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

STEPHEN F. WILLIAMS, Circuit Judge,

dissenting:

Under § 106(b)(2) of CERCLA (the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended), 42 U.S.C. § 9606 (b)(2), any “person who receives and complies” with an abatement order under § 106(a) may seek reimbursement from the President. If his petition is rejected, he may file suit against the President, and recover if he establishes in court that he was not liable for response costs under CERCLA § 107(a), 42 U.S.C. § 9607 (a). Here the Environmental Protection Agency, as delegee of the President’s duties under § 106(b), see Exec.Order No. 12,580, § 4(d)(1), 52 Fed.Reg. 2923, 2926 (1987), denied Wagner Seed’s petition. It read the quoted language as allowing relief only for persons who received their abatement orders after the date of enactment, October 17, 1986, though the words of the statute impose no such condition. If we owed the EPA deference on this interpretive issue, I would agree with the majority’s decision to reject Wagner’s suit; the statute does not clearly resolve the question and the EPA’s reading is not unreasonable. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984). But Chevron calls for deference only when a court reviews an agency’s construction of a statute “which it administers”, id. at 842 , 104 S.Ct. at 2781 (emphasis added). While Congress put the President in charge of many aspects of CERC-LA, it gave the administration of § 106(b)(2) to the courts, not to him or his delegee. EPA has occasion to interpret the “receives and complies” language of § 106(b)(2) only because of its authority (as the President’s delegee) to pay the petition *926 er off and thus avert a suit. This involvement seems to me too peripheral to make Chevron applicable.

Adams Fruit Co. v. Barrett, 494 U.S. 638 , 110 S.Ct. 1384 , 108 L.Ed.2d 585 (1990), represents the opposite pole from Chevron. There the Court unanimously refused to defer to the Department of Labor on the question of whether exclusivity provisions in state workers’ compensation law “reverse pre-empted” a federal private right of action created by § 1854 of the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801-72 . Despite the Secretary’s power to administer the act generally, including her power to set safety standards, 29 U.S.C. § 1841 (b)(2) (and the concomitant judicial deference to those judgments, see 494 U.S. at -, 110 S.Ct. at 1391 ), and her general rulemaking authority under § 1861 (which she had exercised on the controlling issue), the Court refused to defer to the Secretary’s views on the scope of § 1854: “Congress has expressly established the Judiciary and not the Department of Labor as the adjudicator of private rights of action arising under the statute.” Adams Fruit, 494 U.S. at -, 110 S.Ct. at 1390 . The agency could not “bootstrap” its § 1841 authority over standards into an area in which it had “no jurisdiction”. Id. 494 U.S. at -, 110 S.Ct. at 1391 .

This case is not quite so strongly against deference as Adams Fruit. There Congress had not charged the Secretary of Agriculture with any administrative task that called on her to interpret § 1854, so her construction was quite gratuitous. Here, as a result of the President’s delegation, the EPA had to construe § 106(b)(2) as a predicate to its own action. Cf. Maj. Op. at 923. But government agencies often construe a statute as a prelude to litigation. Prosecutors must interpret criminal statutes in order to bring indictments and faithfully enforce the law, yet no court defers to their view of the statute. A more “specific responsibility for administering the law” is needed to trigger Chevron. Crandon v. United States, 494 U.S. 152 , 110 S.Ct. 997, 1011 , 108 L.Ed.2d 132 (1990) (Scalia, J., concurring in the judgment); see also United States v. Western Electric Co., 900 F.2d 283, 297 (D.C.Cir.1990) (no deference to decisions reached in agency’s “prosecutorial role”).

Indeed, the courts appear generally to have accorded EPA no deference even in its interpretations of the liability provisions of CERCLA § 107, interpretations that EPA must make in deciding whether to sue to compel compliance or recover cleanup costs from responsible parties. See, e.g., United States v. Kayser-Roth Corp., 910 F.2d 24, 26-27 (1st Cir.1990) (meaning of “owner or operator” in CERCLA § 107(a)); United States v. Fleet Factors Corp., 901 F.2d 1550, 1554-60 (11th Cir.1990) (same, including scope of secured creditor exemption); United States v. Monsanto Co., 858 F.2d 160, 168-70 (4th Cir.1988) (meaning of affirmative defense under § 107(b)(3) and waste generator’s responsibility under § 107(a)(3)); United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 743-44 (8th Cir.1986) (individual liability under § 107(a)(3)). As the EPA simply acts as prosecutor in such cases, the courts accord its judgment no more deference than they would a United States Attorney’s decision to seek an indictment. Similarly, in deciding whether persons who refuse to comply with an abatement order have a good faith defense against EPA enforcement of fines and penalties, courts have resolved the issue independently. See Wagner Seed Co. v. Daggett, 800 F.2d 310, 316 (2d Cir.1986) (interpreting CERCLA § 107(c)(3)); Wagner Electric Corp. v. Thomas, 612 F.Supp. 736, 744-45 (D.Kan.1985) (interpreting CERCLA § 106(b)). Decisions on each of these issues necessarily involve trade-offs between competing policy values, so the courts’ independent resolution of them reflects a sense that that characteristic, even coupled with an agency’s role as prosecutor, is not enough to make Chevron applicable. Compare Maj. Op. at 923.

The above decisions address the various substantive issues without deference to EPA, but, like Bethlehem Steel Corp. v. Bush, 918 F.2d 1323 (7th Cir.1990), which defers on the “receives and complies” is *927 sue, they do so without analysis of the deference issue itself. One circuit court opinion, however, expressly considers the problem, refusing to defer to EPA’s position on the scope of the injunctive relief authorized by the first sentence of CERC-LA § 106(a). United States v. Ottati & Goss, Inc., 900 F.2d 429, 434-36 (1st Cir.1990). Rather than loosely aggregating CERCLA’s many provisions and dubbing EPA its “administrator”, Judge Breyer used a methodology similar to that of Adams Fruit, which had issued just two weeks earlier. He carefully distinguished between EPA orders under the second sentence of § 106(a), 1 for which the statute provides judicial review, and EPA injunction suits under the first sentence of § 106(a), as to which Congress used no terms suggestive of judicial review. Id. at 434-35. Even though EPA necessarily made an initial decision on what injunctive relief to seek, the court was to craft the injunction de novo. Here, as in Ottati & Goss, we do not review an EPA order but simply entertain a suit between EPA and a private firm. 2

Here, of course, the government is the defendant not the prosecutor, but that should make no difference. The Federal Tort Claims Act, like § 106(b)(2), requires a potential plaintiff first to submit its claim to the government and to sue within a specified time after the government has disposed of the claim. See 28 U.S.C. § 2401 (b) (requiring claim first to be “presented in writing to the appropriate Federal agency within two years after such claim accrues”); see also id. at § 2675; Schuler v. United States, 628 F.2d 199, 201-02 (D.C.Cir.1980) (en banc) (discussing procedure and clarifying ambiguities in statutory text). Not surprisingly, no court has ever invoked Chevron or deferred to an agency’s views when interpreting 28 U.S.C. § 2401 , although there has been no shortage of interpretive issues. See Gould v. Department of Health & Human Services, 884 F.2d 785, 787-88 (4th Cir.1989) (rejecting government’s position on when action accrues); Rosales v. United States, 824 F.2d 799, 804-05 (9th Cir.1987) (same); Nicolazzo v. United States, 786 F.2d 454 (1st Cir.1986) (same); Cogburn v. United States, 717 F.Supp. 958, 960-63 (D.Mass.1989) (holds limitations period subject to equitable tolling). As the statutory text provides no clear answers to these questions, and choosing an answer requires a balancing of competing policy interests, the solutions would be within the agency’s domain if Chevron applied.

CERCLA and the FTCA are also similar in that neither statute singles out any particular agency for its administration. Section 106(b)(2) calls for submission of petitions to the President; he has delegated that role to the EPA, Exec.Order No. 12,-580, § 4(d)(1), 52 Fed.Reg. 2923, 2926 (1987), but has delegated other CERCLA functions to a wide range of agencies, including the Public Health Service, the Federal Emergency Management Agency, the Departments of Defense, Energy and *928 Transportation, and the Coast Guard. 3 The FTCA requires every claim to be presented to the “appropriate” federal agency, see 28 U.S.C. §§ 2401 (b), 2675(a), and the Department of Justice has interpreted that as the “agency whose activities gave rise to the claim,” 28 CFR § 14.2 (b)(1). See Administrative Claims Under the Federal Tort Claims Act, 45 Fed.Reg. 2650 (1980). While the current dispensation thus gives many agencies a hand in administering the FTCA, the authority apparently could be concentrated in, say, the Department of Justice, as indeed much now is. See 28 CFR §§ 14.6 , 14.7. Such a consolidation could hardly form a basis for inferring congressional intent to delegate Chevron-type interpretive power to the Department. Compare Massachusetts v. Morash, 490 U.S. 107 , 116-17 & n. 11, 109 S.Ct. 1668 , 1673-74 n. 11, 104 L.Ed.2d 98 (1989) (resting deference to Secretary of Labor on specific congressional delegation of rule-making authority to “define accounting, technical, and trade terms”). In any event, the President has not consolidated his CERCLA functions but rather has dispersed them among many agencies.

Here there is no basis for finding a delegation of relevant portions of the statute to the EPA. One might try to do so at a highly aggregate level, as the EPA received the lion’s share of the President’s CERCLA duties. But that route is barred by Adams Fruit; while recognizing that the Department of Agriculture was in primary charge of the Migrant and Seasonal Agricultural Worker Protection Act, the Supreme Court focused instead — and understandably — on its lack of any role as to the private right of action. If we look at the particular remedy, as Adams Fruit instructs us, we find the courts in charge; the EPA functions simply as the defendant’s agent for purposes of advance settlement of suits. As in the case of criminal indictments and FTCA claims resolution, such prelitigation involvement is not enough.

On the merits, I agree with the majority that the presumption against retroactivity, and Representative Eckart’s statements on the floor, do not support the EPA. Maj. Op. at 924-925. I also agree that, to the extent that Congress enacted § 106(b) in order to provide incentives for potentially responsible parties to undertake a response action, neither the EPA’s nor Wagner’s reading provides a perfect fit, Wagner’s being overinclusive, EPA’s underinclusive. Maj. Op. at 922.

The text of § 106(b)(2)(A), however, strongly favors Wagner’s reading. It grants the right to petition the President (and thus the right to sue under § 106(b)(2)(B)) to “[a]ny person who receives and complies with” a § 106(a) order as long as the petition is filed “within 60 days after the completion of the required action.” 42 U.S.C. § 9606 (b)(2)(A). EPA would read this as if Congress were speaking on the day the statute was enacted, October 17, 1986, and were referring to “[a]ny person who [after this date] receives and complies with” a § 106(a) order.

I see no persuasive basis for finding such an extra condition in the statute. The section makes perfect sense if read without reference to the date of enactment. While the class of persons who “receive[] and compl[y] with” an order includes all who have ever done so, the requirement that they petition “within 60 days after completion of the required action” serves as a statute of limitations (and a short one at that); it also assures that there will be no application of the statute to remedial actions completed much before enactment. 4 *929 The section contains no reference to the date of enactment, directly or even by a “henceforth” or “in the future”, while other provisions of the same act make the date of enactment determinative by explicitly incorporating it into the text. See, e.g., 42 U.S.C. § 9605 (b), (g)(1)(A), (g)(3), added by Superfund Amendments and Reauthorization Act of 1986 (“SARA”), Pub.L. No. 99-499, § 105 (b), (g), 100 Stat. 1613 , 1625, 1627.

To overcome this language, EPA advances (besides the arguments that I join the majority in rejecting) the canon that statutes waiving the sovereign immunity of the United States should be construed strictly. Library of Congress v. Shaw, 478 U.S. 310, 318 , 106 S.Ct. 2957, 2963 , 92 L.Ed.2d 250 (1986); Block v. North Dakota ex rel. Board of University and School Lands, 461 U.S. 273, 287-88 , 103 S.Ct. 1811, 1819-20 , 75 L.Ed.2d 840 (1983). While the canon does not sweep all before it, see Bowen v. City of New York, 476 U.S. 467, 479 , 106 S.Ct. 2022, 2029 , 90 L.Ed.2d 462 (1986) (a court must be careful not “ ‘to narrow the waiver that Congress intended’ ”) (quoting United States v. Kubrick, 444 U.S. 111, 118 , 100 S.Ct. 352, 357 , 62 L.Ed.2d 259 (1979) (FTCA case)), it is in any event inapplicable.

Section 106(b)(2) merely added a second procedural avenue for reimbursement from Superfund. Congress had already waived sovereign immunity in 1980 by making the fund substantively liable. Section 111(a)(2) allows Superfund to be used for:

payment of any claim for necessary response costs incurred by any other person [other than a governmental entity] as a result of carrying out the national contingency plan ... Provided, however, That such costs must first be approved under said plan and certified by the responsible Federal official;

42 U.S.C. § 9611 (a)(2) (originally enacted as CERCLA § 111(a)(2), 94 Stat. 2789 ). Then as now, it provided that parties would be eligible for reimbursement if they were not “liable” as defined in § 107, 42 U.S.C. § 9607 . 5 Until the 1986 enactment of SARA, the sole procedure for making claims against Superfund was found in § 112. See CERCLA § 112, 94 Stat. 2792 -95, codified as amended by SARA, §§ 109(a)(3), 112, 100 Stat. 1633 , 1646-47, 42 U.S.C. § 9612 (detailing claims procedure). Section 106(b)(2) simply added an alternative procedural route for a special class of potentially responsible parties, those who had been issued § 106(a) orders. See S.Rep. No. 11, 99th Cong., 1st Sess. 58 (1985) (§ 106(b)(2) “establishes new procedures for reimbursement of certain response costs and provides opportunities for judicial review of administrative orders once the response action ... is completed”) (emphasis added); H.R.Rep. No. 253, 99th Cong., 1st Sess. 83 (1985). For this group, the new procedure dispenses with § 112(a)’s requirement that claims be first presented to the owner/operator of the facility and with § 112(b)’s requirement of an administrative hearing process; and instead of § 112’s model of arbitration followed by judicial review under the arbitrary and capricious standard, § 112(b)(5), it provides for a civil action in which the petitioner must show the court its nonliability by a “preponderance of the evidence”. 42 U.S.C. § 9606 (b)(2)(C).

*930 EPA argues that § 106(b)(2) extends the substantive liability of Superfund because it allows recovery of response costs even if they were not “approved under [the national contingency plan] and certified by the responsible Federal official,” as required by § 111(a)(2). See Brief for Appellee at 13 n. 7, and at 24. EPA has read § lll(a)(2)’s requirement of federal approval as requiring advance authorization. See 40 CFR § 300.25 (d).

But this is no real distinction. Only recipients of a § 106(a) order are eligible under § 106(b)(2). To say that § 106(b)(2) broadens Superfund’s substantive liability, then, is to say that a government order to do something is not an authorization to do it. EPA offers no explanation of how an order would not encompass authorization, and I can perceive none. 6

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As EPA does not administer § 106(b), I would not apply Chevron deference to its view that § 106(b)(2)(A) contains a timing requirement in addition to the one that section adopts explicitly. Construing the provision independently, I would not adopt any such view myself. Accordingly I would reverse the judgment below.

. Section 106(a) provides in pertinent part: when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance for a facility, he may [through the Attorney General] secure such relief as may be necessary to abate such danger or threat, and the district court ... shall have jurisdiction to grant such relief as the public interest and the equities of the case may require. The President may also, after notice to the affected Slate, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and welfare and the environment.

42 U.S.C. § 9606 (a).

. The court in Ottati & Goss had no occasion to consider the interpretation of statutory terms relevant both to the validity of an order under the first sentence and an injunction suit under the second. Similarly, as the present issue can arise only in private suits for reimbursement, we need not consider what deference might be applicable on a legal issue that could arise either in a § 106(b)(2) suit or in judicial review of some administrative action. Section 106(b)(2)(D) specifies the arbitrary and capricious standard on one such dual-track issue (challenges to the agency's "decision in selecting the response action ordered”), but there may be others.

. See, e.g., Exec.Order § 2(a) (delegating President's authority under CERCLA § 104(b)(1) and 104(i) to Public Health Service); id. § 2(c) (delegating President's authority under CERCLA §§ 104(a), 126(b), 117 and 119 to Federal Emergency Management Agency); id. § 2(d) (delegating President’s authority under CERCLA §§ 104(a), (b), (c)(4), 113(k), 117(a), (c), 119 and 121 to Departments of Defense and Energy); id § 5(a) (delegating President's authority under CERCLA § 107(c)(1)(C) to Department of Transportation); id. § 7(b)(2) (delegating President's authority under CERCLA § 109 to Coast Guard).

. CERCLA as a whole manifests no reluctance to impose retroactive burdens on private parties. Courts have read its liability provisions to apply retroactively to pre-enactment disposal activi *929 ties, see, e.g., United States v. Monsanto Co., 858 F.2d at 174 & n. 31; United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d at 732-34 ; United States v. Hooker Chemicals & Plastics Corp., 680 F.Supp. 546, 556-57 (W.D.N.Y.1988); United States v. Shell Oil Co., 605 F.Supp. 1064, 1072-79 (D.Colo.1985), as they have the SARA amendments to those provisions, see, e.g., United States v. R. W. Meyer, Inc., 889 F.2d 1497, 1505-06 (6th Cir.1989); cf. United States v. Rohm & Haas Co., 669 F.Supp. 672, 676-77 (D.N.J.1987) (SARA § 1130) judicial review provisions apply retroactively).

. Section 106(b)(2)(D) allows even liable parties to recover their response costs to the extent caused by arbitrary or capricious selection of response action by the President. But this does not appear to extend substantive liability, as under § 107(a)(4)(B) a responsible party is liable only for cleanup costs “consistent with the national contingency plan” (or costs “not inconsistent” with the plan for government response action, see § 107(a)(4)(A)), and a capriciously ordered response action would not be consistent with that plan. See § 105(a)(7) (remedial measures under the NCP should be "cost-effective”). The government does not claim that this aspect changes substantive liability.

. This view is in no way inconsistent with this court’s ruling in Ohio v. EPA, 838 F.2d 1325 (D.C.Cir.1988), where the court upheld EPA's decision to limit the class of cases for which it would grant authorization. We did not address whether an order compelling a party to take response action constitutes authorization.