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 primary reason for avoiding retroactive application of statutes -- interference with antecedent expectations, see Bennett, 470 U.S. at 640 -- is not particularly strong in this case. In sum, the Court does not find the "retroactivity" argument persuasive.
On the other hand, while defendants' statutory construction arguments may not be conclusive, the Court believes that they are stronger than Wagner Seed's. Beyond relying on the words of the statute, Wagner Seed points out correctly that a "remedial" statute is to be construed in favor of those whom it was intended to protect. See, e.g., Bell v. Brown, 181 U.S. App. D.C. 226, 557 F.2d 849, 853 (D.C. Cir. 1977). However, while it is clear that § 106(b)(2) was intended to provide for reimbursement to some persons who expend funds for cleanups, it also undeniably does not provide reimbursement to any persons who finished cleanups before the provision was enacted. Whether the provision applies to those in the middle, such as Wagner Seed, is not answered by the argument that Wagner Seed is the sort of person that the provision was meant to help.
Finally, the Court notes that when it is confronted with a question concerning construction of an ambiguous statute and an interpretation of that statute by the agency to whom administration is entrusted, the question for the reviewing court is whether the agency's interpretation is based on a permissible construction. Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 at 842-45, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). If the agency's interpretation is one of more than one possible "reasonable" interpretations, the court must defer to the agency. See id. Indeed, even if the Court's interpretation would be different from the agency's, the Court must nonetheless uphold the agency's interpretation, as long as it is a reasonable one. Id. at 844. Deference to an agency's interpretation is required both because the agency holds the expertise on subjects within its domain and because policy choices should be made by the political branches, not the courts. Chevron, 467 U.S. at 864-66; Michigan Citizens for an Independent Press v. Thornburgh, 276 U.S. App. D.C. 130, 868 F.2d 1285, (D.C. Cir. 1989).
Examining the EPA's interpretation of § 106(b)(2), the Court concludes that the interpretation must be upheld because it is a reasonable interpretation of an ambiguous statute. It was reasonable for the EPA to decide not to apply § 106(b)(2) to Wagner Seed, which had received the cleanup order from the EPA and had completed a substantial amount
of the cleanup before the statute was enacted. The EPA noted correctly that a chief purpose of the provision, as expressed in the congressional reports, was to provide incentives for companies to undertake cleanups and comply with EPA 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). While this incentive could have had some effect on those already in the process of cleaning up, it was reasonable for the EPA to decide to interpret the statute as not to apply to those companies that had already agreed to engage in cleanup.
When presented with the ambiguous reimbursement provision, the EPA was forced to decide where to make the cut-off -- either apply it to all companies who made petitions after the law went into effect, or just to those companies who received EPA orders after the provision was enacted. The latter choice did not eviscerate the statute -- it simply placed those who were in the process of cleaning up in the same boat as those who completed cleanup before § 106(b)(2) was enacted. 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.
In sum, the Court finds that defendant's motion to dismiss should be granted, both because the EPA's statutory interpretation of an ambiguous statute was reasonable and, alternatively, because the tenets of statutory interpretation weigh in favor of defendants' proposed statutory construction.
Accordingly, it is
ORDERED that plaintiff's motion for summary judgment is DENIED; it is further
ORDERED that defendants' motion to dismiss is GRANTED.
JUDGMENT ORDER - April 4, 1989, Filed
In accordance with the opinion filed on this date, judgment is entered in favor of DEFENDANTS.