2011-01-03_GENERAL DOCUMENTS - P2008043 (2)

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accordance with law." 5 U. S.C. § 706; Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 736 (D.C.Cir.2001). "In making this inquiry, the court `must consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotations omitted). At a minimum, the defendants must have considered relevant information and articulated an explanation establishing a "rational connection between the facts found and the choice made." Bowen v. Am. Hosp. Ass'n, 476 U.S. 610, 626, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986); Tourus Records, 259 F.3d at 736. Hubbard v. U. S., 496 F.Supp.2d 194, 199 (D.D.C. 2007) (emphasis added). The EAB has expressly held EPA to a similarly demanding requirement regarding completeness of the administrative record: Permitting authorities have "an affirmative duty to inquire into and consider all relevant facts" pertaining to the specific statutory and regulatory criteria established for each permit program, and they must ensure they have developed an adequate record upon which to make a reasoned permit decision. Scenic Hudson Pres. Conference v. Fed. Power Comm'n, 354 F.2d 608, 620 (2d Cir. 1965); see also In re Pub. Serv. Co. of N.H., 1 E.A.D. 332, 344 (Adm'r 1977) ("[t]he courts have made clear that the Agency must take affirmative steps to obtain the information necessary to [render] sound decisions under the statutes it administers, even at the cost of delay"). This Board, for example, has remanded numerous permitting decisions because the permit issuers failed to expend the time and effort needed to adequately explore and document their analyses of mandatory permitting criteria. See, e.g., In re Phelps Dodge Corp., 10 E.A.D. 460, 522-25 (EAB 2002) (Endangered Species Act critical habitat data); In re Ash Grove Cement Co., 7 E.A.D. 387, 414-19 (EAB 1997) (air emissions limits for mercury and thallium); In re W. Suburban Recycling & Energy Ctr., L.P., 6 E.A.D. 692, 710-12 (EAB 1996) (Clean Air Act prevention of significant deterioration data); In re Envotech, L.P., 6 E.A.D. 260, 299-300 (EAB 1996) (UIC waste minimization certification required under 40 C.F.R. § 146.70(d)(1)). In re Environmental Disposal Systems, Inc., 12 E.A.D. 254, 274 (EAB 2005) (emphasis added). Where, as here, supporting information is found lacking in the administrative record, the proper remedy is to remand the decision back to the agency to ensure that any permitting decision is based upon a complete record: 10