subsidies, the Court reinstates the original decision
of the FSA State Committee, and directs the USDA to grant
the McElmurrays' application for prevented planting credits .
Remand is inappropriate because the record was unevaluated
or ignored by agency officials at the USDA and the EPA. In
other words, while the record was inadequate to support the
agency's decision, it is adequate to support Plaintiffs'
applications.


The Court has the obligation under the APA to conduct


judicial review of administrative decisions . That statute
requires the, Court to "hold unlawful and set aside agency
action, findings, and conclusions found to be . .
arbitrary and capricious ." 5 U.S .C . § 706(2)(A) . The
agency "is not entitled to a second bite of the apple just
because it made a poor decision--if that were the case,
administrative law would be a never ending loop from which
aggrieved parties would never receive justice ." McDonnell
Douglas Corp. v. NASA, 895 F. Supp. 316, 319 (D.D.C . 1995) ;
Nelson v. United States, 64 F. Supp. 2d 1318, 1326 (N.D. Ga .
1999) ; Florida Power & Light Co. v. Lorion, 470 U.S. 729,
744 (1985) .


44



CONCLUSION


For the reasons explained above, the USDA's motion for
judgment on the administrative record is DENIED, and the
McElmurrays' cross-motion is GRANTED . Dkt. Nos. 54 & 57,
respectively. The Court hereby DIRECTS the USDA to grant
the McElmurrays' application for prevented planting credits .


SO ORDERED, this day of February, 2008.


JUDGE, UNITE STATES DISTRICT COURT
SOUTHERN DIS RICT OF : GEORGIA


45