ELR Citation: ELR 20296
No(s). 93-2945 (8th Cir. Sep 12, 1994)

The court holds that a potentially responsible party (PRP) may seek reimbursement of its response costs under §106(b)(2)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) even though the U.S. Environmental Protection Agency (EPA) issued its initial cleanup order to the company before Congress added the reimbursement provision through the Superfund Amendments and Reauthorization Act (SARA). The court first holds that EPA's interpretation of §106(b)(2)(B)—that a PRP must both "receive" and "comply" with a cleanup order after SARA's effective date to obtain reimbursement—is not entitled to deference, because Congress did not include any language in §106(b)(2)(B) indicating that it intends the action be one for judicial review. That Congress omitted language regarding judicial review from §106(b)(2)(B) supports the conclusion that Congress intended that actions brought under this provision be tried de novo. Moreover, §106(b)(2)(B)'s language clearly gives plenary power to the court to interpret the section. Further, it would be inappropriate to consult executive branch interpretations of §106(b)(2)(B), because the section creates a private right-of-action against EPA for reimbursement of response costs and explicitly establishes the judiciary as adjudicator of the parties' rights. The court next holds that even assuming arguendo that EPA's interpretation is correct, the PRP "received" and "complied" with the cleanup order after §106(b)(2)(B)'s effective date. Although EPA issued its original order before the reimbursement provision's effective date, EPA modified the cleanup order three times after that date. Moreover, the cumulative effect of the modifications made the resulting order considerably different from EPA's original order, and the cleanup work was not commenced until after EPA made its final modifications. Thus, the PRP did not "receive," and was unable to "comply" with, the order until after the reimbursement provision's effective date.

Counsel for Appellant
Charles F. Lettow
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700

Counsel for Appellees
John A. Bryson, Jacques B. Gelin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and BEAM, Circuit Judge.