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April 4, 1989

WAGNER SEED CO., INC., Plaintiff,
GEORGE BUSH, President of the United States; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants

The opinion of the court was delivered by: REVERCOMB


 This case involves a claim by plaintiff, Wagner Seed Co., for reimbursement of funds expended by it for an environmental cleanup ordered by defendant United States Environmental Protection Agency ("EPA"). The case turns primarily on an interpretation of section 106(b)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9606(b)(2). The parties each filed dispositive motions; oral argument was heard on December 1, 1988. In this opinion and order, the Court grants defendants' motion to dismiss.

 I. Facts

 Wagner Seed stored various agricultural products, including pesticides, at its warehouse in Farmingdale, New York. On June 1, 1985, lightning struck the warehouse, burning it down and releasing various contaminants into the environment. The EPA on December 31, 1985, ordered Wagner Seed to clean up the release. *fn1" While Wagner was in the process of cleaning up, Congress approved in 1986 the Superfund Amendments and Reauthorization Act (SARA), which amended CERCLA to provide for reimbursement from Superfund to companies who clean up environmental damage pursuant to an EPA order, if the companies are not liable for costs of the cleanup. 42 U.S.C. § 9606(b)(2). There is no liability if the accident was caused by an "act of God." 42 U.S.C. § 9607(b).

 After Wagner Seed completed the cleanup to EPA's satisfaction, the company in 1988 petitioned under the new provision for reimbursement of the $ 2.3 million it expended for the cleanup. The EPA denied the petition, maintaining that because Wagner Seed was already in the process of cleaning up pursuant to an EPA order when the law was enacted, the company was not entitled to reimbursement. This suit followed.

 II. Discussion

 The reimbursement provision -- section 106(b)(2) of CERCLA -- states that "any person who receives and complies with the terms of any order . . . may . . . petition . . . for reimbursement from the Fund . . . ." 42 U.S.C. § 9606(b)(2). The law clearly covers persons who receive orders from the EPA after the date of enactment, and Wagner Seed does not contend that the law was meant to apply retroactively to those who finished their cleanups before the law was enacted. What is less than clear, however, is whether the provision applies to persons who were in the midst of a cleanup when the law was enacted.

 Similarly, neither side presents concrete evidence of congressional intent through legislative history. *fn2" Instead, the parties are reduced to drawing on secondary sources of statutory interpretation -- maxims, other laws, etc. -- to try to prove their points. Using these aids, the Court concludes that defendants have presented a stronger case, although no single argument on its own is fully persuasive.

 The most persuasive of defendants' statutory construction arguments is based on the rules that a waiver of sovereign immunity is to be construed narrowly, see, e.g., United States v. King, 395 U.S. 1, 4-6, 23 L. Ed. 2d 52, 89 S. Ct. 1501 (1969), and that ambiguities concerning such waivers are to be strictly construed in favor of the government. See, e.g., Library of Congress v. Shaw, 478 U.S. 310, 318, 92 L. Ed. 2d 250, 106 S. Ct. 2957 (1986). Because Superfund is a trust fund established in the United States Treasury, see 26 U.S.C. § 9507(a), statutes that permit actions to take money from Superfund must be subject to the usual rule about construing sovereign immunity ambiguities in favor of the United States. See Dugan v. Rank, 372 U.S. 609, 620, 10 L. Ed. 2d 15, 83 S. Ct. 999 (1963) (all suits to take money from the public treasury implicate sovereign immunity).

 Somewhat less persuasive is defendant's argument, based on the maxim of expressio unius est exclusio alterius, that "when Congress wanted to make a provision of [CERCLA] retroactive, it knew how to do so." Defendant's Motion at 19. Defendants argue that there is no ambiguity regarding congressional intent toward cleanups in progress when § 106(b)(2) was enacted because Congress has often specified when claims may be made under CERCLA for funds expended in the past. See, e.g., 42 U.S.C. § 9604(c)(5)(C) (credit may be extended to states that expended funds "after January 1, 1978, and before December 11, 1980"). Although the Court believes that this argument weighs in defendants' favor, it cannot conclude from this argument alone that Congress intended § 106(b)(2) not to apply to cleanup operations in progress when the provision was enacted.

 Defendants also point out that the stated purpose of reimbursement provision was to provide an additional incentive for companies to undertake cleanups and comply with cleanup orders. See H.R. Rep. No. 253, 99th Cong., 1st Sess. Pt. I, 139-40 (1985) (statement of EPA administrator); 132 Cong. Rec. H9624 (daily ed. Oct. 8, 1986) (statement of Rep. Eckart). Defendants argue that because there would no need to give an incentive to those who already had started cleanup at the time the section was enacted, the section should not be held to apply to Wagner Seed. The Court notes, however, that the purpose of the law could have been advanced by encouraging those already cleaning up to complete the job thoroughly and without cutting corners. In sum, the Court finds this "purpose of the statute" argument to be less than dispositive.

 Next, while the Court agrees with defendants that statutes affecting substantive rights should not be presumed to apply retroactively, see, e.g., Bennett v. New Jersey, 470 U.S. 632, 638-41, 84 L. Ed. 2d 572, 105 S. Ct. 1555 (1985), the Court is not convinced that Wagner Seed's proposed interpretation would result in a "retroactive" application of the statute. Although applying § 106(b)(2) to Wagner Seed would reimburse the company in part for funds expended before the law went into effect, Wagner Seed clearly was not entitled to petition for reimbursement under § 106(b)(2)(A) until it completed its cleanup, which was after the reimbursement section was enacted. See, e.g., Reynolds v. United States, 292 U.S. 443, 448-49, 78 L. Ed. 1353, 54 S. Ct. 800 (1934) (statute allowing veterans not to have certain medical bills charged against them held not to be retroactive in this case merely because some of the expenses were incurred before the statute went into effect). In addition, the ...

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