Bethlehem Steel Corp. v. Bush

• Decision Date: 28 November 1990
• Docket Number: No. 89-3411,89-3411
• Citation: 918 F.2d 1323
• Parties: , 21 Envtl. L. Rep. 20,503 BETHLEHEM STEEL CORPORATION, Plaintiff-Appellant, v. George BUSH, in his capacity as President of the United States of America; William K. Reilly, in his capacity as Administrator of the United States Environmental Protection Agency; and the United States Environmental Protection Agency, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1323

918 F.2d 1323

32 ERC 1345, 21 Envtl. L. Rep. 20,503

BETHLEHEM STEEL CORPORATION, Plaintiff-Appellant, v. George BUSH, in his capacity as President of the United

States of America; William K. Reilly, in his capacity as

Administrator of the United States Environmental Protection

Agency; and the United States Environmental Protection

Agency, Defendants-Appellees.

No. 89-3411.

United States Court of Appeals, Seventh Circuit.

Argued May 18, 1990.

Decided Nov. 28, 1990.

Bryan G. Tabler, Barbara A. Fruehling, Mark E. Shere, Joan M. Heinz, Barnes & Thornburg, Indianapolis, Ind., for plaintiff-appellant.

Roger J. Marzulla, Asst. Atty. Gen., David C. Shilton and William B. Lazarus, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., Mary L. Fulghum, E.P.A., Region 5, Office of Regional Counsel, Chicago, Ill., Joseph Freedman, E.P.A., Washington, D.C., Robert Lefevre, Dept. of Justice, Environmental Defense Section, Washington, D.C., for defendants-appellees.

Before COFFEY, RIPPLE, and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

Bethlehem Steel Corporation brought this action to recover money it expended as part of a Superfund cleanup. The district court granted the government's motion to dismiss with prejudice. 736 F.Supp. 945. Bethlehem appealed. We now affirm the judgment of the district court.

I BACKGROUND

A. The Administrative Structure

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) was enacted in response to the growing hazardous waste problem in this country and to the recognition that the previous statute, the Resource Conservation and Recovery Act of 1976 (RCRA), was not adequate to deal with that problem. CERCLA gave the Environmental Protection Agency (EPA) the power either to take direct response action to clean up a site and later seek reimbursement from the polluters, or to require the "responsible parties" to conduct a cleanup. 42 U.S.C. Sec. 9604(a). To fund the direct response actions, Congress established in the United States Treasury a Hazardous Substance Trust Fund (commonly referred to as "Superfund"). 26 U.S.C. Sec. 9507(a).

Under CERCLA, if a party conducted a cleanup despite disclaiming liability, there was no action available to recover the expended funds from the Superfund if its nonliability was established later. In part to encourage potentially responsible parties to conduct a cleanup expeditiously and postpone litigation about responsibility to a later time, Congress amended CERCLA in 1985. The amendment, called the Superfund Amendment and Reauthorization Act (SARA), became effective on October 17, 1986. One of its provisions gives to any party that "receives and complies" with a cleanup order the right to petition for reimbursement. The full text of the pertinent subsection reads as follows:

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 Fund for the reasonable costs of such action, plus interest.

42 U.S.C. Sec. 9606(b)(2)(A).

B. Facts

As part of Bethlehem Steel Corporation's (Bethlehem) operation in Burns Harbor, Indiana, it produces a liquid waste by-product called "spent pickle liquor." Prior to September 1985, Bethlehem sold the spent pickle liquor to Conservation Chemical Company of Illinois, Inc. (CCCI), which would pick up the liquid at Bethlehem's facility and transport it to CCCI's facility in Gary, Indiana.

The EPA conducted an investigation of CCCI's facility and determined that toxic The group submitted a proposed cleanup plan to the EPA in March 1987, and the EPA approved the plan on April 30, 1987. The cleanup work began on June 8, 1987, and was completed on February 24, 1988. Two weeks following the cleanup, Bethlehem requested reimbursement of its cleanup costs (about $300,000) pursuant to section 9606. The EPA denied the request on May 10, 1988, on the ground that reimbursement would be a retroactive application of SARA.

                materials had leaked out of various containers.  On September 27, 1985, the EPA issued an administrative order to clean up CCCI's Gary facility and named Bethlehem, CCCI, and seventeen other companies as potentially responsible parties.  Bethlehem and thirteen of the other companies formed a group to clean up the facility.  In a letter to the EPA dated October 17, 1985, the group denied liability, but indicated that it would comply with a revised administrative order. 1   On November 25, 1985, the EPA issued a revised administrative order, which had an effective date of October 18, 1985.  SARA became effective on October 17, 1986
                

C. District Court Opinion

The district court began by identifying the "gap" in the structure of section 9606 in which Bethlehem's situation fell. If Bethlehem had completed the cleanup before October 17, 1986, it would be ineligible for reimbursement because the statute was not to be applied retroactively. See Bethlehem Steel Corp. v. Bush, 736 F.Supp. 945, 948-49 (N.D.Ind.1989). But the court noted that the statute made the result unclear when a company was "in the process " of complying with a cleanup order on October 17, 1986. Id. at 949 (emphasis supplied).

In determining the proper interpretation of the statute to address this gap, the court relied upon Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The district court determined that, under Chevron, a court must accept an agency's interpretation of a statute it administers, provided that interpretation is based on a permissible construction of the statute. 736 F.Supp. at 949. "Since Congress' intent is not clear, the role of this Court in reviewing this construction is limited to deciding whether the EPA's position is reasonable." Id. at 950.

In determining whether the EPA's interpretation of the statute was "a reasonable accommodation of conflicting policies," Id. at 949 (paraphrasing Chevron, 467 U.S. at 844, 104 S.Ct. at 2783), the district court first examined the statutory text. The court noted that, given Congress' experience with CERCLA, it easily could have specified that provisions in SARA covered parties in Bethlehem's position. However, agreeing with the court in Wagner Seed Co. v. Bush, 709 F.Supp. 249 (D.D.C.1989), the district court concluded that, "while this argument may weigh in defendant's favor, it is predicated on the absence of specification and is not conclusive evidence that Congress intended to exclude those in the process of cleanup on October 17, 1986." 736 F.Supp. at 950 (emphasis in original).

The district court then turned to the available legislative history, the sparse case law, and the applicable canons of statutory interpretation. It concluded that there was a reasonable basis for the interpretation of the EPA. With respect to the legislative history, the district court, noting its agreement with the court in Gary Steel Supply Co. v. Reagan, 711 F.Supp. 471 (N.D.Ill.1989), found some, although not conclusive, support for the EPA's position in the statement of the legislation's sponsor. 736 F.Supp. at 950.

The court next addressed the argument that SARA ought to be considered a new cause of action and, therefore, not applied retroactively absent a clear statement from Congress that it intended such an application. The district court declined to characterize Bethlehem's reading of the statute Although declining to characterize the statute as retroactive, the court did believe that SARA created a new right to petition for reimbursement that constituted a waiver of sovereign immunity and, consequently, ought to be construed narrowly. The EPA's construction of the statute, concluded the court, is consistent with the judicial rule that ambiguities concerning waivers of sovereign immunity are to be strictly construed in favor of the government. Id.

as requiring, strictly speaking, "retroactive" application of the statute. Relying explicitly on Wagner Seed, the district court reasoned that, while application of the statute to Bethlehem would compensate the corporation for some expenditures made before the effective date of SARA, Bethlehem was not entitled to reimbursement until the cleanup was complete--a date admittedly after the effective date of SARA. Id. at 951.

Lastly, the district court examined whether the EPA's reading of the statute was consonant with the manifest legislative intent to encourage voluntary private cleanup action. Like the court in Wagner Seed, the court determined that application of the provision in question to SARA "could have had some effect on those who, like Bethlehem, were in the process of compliance." Id. at 951-52. Nevertheless, it concluded that "it was neither arbitrary nor capricious of the EPA to treat all of those who had received orders and were complying with them at the time the Amendment became effective differently from those who received the orders after the Amendment became effective." Id. at 952.

II ANALYSIS

A. Standard of Review

The district court granted the EPA's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). We review a Rule 12(b)(6) dismissal de novo. See Lister v. Stark, 890 F.2d 941, 946 (7th Cir.1989). A party fails to state a claim upon which relief may be granted only if that party "can prove no set of facts upon which relief may be granted." First Interstate Bank of Nevada v. Chapman & Cutler, 837 F.2d 775, 776 (7th Cir.1988) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). We assume well-pleaded allegations are true and shall draw all reasonable inferences in the light most favorable to the plaintiff. See Infinity Broadcasting v. Prudential Ins. Co., 869 F.2d 1073, 1075 (7th Cir.1989). Therefore, our task is to determine whether Bethlehem's allegations can be reasonably construed to justify relief...