Wagner Seed Company, Inc. v. George Bush, as President of the United States of America ( 1991 )

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

Dissenting opinion filed by Circuit Judge STEPHEN F. WILLIAMS.

D.H. GINSBURG, Circuit Judge:

After complying with a clean-up order issued by the Environmental Protection Agency under the so-called Superfund law, Wagner Seed Company sought reimbursement of its expenses from the agency. The EPA denied Wagner’s claim, concluding that the reimbursement provision of the statute does not apply to Wagner because the Congress passed it after Wagner had received the EPA clean-up order. Wagner then sued.

The district court dismissed the case, holding first that the EPA’s is a permissible interpretation of the statute to which the court must defer under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and second that in any case the tenets of statutory construction favor the EPA’s reading. Wagner Seed Co., Inc. v. Bush, 709 F.Supp. 249, 252 (D.D.C.1989). We conclude that the statute is ambiguous as to whether reimbursement is available to a party that received a clean-up order prior to enactment of the statute; we affirm, however, because like the Seventh Circuit, see Bethlehem Steel Corp. v. Bush, 918 F.2d 1323 (7th Cir.1990), we believe that the EPA’s interpretation of the relevant provision, resolving that issue against reimbursement, is reasonable.

I. FACTS

In December 1985, the EPA issued a clean-up order, under § 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERC-LA), 42 U.S.C. § 9606(a) (1982), requiring Wagner immediately to remove hazardous substances that had been released when a fire caused by lightning destroyed its warehouse. Wagner sought to enjoin enforcement of the order, but its motion for a preliminary injunction was denied by a district court, Wagner Seed Co. v. Daggett, C.V. No. 86-0097 (E.D.N.Y. Jan. 27, 1986); the Second Circuit affirmed, 800 F.2d 310 (1986), holding that CERCLA does not provide for pre-enforcement review, see id. at 314-15. Wagner then carried out the required clean-up.

By October 17, 1986, Wagner had substantially completed the clean-up. (The Government asserts, and Wagner does not dispute, that it had by then expended 98% of its ultimate clean-up costs.) On that date, the Congress passed the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613, which amended CERCLA by adding, inter alia, the following provision:

Any person who receives and complies with the terms of any order issued under subsection (a) of this section may, within 60 days after completion of the required action, petition the President for reimbursement from the [Superfund] for the reasonable costs of such action, plus interest.

§ 106(b)(2)(A), 42 U.S.C. § 9606(b)(2)(A) (emphasis added).

In January 1988, the EPA certified that Wagner had complied with the clean-up order, and within 60 days Wagner petitioned for reimbursement under § 106(b)(2)(A), on the ground that the release of hazardous materials was caused by an act of God. See § 101(1), 42 U.S.C. § 9601(1). In June 1988, the agency rejected Wagner’s claim in a letter holding that the reimbursement provision of SARA, § 106(b)(2), applies only to clean-up orders received after the Congress adopted that provision. See Letter from J. Winston Porter, Assistant Administrator for Solid Waste and Emergency Response 3-4 (June 9, 1988). Wagner then instituted this suit, as authorized by § 106(b)(2)(B).

Wagner asserts that the EPA erred in interpreting the phrase “receives and complies” in § 106(b)(2). As Wagner reads the statute, it requires only that an order have been received and complied with by the time reimbursement is sought. The crux of its dispute with the EPA, therefore, is whether the Congress intended the term “receives” to apply retrospectively or only prospectively from the date the statute was adopted.

II. Standard op Review

Because this dispute involves the meaning of a statutory term interpreted by the government agency with authority to administer the statute, we first consider whether we are free to construe the term independently or owe deference to the agency’s interpretation. Preliminarily, we note that although § 106 vests initial au-

thority in “the President” and not in the EPA, the President has delegated his authority under § 106 (and under much of CERCLA) to the EPA, as authorized by 42 U.S.C. § 9606. See Exec.Order No. 12,580, § 4(d)(1), reprinted in 42 U.S.C.A. following § 9615. That delegation is sufficient to render the EPA the administering agency for purposes of Chevron. See Eagle-Picher Indus. v. EPA, 759 F.2d 905, 909 n. 9, 920 (D.C.Cir.1985) (deferring to the EPA because it “has been entrusted [by the President] with the administration of CERCLA”).

Under Chevron, when the court is presented with an interpretation of the statute by the agency that administers it, and “the statute is silent or ambiguous with respect to the specific issue,” then the court must defer to that interpretation if it is reasonable. See Mead Corp. v. Tilley, 490 U.S. 714, 722, 109 S.Ct. 2156, 2161-62, 104 L.Ed.2d 796 (1989); NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 123, 108 S.Ct. 413, 420-21, 98 L.Ed.2d 429 (1987); American Mining Congress v. EPA, 824 F.2d 1177, 1182 (D.C.Cir.1987). The controlling principle of Chevron is that when the statute, viewed in light of its legislative history and the traditional tools of statutory construction, is ambiguous, the administering agency is entitled to make “a reasonable policy choice,” 467 U.S. at 843 & n. 9, 845, 104 S.Ct. at 2781 n. 9, 2783. Before we address the issue of whether the statute is indeed ambiguous, we consider Wagner’s several arguments against the application of Chevron deference.

First, Wagner contends that Chevron is inapplicable because the statute gives it a de novo right of action in district court, rather than remitting it to a proceeding merely for judicial review of agency action. In this vein, Wagner points out that the statute requires a party seeking reimbursement to prove “by a preponderance of the evidence” that it is not liable for the cost of complying with the EPA’s clean-up order. 42 U.S.C. § 9606(b)(2)(C). Wagner argues that for a court to review de novo the EPA's factual findings on liability under that standard, only to defer under Chevron to the EPA’s interpretation of the law, would invert “the traditional standard for judicial review of administrative actions,” in which the court affords to the agency greater deference on issues of fact than on issues of law. The implication is that the Congress should not be thought, absent explicit direction, to have intended such a radical departure from “tradition.”

The issue for the court is not whether Wagner is liable under the standard of paragraph (b)(2)(C), but whether Wagner is “a person who receive[d] and complie[d]” with an order (as those terms are used in paragraph (b)(2)(A)), which status is a prerequisite to seeking reimbursement. Wagner’s contention that all issues are to be determined de novo, and that the judicial action must proceed without regard to the EPA’s administrative decision, is absurdly rigid, departing from common sense as well as from “tradition.” For if Wagner were correct, then the court would not defer either to the EPA’s determination whether a party has “complied” with the agency’s clean-up order. It would be truly bizarre, however, for a court to determine de novo that issue, which may involve both technical and policy questions within the expertise of the agency. That a private party whose claim has been considered by an administrative agency has a right to a trial de novo on issues of fact simply does not mean that the court will deny deference to the agency on an issue of statutory interpretation. See Chandler v. Roudebush, 425 U.S. 840, 843, 864, 96 S.Ct. 1949, 1961, 48 L.Ed.2d 416 (1976) (right to trial de novo without deference to EEOC’s findings of fact); Griggs v. Duke Power Co., 401 U.S. 424, 433-34, 91 S.Ct. 849, 854-55, 28 L.Ed.2d 158 (1971) (“The administrative interpretation of the Act by the enforcing agency [EEOC] is entitled to great deference.”).

Second, Wagner draws an analogy between the present action and an action brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., in which the agency’s decision to deny a claim is accorded no deference. The FTCA and § 106(b)(1) are indeed similar in one respect: the presentation requirement in the former, 28 U.S.C. § 2401(b), and the petition requirement in the latter, oblige the plaintiff first to have given the defendant agency an opportunity to resolve the dispute without a lawsuit. The two regimes differ, however, in a way more material to the Chevron question: the many agencies covered by the FTCA are by that law merely authorized to process and pay tort claims; in contrast the EPA, acting under CERCLA, is charged with the administration of a complex regulatory scheme. The latter agency alone may therefore lay claim to the administrative policy discretion necessarily attendant to that task.

Third, Wagner argues that Chevron deference is not in order because the EPA issued its prospective-only interpretation of § 106(b)(2) in a decision letter, “without a hearing, without the use of an administrative law judge, without briefing, and, indeed, without demonstrating any consideration or analysis of the issues raised by Wagner[’s] claim.” “Such a blind process,” we are told, “makes the EPA’s position merely ‘interpretive,’ and not entitled to the deference accorded ‘legislative’ rule-making.”

At the outset, we wish to be clear that we do not accept Wagner’s premises that the agency’s decision process was defective and that it gave no consideration to the issues involved, a claim that is at best hyperbolic. It may well be that the greater the procedural trappings that attend an agency’s interpretive moment, the less reason for judicial concern that the interpretation was off-handed or opportunistic, susceptible to discard tomorrow when another permissible interpretation better suits the agency’s needs of the day. Likewise, the opinion of a low-level bureaucrat, given in a non-adversarial or informal context, may or may not be deemed sufficiently relevant to the agency’s administration of the law to warrant deference under Chevron; but that is not at all the case before us.

The EPA’s interpretation of § 106(b)(2) was given after due consideration in order to resolve an important and recurring matter before it. The decision letter under review poses the question whether retroactive application to Wagner is authorized or appropriate, considers the legislative history of the statute, and upon analysis describes its purpose as the creation of an incentive to comply with agency clean-up orders. Furthermore, the agency has applied this interpretation consistently. See Bethlehem, Steel, 918 F.2d at 1325 (EPA had reached same conclusion one month prior to decision letter in this case); Gary Steel Supply Co. v. Reagan, 711 F.Supp. 471, 473 (N.D.Ill.1989) (considering another like decision issued three months after agency decision in this case; court deferred to agency interpretation).

In any event, it simply is not the law of this circuit that an interpretive regulation does not receive the Chevron deference accorded a legislative regulation. See Theodus v. McLaughlin, 852 F.2d 1380, 1383-84 (D.C.Cir.1988); see also Midtec Paper Corp. v. United States, 857 F.2d 1487, 1496-97 (D.C.Cir.1988) (deference due to a permissible agency interpretation whether it arises out of rulemaking or adjudication).

Seeking post-Chevron authority for its position, Wagner relies principally upon Doe v. Reivitz, 830 F.2d 1441, 1445-47 (7th Cir.1987), amended, 842 F.2d 194 (7th Cir.1988), which held that a lesser degree of deference is owed to an “agency interpretation” than to the “high-powered” legislative type of regulation to which the Court deferred in Chevron. The vitality of Reiv-itz is unclear, however — except in the present context. For when the Seventh Circuit considered the very EPA interpretation now before us, it deferred pursuant to Chevron, rejecting the argument that the courts should give less deference to an “interpretive ruling” than to a “legislative ruling,” Bethlehem Steel, 918 F.2d at 1327 n. 3 (relying upon, among others, Midtec Paper Corp., 857 F.2d at 1496-97, and Theodus, 852 F.2d at 1382-84). Thus, whatever Reivitz means, the Seventh Circuit itself does not believe that it means that the EPA’s interpretation of the statute in this case should receive less than the usual deference due under Chevron.

Fourth, Wagner suggests that we should not defer to the EPA’s interpretation of § 106(b)(2) because the reimbursement action it sets up is intended to provide redress where the agency has “made a mistake,” i.e., issued a clean-up order to a party that is not liable. We take Wagner’s point to be that the agency will be reluctant to admit having made a mistake — and what bureaucracy is not? The question, though, is whether the agency will therefore give too narrow a reading to the statute.

Wagner’s point would have real force as applied to the agency’s particularized decision respecting liability; indeed, that may well be why the Congress provided for de novo judicial review of that type of decision. We deal here, however, with a broader question of statutory interpretation. It is fortuitous that this question arises as a potential bar to recovery by Wagner and, apparently, a few other parties whose notice and compliance straddled enactment of SARA. True, under one interpretation of § 106(b) the agency may avoid the necessity to decide whether, in the affected cases, it erred in issuing its original clean-up order. That is surely too slight a gain, however, for the court to consider the agency an interested party whose interpretation is therefore not to be accorded the deference ordinarily due to the agency with responsibility for administering the law.

Fifth, Wagner contends that because this dispute concerns a “pure question of statutory interpretation,” no deference is due to the EPA. In this regard, it relies upon certain decisions of this court that were superseded by the Food Workers case, 484 U.S. at 123, 108 S.Ct. at 420-21. The Court there confirmed that judicial deference is owed to the agency under step two of Chevron even when the only ambiguity involves “a pure question of statutory interpretation.” See id. at 133-34, 108 S.Ct. at 426 (Scalia, J., concurring); Theodus, 852 F.2d at 1382-83, 1386-87 (D.C.Cir.1988).

Sixth, Wagner argues that the question of retroactive application vel non is inappropriate for administrative determination because its resolution “is devoid of political or technical considerations.” Chevron admits of no such limitation, however. As a practical matter, resolution of an ambiguity in a statute, if it has consequences, inevitably requires the agency to consider competing policy objectives; it is the reconciliation of such conflicts that is entitled to judicial deference under Chevron, 467 U.S. at 865, 104 S.Ct. at 2793.

Here, the EPA views its task as efficiently to use the scarce resources available to it in order to provide an incentive for a potentially responsible party to undertake a response action — a view deserving of special deference because the agency played an important role in the legislature’s development of SARA, see Bethlehem Steel, 918 F.2d at 1328. When measured against that purpose, either of the two interpretations being advanced involves an imperfect fit. Wagner’s interpretation, which would entail compensating those who had completed such action at the time the statute was passed, is overinclusive; the EPA’s interpretation, which would deny compensation to those who had received an order but (unlike Wagner) had not made substantial clean-up efforts at the time of passage, is underinclusive. In these circumstances, the agency’s decision as to which interpretation brings about the better allocation of resources is a policy judgment, and as such it is entitled to Chevron deference.

Additionally, after this case had been argued, the Supreme Court decided Adams Fruit Co. v. Barrett, 494 U.S. 638, 110 S.Ct. 1384, 1390-91, 108 L.Ed.2d 585 (1990), and we invited the parties to submit supplemental briefs on the relevance of that decision to this ease. In Adams Fruit, employees sued their employer for injuries they allegedly suffered when the employer intentionally violated the motor vehicle safety provisions of a federal worker protection statute. The employer, relying in part upon the Labor Department’s interpretation of the statute, argued that the state workers’ compensation law provided the exclusive remedy. In the course of rejecting that argument, the Supreme Court held that even if the federal statute was ambiguous on this point, the Labor Department’s interpretation of the statute was not entitled to deference: the Congress had given the Department a role in administering the statute, requiring the Secretary to promulgate standards implementing the motor vehicle provisions, but it had not delegated to the Department the power to “regulate the scope of the judicial power vested by the statute.” Id. 494 U.S. at -, 110 S.Ct. at 1391.

Under the reimbursement scheme of SARA, by contrast, interpretation of the “receives and complies” requirement of § 106(b)(2)(A) is the agency’s responsibility in the first instance. In interpreting this language, therefore, the EPA was not overstepping its proper administrative role in order to “regulate the scope of the judicial power” in a private cause of action. See also Food Workers, 484 U.S. at 123, 108 S.Ct. at 420-21 (Chevron deference applied where agency’s interpretation had effect of precluding judicial review). On the contrary, as we have just seen, it was making a decision about the best allocation of the scarce resources made available by the Congress for the purpose of providing an incentive for clean-ups that might not otherwise be undertaken by a potentially responsible party. If the EPA had purported to determine the manner in which a person seeking reimbursement must “file an action,” or which is “the appropriate United States district court” under § 106(b)(2)(B), the paragraph creating the cause of action, the rationale of Adams Fruit would seem to apply. See also United States v. Ottati & Goss, Inc., 900 F.2d 429, 434 (1st Cir.1990) (court not legally bound by first sentence of § 106(a) to enter the remedial injunction that EPA non-arbitrarily thinks proper). Because the EPA is obliged, however, to rule upon the meaning of the terms of § 106(b)(2)(A) in response to a petition for reimbursement, and in doing so must resolve the policy issue raised by the petition, it can hardly be rebuffed, when it later asserts its claim in court to deference under Chevron, for trying to “bootstrap” itself into an area in which it has “no jurisdiction.” Cf. Adams Fruit, 494 U.S. at -, 110 S.Ct. at 1390-91.

III. Application

Having determined that Chevron applies, we ask first whether “the intent of Congress is clear.” 467 U.S. at 842-43, 104 S.Ct. at 2781-82. If we can, by “employing traditional tools of statutory construction, ascertain[ ] that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Id. at 843, 104 S.Ct. at 2782.

Each party contends that the plain language of the statute unambiguously supports its position. By its terms, § 106(b)(2)(A) provides a remedy for “[a]ny person who receives and complies” with a clean-up order. The EPA reads this phrase to refer only to a person who receives an order after the statute was enacted. Wagner sees in it the Congress’s intent to reimburse any entity that ever received or receives an order, so long as it petitions for reimbursement within 60 days of completing its compliance with that order. The issue thus joined is whether the statute, which lists two conditions (“receives and complies”) that must be satisfied by a party prior to petitioning for reimbursement, applies to a party that had satisfied the first condition before the statute was adopted.

The obvious starting point for interpretation is the presumption against re-troactivity: “congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result,” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988). If the presumption against retroac-tivity is not rebutted by clear terms to the contrary—and none is to be found in § 106—then the statute applies only prospectively. See, e.g., United States Fidelity & Guaranty Co. v. United States, 209 U.S. 306, 314, 28 S.Ct. 537, 539, 52 L.Ed. 804 (1908) (a statute “ought not to receive [retroactive] construction unless the words used are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied”).

Wagner asserts that it is not a matter of retroactivity to apply the statute to a claim that did not accrue until after the statute was adopted—viz. when Wagner completed its compliance with the clean-up order. If Wagner is correct, then the rule against retroactivity precludes the application of a new statute to a case that could have been brought before the statute was adopted, but is not relevant where some but not all elements of the claim predate the statute. See Reynolds v. United States, 292 U.S. 443, 448-49, 54 S.Ct. 800, 803, 78 L.Ed. 1353 (1934) (“A statute is not rendered retroactive merely because the facts or requisites upon which its subsequent action depends, or some of them, are drawn from a time antecedent to the enactment.”); Shwab v. Doyle, 258 U.S. 529, 534-35, 42 S.Ct. 391, 392, 66 L.Ed. 747 (1922) (“laws are not to be considered as applying to cases which arose before their passage unless that intention be clearly declared”) (emphasis added); Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 1583, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring) (“It is at least arguable that it does not constitute retroactive application to apply a provision dealing with the award of costs or fees in litigation to all litigation that has not yet terminated when the provision takes effect.”).

The Government does not rebut Wagner’s argument, and we find no direct authority to resolve the issue it has raised. Thus, we reject the EPA’s claim to ownership of the plain language of the statute.

Wagner’s claim to the plain language of the statute turns out to be just that § 106(b)(2)(B) is a remedial provision to be liberally construed, see, e.g., Bell v. Brown, 557 F.2d 849, 853 (D.C.Cir.1977). If the language of the statute were plain enough, of course, Wagner would not be invoking a canon of liberal construction; but under Chevron the language need not be pellucid without the aid of a special lens in order for Wagner to prevail. We need only be able, with the application of “traditional tools of statutory construction,” to discern a congressional “intent[] on the precise question at issue.” The ‘rule’ of construetion upon which Wagner relies, however, is little more than a ‘thumb on the scale’ in the uncertain category of cases to which it applies; unlike, for example, the rule of ejusdem generis, it cannot supply a precise meaning to an otherwise ambiguous text. Thus, the rule in question cannot supply the specific congressional intent that Chevron requires.

Nor is legislative history helpful in resolving the issue. The EPA cites a statement made by Rep. Eckart:

[Section 106(b)(2) ] is intended to provide incentives for parties to undertake the work required in the order, even [if] they have legal objections to performing the work. Thus, effective after the date of enactment of these amendments, a party who receives an order can begin the work of environmental cleanup while preserving its right to raise objections in a subsequent proceeding.

132 Cong.Rec. 29779 (1986). We agree with the district court, see 709 F.Supp. at 251 & n. 2, that this statement is too general to evince the specific intent to preclude recovery where the cleanup comes after the effective date of the statute. We note, on the other hand, that nothing in the legislative history indicates an affirmative intention to allow recovery where the order was issued before the effective date of the statute.

The traditional tools of statutory construction thus provide us no plain and unambiguous answer to the question whether the Congress intended § 106(b)(2) to apply to any person who had already received a clean-up order when it was enacted; therefore under Chevron we must accept the agency’s interpretation if it is merely permissible. The EPA’s construction of the statute is clearly a reasonable one: it is consistent with the Congress’s objective of providing an incentive for any potentially non-liable party to begin a clean-up, and it deals in a reasonable, albeit not a compassionate, way with anyone who was unfortunate enough to have received a clean-up order before the Congress made provision for reimbursement.

IV. Conclusion

Because the Congress left it unclear whether the remedy of § 106(b) is available to a person in Wagner’s position, we are constrained to defer to the EPA’s reasonable interpretation of the statute to deny reimbursement. The judgment of the district court is therefore

Affirmed.