Opposition Brief — Wagner Seed Co. v. Bush

Supreme Court, U.S

FILED

No. 91-1140” | MAR 16 1999

GF THE CLErk

Iu the Supreme Court of the Auit

OCTOBER TERM, 1991

WAGNER SEED COMPANY, INC., PETITIONER

GEORGE H.W. BUSH, PRESIDENT OF

THs UNITED STATES, ET AL.

ON PETIIUON FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

ALBERT M. FERLO, JR.

J. CAROL WILLIAMS

Attorneys

Department of Justice

Washington, D.C. 205380

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals properly accorded

Chevron deference to the Environmental Protection

Agency’s interpretation of the reimbursement pro-

vision of the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), 42

U.S.C. 9606(b) (2).

(1)

TABLE OF CONTENTS

Page

I ae Se os easiicavictiseoama 1

I ces oA LE ee ee 1

| ee SAN EMD At ceo Oe RR EET ee 2

Argument ........... cael 7

a Sida iaalic mlccaga vane vaniamidaaabiedeaet 16

TABLE OF AUTHORITIES

Cases:

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) ..9, 10, 11

Arkansas Vv. Oklahoma, No. 90-1262 (Feb. 26,

on de cuassienialsaatune 7,11

Berkemer Vv. McCarty, 468 U. S. 420 (1984) ........... 3

Bethlehem Steel Corp. v. Bush, 918 F.2d 1232 (7th

I cr ve 5, 7-8

Bowen V. Georgetown University Hosp.. 488 USS.

RE sR a ce RYE MATA SAA! 12

Buckley v. Valeo, 424 U.S. 1 (1976) .........2.200000020.... 14

Chevron U.S.A. Inc. Vv. Natural Resources De-

fense Council, Inc., 467 U.S. 837 (1984) _......... 5,7

Crowell v. Benson, 285 U.S. 22 (1982) ...........0.00.000..... 14

EEOC y. Arabian American Oil Co., 111 S. Ct.

Neen heedascomaniaicide 9,11

Environmental Defense Fund, Inc. v. City of Chi-

cago, 948 F.2d 345 (7th Cir. 1991) .....000002. ee. 8

Gary Steel Supply Co. v. Reagan, 711 F. Supp. 47]

SM __) RRS Aenea 5, 7

General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) 11, 12

McLaren V. Fleischer, 256 U.S. 477 (1921) ........ 13

Morrissey V. Brewer, 408 U.S. 471 (1972) ............. 15

North v. Russell, 427 U.S. 328 (1976) ............ . 15

Northern Pipeline Constr. Co. v. Marathon Pipe

ane Ce., 466 Uo. 60 (1062) ..........................-...... 14

Office of Rereounel Management V. Richmond. 110

S. Ct. 2465 (1990) , ; 10

Power Reactor Dev. Co. Vv. International Union of

Elec. Workers, 367 U.S. 396 (1961) ............ . 8

Udall v. Tallman, 380 U.S. 1 (1965) ...........000000... 13

(111)

IV

Cases—Continued: Page

United States Vv. Fleet Factors Corp., 901 F.2d 1550

(11th Cir. 1990), cert. denied, 111 S. Ct. 752

FRI IEAEAIS ER. Gta SR AeA LPR ee ANC Ree Ee Sea 8

United States v. Kayser-Roth Corp., 910 F.2d 24

(1st Cir. 1990), cert. denied, 111 8S. Ct. 957

ee eal leeheepeaes 8

United States v. Monsanto, 858 F.2d 160 (4th Cir.

1988), cert. denied, 490 U.S. 1106 (1989) _....... 8

United States v. Northeastern Pharmaceutical &

Chemical Co., 810 F.2d 726 (8th Cir. 1986), cert.

denied, 484 U.S. 848 (1987) -..........000..0000022. ee. 8

United States vy. Ottati & Goss, Inc., 900 F.2d 429

TU tN 8

United States v. R.W. Meyer, Inc., 889 F.2d 1497

(6th Cir. 1989), cert. denied, 494 U.S. 1057

ED wasnncescccavchnce- kesh undessisissuuaaandansiaameaaametaeaecnaaae 2

Wagner Seed Co. Vv. Daggett, 800 F.2d 310 (2d Cir.

I ae ee eee 4

Ward vy. Village of Monroeville, 409 U.S. 57

RAR AIR eRe 8 Tir Ae LLL Sit inn ASN NR Oe 15

Constitution, statutes and rule:

U.S. Const. :

fT: ED Et Be SERRE RE ED NG =o, ena 14

MRI ee ee a 14

Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1980, 42 U.S.C. 9601

et seq.:

A rec I eon ncak cacecnencs aseeeevanasekeeoes

gfe Ch Le 2 arn res een he ee

Re i I gost rer oss ane eee

42 U.S.C. 9606 (a) _........... ts Mees 3, 4,

Wee Rs UD ooo cs ecccce nc es

RE SMS | RRC ee A Nai

eins TI secs cc cerns dasn cava ;

Hazardous Substance Response Trust reik, :

U.S.C. 9507 et seq.:

26 U.S.C. 9507 (a) PEE OO Pe

26 U.S.C. S607 (b) .......00.2....--:-. .

AY)

or

tw

—

— Pr DO OO lO & DO

bho

bo

V

Statutes and rule—Continued : Page

Superfund Amendments and Reauthorization Act

of 1986:

42 U.S.C. 9606 (§ 106) . 14

GE A. BRE oveccnciecccceetes . 12

42 U.S.C. 9606 (b) (2) 3

42 U.S.C. 9606 (b) (2) (A) 3, 4, 5, 6, 7, 10, 12

42 U.S.C. 9606 (b) (2) (B) 3, 8, 10

42 U.S.C.

42 U.S.C.

40 C.F.R. 300.

Miscellaneous:

9606 (b) (2) (C) eee» 9, 10, 15

9606 (b) (2) (D). 3, 15

Exec. Order No. 12,580, 3 C.F.R. 193 (1988) 2

700 (e) 13

13

53 Fed. Reg. 51,514 (1988)

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-1140

WAGNER SEED COMPANY, INC., PETITIONER

vU.

GEORGE H.W. BUSH, PRESIDENT OF

THE UNITED STATES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

“OR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals, Pet. App. Al-

A63, is reported at 946 F.2d 918. The district court’s

opinion, Pet. App. A64-A83, is reported at 709 F.

Supp. 249.

JURISDICTION

The judgment of the court of appeals was entered

on October 15, 1991. The petition for a writ of cer-

tiorari was filed on January 13, 1992. The jurisdic-

tion of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

STATEMENT

In 1985, petitioner’s animal feed and agricultural

supply warehouse burned down, spreading hazardous

substances from pesticides ard other agricultural

chemicals into the surrounding residential commu-

nity. See C.A. App. A&9-A93.' This case concerns

who should pay the cost of removing those substances.

1. Congress enacted the Comprehensive Environ-

mental Response, Compensation, and Liability Act of

i980 (CERCLA), 42 U.S.C. 9601-9675, because of

widespread concern over the severe environmental

and public health effects of improper hazardous waste

and contaminant disposal. See generally United

States v. R.W. Meyer, Inc., 889 F.2d 1497, 1500 (6th

Cir. 1989), cert. denied, 494 U.S. 1057 (1990). Un-

der CERCLA, EPA has two principal methods for

addressing contaminated sites... Under Section 104,

EPA may undertake response actions itself. 42

U.S.C. 9604. In such cases, EPA can recover its re-

sponse costs from responsible parties pursuant to Sec-

tion 107(a). 42 U.S.C. 9607(a).* Recovered costs

are used to replenish the Hazardous Substance Re-

sponse Trust Fund (Superfund), 26 U.S.C. 9507(b),

which Congress established to pay for federal re-

sponse actions. 26 U.S.C. 9507(a).

1“C_A. App.” refers to the Appendix filed in the court of

appeals.

? Pursuant to 42 U.S.C. 9615, the President has delegated

clean-up response authority under CERCLA (with certain

exceptions not relevant here) to EPA. Exec. Order No. 12,580,

3 C.F.R. 193 (1988), reprinted in 42 U.S.C. 9615.

* Responsible parties include certain present and past site

owners and operators and specified categories of generators

and transporters of hazardous substances. 42 U.S.C. 9607 (a).

3

In the alternative, EPA may proceed under Sec-

tion 106(a) by requiring persons (including respon-

sible parties) to undertake response actions them-

selves. 42 U.S.C. 9606(a). As of 1985, entities un-

dertaking such actions could not recover their costs

from the government; CERCLA did not provide for

reimbursement. But the Superfund Amendments and

Reauthorization Act of 1986 (SARA) changed that.

It added Section 106(b) (2), which states, in relevant

part:

Any person who receives and complies with the

terms of any order issued under [42 U.S.C.

9606(a)] may, within 60 days after completion

of the required action, petition the President for

reimbursement from the Fund for the reasonable

costs of such action, plus interest.

SARA §$ 106(b)(2)(A), 42 U.S.C. 9606(b) (2) (A).

To recover, the applicant must establish (by a pre-

ponderance of the evidence) that it is not liable for

response costs and that the costs it seeks to recover

are reasonable. SARA § 106(b)(2)(C), 42 U.S.C.

9606(b)(2)(C).' Disappointed reimbursement ap-

plicants may seek judicial review by filing an action

against the President. SARA § 106{b)(2)(B), 42

U.S.C. 9606 (b) (2) (B).

2. Petitioner is an agricultural supply business

which stored-various agricultural products, including

pesticides and other agricultural chemicals, at its

warehouse in a residential neighborhood in Farming-

dale, New York. On June 1, 1985, a fire at the ware-

house released various contaminants into the environ-

*The party may also be entitled to reimbursement if it

shows, on the administrative record, that the clean-up actions

ordered were arbitrary, capricious, or otherwise illegal. 42

U.S.C. 9606(b) (2) (D).

4

ment. C.A. App. A381. EPA’s Regional Adminis-

trator determined that the release may have immi-

nently and substantially endangered public health,

welfare and the environment. C.A. App. A92-A93.

Accordingly, he issued a Section 106(a) order on De-

cember 31, 1985, directing petitioner to conduct

various clean-up activities. C.A. App. A88-A106.°

Petitioner filed suit to enjoin EPA from ordering

the clean-up, arguing that orders made pursuant to

42 U.S.C. 9606(a) were unconstitutional. Wagner

C.A. Br. 4. The district court denied petitioner’s mo-

tion for a preliminary injunction and the decision

was affirmed on appeal. Wagner Seed Co. v. Daggett,

800 F.2d 310 (2d Cir. 1986).

3. After petitioner had incurred approximately

98% of its ultimate clean-up costs, Congress enacted

SARA. Pet. App. A5. Petitioner applied for reim-

bursement under SARA Section 106(b) (2) (A). Pe-

titioner claimed that the disaster was caused by light-

ning and that it was therefore not liable and was en-

titled to reimbursement of its costs under CERCLA.*

EPA denied the petition, explaining that Section 106

5 Specitically, petitioner was required to: (1) immediately

remove contaminated soil from the site and an adjoining site

owned by the Long Island Railroad, C.A. App. A93-A94; (2)

develop a work plan, implementation schedule, and “Site

Operations Plan” for the investigation and remediation of

contamination at the site, id. at A94-A97; and (3) implement

those plans, as modified and approved by EPA, id. at A98.

® CERCLA provides three limited defenses to liability: acts

of God, acts of war, and acts or omissions of a contractually

unrelated third party, if the defendant exercised due care and

took appropriate precautions. 42 U.S.C. 9607(b). CERCLA

limits the act of God defense to instances in which the effects

of a natural disaster or phenomenon “could not have been

prevented or avoided by the exercise of due care or fore-

sight.”” 42 U.S.C. 9601(1).

5

(b)(2)(A) applies only to entities that both “re-

ceive[d] and complie[d] with” an administrative or-

der after SARA’s effective date. C.A. App. A72-A76.

Because petitioner received its order before SARA’s

effective date, it did not qualify under SARA’s reim-

bursement provision. C.A. App. A74.'

4. Petitioner then filed a complaint in district

court, arguing that EPA’s decision to deny reim-

bursement of its clean-up costs under Section 106

(b)(2)(A) should be overturned. C.A. App. A35-

A36. The government moved to dismiss, C.A. App.

A39, and the district court granted the motion. It

held that the statute was ambiguous as to whether

Section 106(b) (2) (A) applies to entities, such as pe-

titioner, who received their orders and began their

clean-up work before SARA’s enactment but com-

pleted it after enactment. The court therefore turned

to the tenets of statutory construction. Pet. App.

A70-A77. Those, it concluded, favored EPA’s inter-

pretation. Pet. App. A71, A82-A83.

The district court also held that EPA’s construc-

tion of Section 106(b)(2)(A) is entitled to defer-

ence under Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-845 (1984),

and therefore must be respected if reasonable. The

court held that it was. EPA’s interpretation, the

court explained:

simply placed those who were in the process of

cleaning up in the same boat as those who com-

pleted cleanup before § 106(b) (2) was enacted.

7 EPA had taken this same position earlier with respect to

the reimbursement petition involved in Bethlehem Steel Corp.

v. Bush, 918 F.2d 1323 (7th Cir. 1990), and has consistently

adhered to it. See Pet. App. A17; e.g., Gary Steel Supply Co.

v. Reagan, 711 F. Supp. 471, 473-474 (N.D. Ill. 1989).

)

The EPA’s decision to make the cut-off where it

did—not allowing reimbursement to companies

who were already cleaning up when § 106(b) (2)

was enacted—was a reasonable interpretation of

the statute.

Pet. App. A82. Accordingly, it held that Section

106(b) (2) (A) did not authorize recovery. Pet. App.

A82-A83.

5. The court of appeals affirmed. It considered

petitioner’s numerous arguments as to why Chevron

deference was inappropriate and rejected each. Pet.

App. A10-A28. It held that EPA is charged in the

first instance with interpreting the language of Sec-

tion 106(b)(2)(A), Pet. App. A26-A27, and that

the language of the statute is ambiguous as to

whether Congress intended it to apply to one who re-

ceives an order prior to SARA’s enactment but com-

pletes clean-up after enactment, Pet. App. A29-A36.

Accordingly, it deferred to EPA’s permissible inter-

pretation of the statute. Pet. App. A36. Judge Wil-

liams dissented, Pet. App. A37-A63, on the ground

that EPA was not accorded administrative authority

over Section 106(b)(2)(A), but rather authority to

pay claims to avert lawsuits; consequently, Judge

Williams concluded that EPA’s interpretation of Sec-

tion 106(b) (2) (A) was not entitled to deference.

7

ARGUMENT

The petition presents one, narrow question:

whether EPA’s interpretation of SARA Section 106

(b) (2) (A), 42 U.S.C. 9606(b) (2) (A), is entitled

to deference under this Court’s holding in Chevron,

467 U.S. at 842-845. That question, which is an-

swered by reference to settled principles of adminis-

trative law, has been answered twice in the courts of

appeals, both times in the affirmative. Because the

decision below does not conflict with the decision of

any other court of appeals and is consistent with the

decisions of this Court, see, e.g., Arkansas y. Okla-

homa, No. 90-1262 (Feb. 26, 1992), slip op. 15,

18-19, further review is not warranted.

1. Petitioner concedes, Pet. 15 n.4, that the court

of appeals’ holding is consistent with the only other

court of appeals decision addressing this issue. In

Bethlehem Steel Corp. v. Bush, 918 F.2d 1323 (1990),

the Seventh Circuit considered whether SARA’s re-

imbursement provision, 42 U.S.C. 9606(b) (2) (A),

applied to entities that were already in the process of

cleaning up at the time SARA became effective.

Finding the statutory language ambiguous, the Sev-

enth Circuit turned to the issue of whether it was

appropriate to defer to EPA’s reasonable interpreta-

tion. Like the court of appeals below, the Seventh

Circuit held that it was. 918 F.2d at 1327-1328. See

also Gary Steel Supply v. Reagan, 711 F. Supp. 471,

474 (N.D. Ill. 1989) (deferring to EPA’s construc-

tion of Section 106(b)(2)(A)). The court rea-

soned that, because EPA both played a major role in

the legislative process and was the entity “charged

with the responsibility of setting [the statute’s] ma-

chinery in motion,” deference to its contemporaneous

construction was appropriate. Bethlehem Steel Corp.,

8

918 F.2d at 1328, quoting Power Reactor Dev. Co. v.

International Union of Elec. Workers, 367 U.S. 396,

408 (1961). Petitioner wholly fails to address this

reasoning.*

2. Petitioner nonetheless contends that deference is

inconsistent with the statute. Specifically, petitioner

argues that Chevron deference is improper where a

statute provides for “a plenary right of action” in

federal court. Pet. 16; accord Pet. 19 (court of ap-

peals “misapprehended a critical statutory provision

that obligated the cowrt to examine the matter de

novo’); see Pet. 19-22. Contrary to petitioner’s as-

sertions, however, nothing in 42 U.S.C. 9606

(b) (2)(B) prohibits courts of appeals from deferr-

ing to EPA’s reasonable interpretation of ambiguous

statutory language. Indeed, Subsection (b) (2)(B)

does not even address the level of deference to be ac-

corded EPA’s construction; it only authorizes dis-

appointed reimbursement petitioners to file suit.

8 Petitioner’s claim that the circuits are in conflict over the

different question of how much deference should be given to

EPA’s CERCLA liability interpretations, Pet. 37-38, is nei-

ther relevant nor supported by the cases petitioner cites.

The issue of deference was not addressed in United States v.

Kayser-Roth Corp., 910 F.2d 24 (1st Cir. 1990), cert. denied,

111 S. Ct. 957 (1991) ; United States v. Fleet Factors Corp.,

901 F.2d 1550 (11th Cir. 1990), cert. denied, 111 S. Ct. 752

(1991) ; United States v. Monsanto, 858 F.2d 160 (4th Cir.

1988), cert. denied, 490 U.S. 1106 (1989) ;-or United States

Vv. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726

(8th Cir. 1986), cert. denied, 484 U.S. 848 (1987). In United

States v. Ottati & Goss, Inc., 900 F.2d 429, 436 (1st Cir.

1990), the court merely held that it was not required to ac-

cept EPA’s view of the remedy selected; the court did not

address Chevron deference. In Environmental Defense Fund,

Inc. V. City of Chicago, 948 F.2d 345, 348 (7th Cir. 1991), the

court found that “EPA’s interpretation and the legislative

history of the statute do little to resolve th[e] stand-off.”

9

Nor does SARA Section 106(b) (2) (C), 42 U.S.C.

9606(b) (2)(C), upon which petitioner also appears

to rely, see Pet. 11 n.3, prohibit deference to EPA’s

reasonable interpretation. Section 106 (b) (2) (C)

merely states that the party seeking reimbursement

bears the burden of proving (1) that it is not liable

and (2) that its costs were reasonable:

[T]o obtain reimbursement, the petitioner shall

establish by a preponderance of the evidence that

it is not liable for response costs under [S]ection

9607(a) of this title and that costs for which it

seeks reimbursement are reasonable in light of

the action required by the relevant order.

SARA § 106(b)(2)(C), 42 U.S.C. 9606 (b) (2) (C).

Here, as the court of appeals held, Pet. App. A10-

A13, the issue was not whether petitioner was liable

or whether petitioner’s costs were reasonable.

Rather, the question was whether eligibility for reim-

bursement depended on petitioner’s having both “re-

ceive[d] and complie[d] with the” Section 106 (a)

order after SARA’s effective date. Section 106

(b) (2) (C) has nothing to say about that; and it cer-

tainly does not provide for a “plenary right of ac-

tion” on that question.

Unable to locate any statutory language that pro-

hibits courts from deferring to EPA’s interpreta-

tion of the statute, petitioner asserts that the de-

cision below is inconsistent with this Court’s decisions

in Adams Fruit Co. vy. Barrett, 494 U.S. 638, 649-650

(1990), and EEOC y. Arabian American Oil Co.

(ARAMCO), 111 S. Ct. 1227 (1991). Pet. 22-25,

30-34. Petitioner misreads both those decisions.

a. In Adams Fruit Co., this Court applied the

basic principle that, in the absence of “a congres-

sional delegation of administrative authority,” Chev-

10

ron deference is inappropriate. 494 U.S. at 649. The

statute there created a private right of action in fed-

eral court for certain injured workers. Under the

Department of Labor’s interpretation of one portion

of that statute, a State could preempt the federal pri-

vaie right of action by making workers’ compensation

an exclusive remedy. But the statute gave the De-

partment of Labor no role in administering the pri-

vate right of action provisions. Congress had con-

ferred on the courts the function of administering the

private right of action and determining its scope.

Accordingly, the Department of Labor’s interpreta-

tion of those provisions was not entitled to deference.

Id. at 649-650; see id. at 642-643.

Here, in contrast, EPA does have a role in admin-

istering the relevant provision: Parties seeking reim-

bursement must file a petition with EPA under Sec-

tion 106(b)(2)(A) before seeking redress in the

courts; no redress may be had unless and until EPA

denies the petition. 42 U.S.C. 9606(b)(2)(B) (ac-

tion may be filed only if the President refuses to

grant all or part of petition). As the court of ap-

peals held, the “interpretation of the ‘receives and

complies’ requirement of § 106(b)(2)(A) is the

agency's responsibility in the first instance.” Pet.

App. A26.”

Thus, unlike the Department of Labor’s interpre-

tation in Adams Fruit Co., EPA’s construction is not

* Judge Williams’s argument in dissent that this function

is not administration of the reimbursement provision but

rather a statutory opportunity “to pay the [applicant] off and

thus avert suit,” Pet. App. A39, is unsupported by the statute.

Under Section 106(b) (2) (C), applicants must make certain

showings to be reimbursed; nothing in Section 106(b) (2) (A)

authorizes EPA to “pay off” applicants to avoid a lawsuit if

those showings have not been made. Cf. Office of Personne!

Management V. Richmond, 110 S. Ct. 2465, 2471-2475 (1990).

11

an attempt to define “the scope of the judicial power

vested by the statute,’ Pet. App. A25-A26, quoting

494 U.S. at 650. Nowhere did EPA purport to deter-

mine the extent of judicial review, “the manner in

which-a person seeking reimbursement must ‘file an

action’ [in federal court], or which is ‘the appro-

priate United States district court’ ” in which to file. .

Pet. App. A27. Instead, EPA only construed that

portion of the statute assigned to it for administra-

tion. Because there was “‘a congressional delegation

of administrative authority” with respect to the re-

imbursement provision at issue here, the concerns ad-

dressed in Adams Fruit Co. are inapplicable; Chevron

deference was appropriate. Cf. Arkansas v. Okla-

homa, supra (requiring Chevron deference to EPA’s

interpretation of provisions relevant to its issuance

of a permit under the Clean Water Act).

b. The other case upon which petitioner relies,

ARAMCO, 111 8. Ct. at 1227, see Pet. 33-34, is sim-

ilarly inapposite. Relying on the factors enunciated

in General Elec. Co. v. Gilbert, 429 U.S. 125, 140-

146 (1976), a pre-Chevron decision addressing the

level of deference due to Equal Employment Oppor-

tunity Commission (EEOC) interpretations, the

Court in ARAMCO refused to defer to EEOC’s inter-

pretation of Title VII. While the continuing vitality

of some of Gilbert’s rationale is open to question, see

111 S. Ct. at 1236 (Scalia, J., concurring), it is clear

that Gilbert does not apply here. Gilbert held that

deference to EEOC interpretations was not always

required because Congress had not conferred “upon

the EEOC authority to promulgate rules or regula-

tions.” ARAMCO, 111 S. Ct. at 1235, quoting Gil-

bert, 429 U.S. at 141. Here, in contrast, EPA does

have the authority to promulgate rules and regula-

tions. 42 U.S.C. 9615. Hence, its interpretations of

12

the Act, even if rendered in the course of an adjudi-

cation rather than a rulemaking, are entitled to

deference. Indeed, in Arkansas v. Oklahoma, supra,

this Court recently required Chevron deference to an

interpretation EPA rendered in a permit adjudica-

tion under an analogous regulatory scheme. Accord-

ingly, Chevron, not Gilbert or ARAMCO, controls

this case.”°

3. Petitioner also errs in arguing, Pet. 27-30, that

EPA’s interpretation of Section 106(b)(2)(A) is

not entitled to deference under Chevron because it

was advanced for litigation purposes. See also Pet.

16, 34, 35. It is true that this Court noted in Bowen

v. Georgetown University Hosp., 488 U.S. 204

(1988), that it has “declined to give deference to an

agency’s counsel’s interpretation of a statute where

the agency itself has articulated no position on the

question.” 488 U.S. at 212 (emphasis added). But

the interpretation of Section 106(b) (2) (A) to which

the court of appeals deferred here was one on which

the agency had articulated a position. In fact, it was

EPA’s interpretation from the start. EPA so con-

strued the statute when acting upon petitions for re-

imbursement filed by petitioner and entities like it;

1 Even if Gilbert did govern this case, deference would

still be appropriate. Under Gilbert, the level of deference

depends on “the thoroughness evident in [the agency’s] con-

sideration, the validity of its reasoning [and] its consistency

with earlier and later pronouncements.” 111 S. Ct. at 1235,

quoting Gilbert, 429 U.S. at 141. Here, EPA carefully con-

sidered the statutory language, canons of statutory construc-

tion, and legislative history, concluding that each of them

favored prospective application of Section 106(b). See C.A.

App. A74-A76. Its reasoning is unquestionably valid; indeed,

every federal court that has addressed the issue has reached

the same result. And EPA has applied its interpretation

consistently. Pet. App. A17.

13

the interpretation was not an after-the-fact inven-

tion of litigation counsel.'' Indeed, the interpretation

now appears in the Code of Federal Regulations, 40

C.F.R. 300.700 (e).”

4. The balance of petitioner’s arguments could

have been raised below; but they were not. At most,

petitioner alluded to some by claiming that the dis-

trict court “abdicated its role to EPA, which acted

a[s] prosecutor, judge and jury in improperly inter-

preting this remedial statute in a narrow fashion, so

as to unjustifiably deny Wagner Seed’s claim for re-

imbursement of response costs.” Wagner C.A. Br.

11. This Court generally does not address issues

neither raised nor ruled on below. Berkemer vy.

McCarty, 468 U.S. 420, 443 (1984). In any event,

the arguments have no merit.

Petitioner claims that the court of appeals’ deci-

sion implicates separation of powers concerns be-

cause “Congress has specifically ordained plenary

adjudication by the courts,” Pet. 20, and that appli-

cation of Chevron deference in such circumstances

“is an unconstitutional abdication of the authority of

Article III courts,” Pet. 17-18. Petitioner also as-

serts that Chevron deference here violates due proc-

ess, largely for the same reasons. Pet. 34-36. See

also Pet. 17, 19. But this case presents no such con-

cerns. Long before Chevron, courts called upon to

review an agency’s construction of a statute that the

agency was charged with administering recognized

'' In petitioner’s case, the interpretation was spelled out in

a June 9, 1988, letter from the Assistant Administrator for

Solid Waste and Emergency Response, U.S. Environmental

Protection Agency, Washington, D.C. C.A. App. A72.

'’ This interpretation was first noticed as a proposed rule

in December 1988. See 53 Fed. Reg. 51,514 (1988).

14

the appropriateness of judicial deference to the agen-

cy’s interpretation. See, e.g., Udall v. Tallman, 380

U.S. 1, 16 (1965); McLaren vy. Fleischer, 256 U.S.

477, 480 (1921). As explained above, pp. 8-9, supra,

there is no reason to believe Congress wished courts

to refrain from applying that well-established doc-

trine when construing SARA Section 106; nor is

there any suggestion that Congress intended to cre-

ate a right to deference-free judicial interpretation of

statutes administered by EPA. But even if the issue

were arguable—and it is not—it would be a question

of statutory construction, not one of separation of

powers or due process.

Consequently, the separation of powers cases on

which petitioner relies are wholly inapposite. In

Northern Pipeline Constr. Co. v. Marathon Pipe Line

Co., 458 U.S. 50 (1982) (see Pet. 17 n.5, 18, 20),

this Court held that the Bankruptcy Reform Act of

1978 unconstitutionally conferred Article III judicial

power upon judges who did not enjoy the protections

afforded Article III judges. Here, the court of appeals

merely applied the principles articulated in Chevron

to a situation involving an ambiguous statute. North-

ern Pipeline does not speak to such a situation. In

Buckley vy. Valeo, 424 U.S. 1 (1976) (see Pet. 17

n.5), this Court considered, in part, whether the

powers given to the congressionally appointed Federal

Elections Commission in the 1974 Amendments to the

Federal Election Campaign Act of 1971 violated

Article IJ, § 2, Cl. 2 of the U.S. Constitution. The

only Article III issue was whether there was a case

or controversy; this Court held that there was. 424

U.S. at 11-12. And in Crowell v. Benson, 285 U.S.

22 (1932) (Pet. 21-22), this Court considered

“whether the Congress may substitute for constitu-

tional courts, in which the judicial power of the

—

15

United States is vested, an administrative agency

“ “ * for the final determination of the existence of

the facts upon which the enforcement of the constitu-

tional rights of the citizen depend[s].” 285 U.S. at

56. This case does not involve enforcement of consti-

tutional rights; it involves the agency’s interpretation

of petitioner’s statutory rights with respect to reim-

bursement.

Nor are petitioner’s due process cases relevant. See

Pet. 35-36. North v. Russell, 427 U.S. 328 (1976),

found no due process violation where an accused, sub-

ject to possible imprisonment, was tried before a non-

lawyer police court judge but was permitted a later

trial de novo available under a State’s two-tier court

system. 427 U.S. at 329. In Ward v. Village of

Monroeville, 409 U.S. 57 (1972), the Court held that

due process was violated where an individual was

required to stand trial before the mayor, who was

responsible for village finances and whose court pro-

vided a substantial portion of village funds through

fines, fees and costs. And, in Morrissey v. Brewer,

408 U.S. 471 (1972), the Court found that parole

revocation, without a hearing, violated due process.

None of these cases speaks to the situation in which

a court defers to an agency’s interpretation of a stat-

ute under Chevron."

13 We also note that the issue involved here is relevant only

to a limited and diminishing class of cases—those in which a

party received a clean-up order before SARA was enacted in

October 1986, more than five years ago, but has not yet

completed the clean-up work. While EPA estimates that there

are approximately 20 such outstanding orders, few of those

will result in applications for reimbursement, as applicants

must show that they were not liable for the clean-up under

CERCLA’s very limited defenses to liability, see p. 4 n.6,

supra, or that the clean-up actions ordered were arbitrary,

16

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

ALBERT M. FERLO, JR.

J. CAROL WILLIAMS

Attorneys

MARCH 1992

capricious, or otherwise illegal. 42 U.S.C. 9606(b) (2) (C)

and (D).

W OU. S. GOVERNMENT PRINTING OFFICE, 1992 312324 4536!