Petition for Writ of Certiorari — United Technologies Corp. v. Browning-Ferris Industries, Inc.
Supreme Court brief1995
Ask Donna
What actually matters in this document.
Text
Supreme Court, U.8.
FILED
| 941079 DEC 19 19%
No. 94-
——— TEE ee
Iu the Supreme Court of tle Wuitrd States
OCTOBER TERM, 1994
UNITED TECHNOLOGIES CORPORATION AND
BASF CorPORATION,
Petitioners,
Vv.
BROWNING-FERRIS INDUSTRIES, INC., et al.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the First Circuit
PETITION FOR A WRIT OF CERTIORARI
PETER BUSCEMI *
HOWARD T. WEIR
THOMAS J. O’BRIEN
ELLEN B. STEEN
MORGAN, LEWIS & BOCKIUS
1800 M Street, N.W.
Washington, D.C. 20036
(202) 467-7190
Counsel for Petitioners
* Counsel of Record
WILSON - Eras Printine Co., INc. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
1. Whether private parties are precluded from bringing
an action to recover their “necessary costs of response”
(i.e., cleanup costs) under Section 107(a)(4)(B) of
the Comprehensive Environmental Response, Compen-
sation and Liability Act (“CERCLA”), 42 U.S.C.
§ 9607(a)(4)(B), if they are deemed to be potentially
responsible parties (“PRPs”) and, thus, potentially liable
for some portion of the cleanup costs at the site.
2. Whether the three-year statute of limitations of
CERCLA Section 113(g)(3), 42 U.S.C. § 9613(g)(3),
which applies only to the specific contribution claims
enumerated therein, should also apply to all response
cost recovery claims brought by a PRP, even though
a separate six-year limitations period for such claims is
provided under CERCLA Section 113(g)(2), 42 U.S.C.
§ 9613(g)(2).
ii
LIST OF INTERESTED PARTIES
The Petitioners are United Technologies Corporation
and BASF Corporation.
The Respondents are Browning-Ferris Industries, Inc.,
Carleton Woolen Mills, Inc., Central Maine Power Com-
pany, Community Service Telephone Company, and Pro-
gressive Iron Works, Inc.
iii
STATEMENT UNDER RULE 29.1
In accordance with Rule 29.1 of the Rules of this
Court, petitioner United Technologies Corporation states
that it is not a subsidiary of a publicly-held corporation
and the shares of its U.S. subsidiaries are not publicly
held. Petitioner BASF Corporation states that it is not
a subsidiary of a publicly-held corporation and it has no
subsidiaries with publicly-held stock.
este atte ater Secale
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED 00... cececccccececcccsecececceeee i
LIST OF INTERESTED PARTIES ..00000.00 0. ii
STATEMENT UNDER RULE 29.1 000... eoeccccccecececeeee ili
py Be we Nip yt sy | - cen vi
SORE IN shits Soca aiccistinl eee eee ee 1
PERT cachet laine hati ikea ett iat 1
STATUTORY PROVISIONS INVOLVED .................. 2
STATEMENT OF THE CASE ooo. ccccceeee 2
A. Factual Background ..................2c:.ceee00.--.....-.-.-.... 2
B. Proceedings in the District Court ................... 3
C. Proceedings in the Court of Appeals... 6
REASONS FOR GRANTING THE PETITION .......... 9
I. BY DISCOURAGING PRPs FROM CONDUCT-
ING CLEANUPS, THE COURT OF APPEALS
DECISION WILL FRUSTRATE THE INTENT
OF SIRI Seliialiinctiaicginiciesditeiisasie etityli ns 12
If. THE DENIAL OF A REMEDY UNDER SEC-
TION 107 TO PRPs THAT UNDERTAKE RE-
SPONSE ACTIONS IS CONTRARY TO THE
STATUTE ITSELF, THIS COURT’S DECI-
SION IN KEY TRONIC, AND DECISIONS OF
nen NTE ARAN CE mL 16
III. APPLYING THE THREE-YEAR LIMITA-
TIONS PERIOD TO PETITIONERS’ COST
RECOVERY CLAIMS IS NOT JUSTIFIED BY
THE EXPRESS LANGUAGE OF SECTION
113(g) (3) OR BY CHARACTERIZING THIS
CASE AS ONE FOR CONTRIBUTION ............ 20
CARP INTEE sunisiensacscensessetcohigensiicea mata aa erate 24
vi
TABLE OF AUTHORITIES
Page
Akzo Coatings, Inc. v. Aigner Corp., 30 F.2d 761
CRU Tas ee ease vice ccmetsnasnateenetiaioiens 14
AL Tech Specialty Steel Corp. v. Allegheny Inter-
national, Inc. (In re Allegheny Int'l, Inc.), 126
B.R. 919 (W.D. Pa.), aff'd without opinion, 950
Sf kB kj Steere 18
Avnet v. Allied-Signal, Inc., 825 F. Supp. 1132
CRs TIED <enoscosonnuncreisvetdinnscianestiliaiéaisialichcnimasada 14
Barton Solvents, Inc. v. Southwest Petro-Chem,
Inc., 88 E.R.C. 1022 (D. Kan. 1998) ..................... 14, 19
Bulk Distribution Centers, Inc. v. Monsanto, 589
F. Supp. 1487 (S.D. Fla. 1984) ...................0........ 23
In re Charter Co., 862 F.2d 1500 (11th Cir. 1989) .. 18
Charter Township of Oshtemo v. American Cyana-
mid. Co., et al., No. 1:92:CV:843, 1993 U.S.
Dist. LEXIS 138176 (W.D. Mich. Aug. 19,
WED vceececiescvesishicnstinnisististsttletnenl hataiitcadiaseieaieilitiiihtatieaati 14
Chesapeake & Potomac Tel. Co. v. Peck Iron &
Metai Co., 814 F. Supp. 1269 (E.D. Va. 1992)... 14, 19
City of Philadelphia v. Stepan Chemical Co., 544
F. Supp. 1185 (E.D. Pa. 1962) ............................. 23
Consumer Product Safety Comm’n v. GTE Syl-
vania, Inc., 447 U.S. 102 (1980) .............2...022....... 15
General Elec. Co. v. Litton Indus. Automation Sys.,
Inc., 920 F.2d 1415 (8th Cir. 1990) .................... 14, 18
Key Tronic Corp. v. United States, 114 S. Ct. 1960
ITD scnscinsnivcinsinnccieipneenelinciasieniaieitedtteasiabaalielana tain ahclianinelaeaiaiad passim
Nurad, Inc. v. William E. Hooper & Sons, 966 F.2d
837 (4th Cir. 1992), cert. denied, 113 S. Ct. 377
CIID acinsixcclancidsnccasetipnlanccins he nteaeneadan es eneeccaeatece: 13
O’Neil v. Picillo, 883 F.2d 176 (1st Cir. 1989),
cert. denied, 493 U.S. 1071 (1990) -...................... 19
Transtech Indus., Inc. v. A & Z Septic Clean, 798
ee BS Rk FE . on eerre 14
United States v. Colorado & Eastern Railroad Co.,
Nos. 93-1422, 94-1041, 1994 U.S. App. LEXIS
32675 (10th Cir. Nov. 17, 1994) ........................... 14
United States v. Kramer, 757 F. Supp. 397 (D.N.J.
—e Se SSS
vii
TABLE OF AUTHORITIES—Continued
Page
United States v. SCA Services of Indiana, Inc., 849
F. Supp. 1264 (N.D. Ill. 1994) ...0200000000 14
United States v. South Carolina Recycling and Dis-
posal, 653 F. Supp. 984 (D.S.C. 1984) ......0...... 23
United States v. Western Processing Co., 734
F. Supp. 930 (W.D. Wash. 1990) _........ cimeaitiaiblies 7
Velsicol Chem. Corp. v. Enenco, Inc., 9 F.3d 524
(6th Cir. 19938) ............ Se eS fad cieaicanae 14, 18, 19
Wehner v. Syntex Agribusiness, Inc., 616 F. Supp.
ss ‘s ) _ RvR ae enamses 14, 23
STATUTES
TL LEAT 1
SE eee ae Ne eS 4
eas ccpiubeusenes 4
re I inc cencenccncecoececescntmscenenseecenssses 4
ih CR LE). ) nee 3
ee 22
ee passim
I 2,13
TTC NL eS A ee 2, 7-8
I nc csnenenesemnncemneomeseions 2, 23
Oe i I recess ccecsevcenncnecoccecornnesoasseneuns passim
Re RP ED cnc ecn a cccncroreceemnnenes passim
42 U.S.C. § 9613 (g) (3) 000. Samar na es ES passim
A ae 2,8
SEE ee Tae 2, 21
ET PE 2,21
OTHER AUTHORITIES
H.R. Rep. No. 582, 103d Cong., 2d Sess. 184, 256-
REYES REE ETS PIS ee 15
S. Rep. No. 349, 108d Cong., 2d Sess. 48, 204
2 REIS ESSENERG IS = rer ieee ee te ee CAA 15
United States General Accounting Office, Super-
fund—EPA Has Opportunities to Increase Re-
coveries of Costs, No. GAO/RCED-94-196 (Sep-
tember 1994)... Sainaiabeheghontitnedaatandeaaadideuasdad: 12
Se Rt iPS alee ala ie wala clash csi seer,
ASS RS IRE ae LS Ea Teele Yi boar Wa:
Iu the Supreme Court of the United States
OCTOBER TERM, 1994
No. 94-
UNITED TECHNOLOGIES CORPORATION AND
BASF CoRPORATION,
- Petitioners,
BROWNING-FERRIS INDUSTRIES, INC., et al.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the First Circuit
PETITION FOR A WRIT OF CERTIORARI
United Technologies Corporation and BASF Corpora-
tion, by their undersigned counsel, respectfully petition for
a writ of certiorari to review the judgment of the court of
appeals in this case.
OPINIONS BELOW
The opinion of the two-judge panel of the court of
appeals (App. la-22a) is reported at 33 F.3d 96. The
opinion of the district court (App. 23a-25a) and a report
and recommendation of a magistrate judge of that court
(App. 4 wee are not reported.
JURISDICTION
The judgment of the court of appeals was entered on
August 19, 1994. A petition for rehearing was denied on
September 19, 1994. App. 35a. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
2
STATUTORY PROVISIONS INVOLVED
The principal relevant provisions of CERCLA, Sections
107(a) and 113(f) and (g), codified at 42 U.S.C.
§$ 9607(a) and 9613(f) and (g), are reproduced as an
appendix to the court of appeals opinion. App. 17a-22a.
Other relevant provisions, Sections 107(b), (c), and (e)
and 122(d), (g), and (h) of CERCLA, 42 U.S.C.
§§ 9607(b), (c), and (e) and 9622(d), (g), and (h),
are reproduced in Appendix F. App. 36a-44a.
STATEMENT OF THE CASE
A. Factual Background
Petitioners are engaged in an ongoing environmental
cleanup of the Winthrop Landfill Superfund Site (the
“Site” ), a former municipal landfill near Winthrop, Maine.
The landfill opened in or about 1930 and continued in
operation until the early 1980s. Petitioners brought this
action to recover part of their cleanup costs from respond-
ents, who either arranged for disposal of their own wastes
at the Site or transported the wastes of others to the Site.
In 1981, following the enactment of CERCLA, the
Environmental Protection Agency (“EPA”) placed the
Site on its National Priorities List of most contami-
nated sites. EPA also identified Inmont Corporation
(“Inmont”), the town of Winthrop, and two individuals
as potentially responsible parties (“PRPs”) for the con-
tamination at the Site. In November 1985, Inmont and
the other alleged PRPs entered into a settlement with the
United States and the State of Maine. Inmont agreed to
reimburse the governments $475,000 for the costs they
incurred at the Site and for damage to natural resources.
Inmont also agreed to address the contamination at the
Site.
To allow for judicial enforcement, the governments
each filed complaints in the district court against the set-
3
tling parties in January 1986 and submitted the settlement
to the court in the form of a consent decree. The decree
explicitly provided that “[b]y entering into this Consent
Decree, the Settling Parties do not admit the validity of
any claim asserted in the complaint or any liability arising
under federal or state law from conditions at, by or around
the landfill.” J.A. A-52.*. The district court entered the
consent decree in March 1986.
Petitioners have worked together to fulfill Inmont’s obli-
gations under the consent decree.” Pursuant to the decree,
petitioners initially restricted public exposure to contami-
nation at the Site and conducted studies, focusing pri-
marily on groundwater, to determine the extent of the
contamination and the risks to human health and the
environment. As a result of these studies, EPA deter-
mined, in March 1993, that groundwater treatment was
necessary. Petitioners have since taken steps to implement
that remedy. Remedial measures are still ongoing, but the
cost is expected eventually to total between thirty and
forty million dollars.
B. Proceedings in the District Court
Petitioners filed this action on October 16, 1992, to
recover past and future “response” costs at the Site.
They asserted claims under CERCLA Sections 107(a)
1“J A.” refers to the parties’ joint appendix in the court of
appeals, a copy of which has been lodged with the Clerk of this
Court.
2 Following the closure of its Winthrop plant, Inmont was ac-
quired by petitioner United Technologies Corporation and was later
sold to petitioner BASF Corporation.
3 “Response” is defined by CERCLA to include both “removal”
and “remedial” actions. 42 U.S.C. § 9601(25). “Removal” includes
action to “monitor, assess, and evaluate” contamination and action
to “prevent, minimize, or mitigate damage.” 42 U.S.C. § 9601(23).
“Remedial action” includes “actions consistent with permanent
remedy” such as “cleanup of released hazardous substances.” 42
U.S.C. § 9601 (24).
4
and 113(g)(2). Section 107(a) provides that parties re-
sponsible for contamination “shall be liable for . . . all
costs of removal or remedial action incurred by the United
States Government or a State or an Indian tribe . . . [and]
any other necessary costs of response incurred by any
other person consistent with the national contingency
plan... .” 42 U.S.C. § 9607(a)(4)(A), (B) (emphasis
added). Section 113(g)(2) provides for a declaration of
liability for future response costs in remedying contamina-
tion. 42 U.S.C. § 9613(g)(2).4 Jurisdiction for the
CERCLA claims was based on 42 U.S.C. § 9613(b) and
28 U.S.C § 1331; jurisdiction for two pendent state claims
was based on 28 U.S.C. § 1367.
Respondents moved for summary judgment on _ the
ground that all of petitioners’ CERCLA claims, including
the claim for recovery of response costs under Section
107(a), were claims for contribution, and that all claims
for contribution under CERCLA are governed by
CERCLA’s three-year limitations period under Section
113(g)(3). 42 U.S.C. § 9613(g)(3). Respondents ar-
gued that, because petitioners are PRPs, their claims to
recover cleanup costs are limited to claims for contribu-
tion under Section 113(f)(1), and that, therefore, those
claims had to have been filed no later than three years
after entry of the consent decree.
In opposing respondents’ summary judgment motions,
petitioners pointed out that the plain language of CERCLA
Section 107(a) authorizes actions for recovery of response
costs, not solely by the governments, but also by “any
other person,” a term that includes petitioners, as defined
in CERCLA Section 101(21). 42 U.S.C. §§ 9607(a),
9601(21). Petitioners’ claims for recovery of their
* To recover part of the $475,000 settlement with the government,
petitioners also made a claim for contribution under CERCLA
Section 113(f) (1), which authorizes “[a]ny person [to] seek con-
tribution from any other person who is liable or potentially liable
under section [107(a)].” 42 U.S.C. § 9613(f) (1). That claim was
later dismissed and is not at issue here.
dean ini acter ih a Babe
_
5
cleanup costs were therefore timely because CERCLA
Section 113(g)(2) provides a six-year period to bring
actions “for recovery of the costs referred to in section
[107].” 42 U.S.C. § 9613(g)(2).
The summary judgment motions were assigned to a
magistrate judge for preparation of a report and recom-
mendation. He determined that Section 107(a) is avail-
able only to the government and, perhaps, to private par-
ties who voluntarily clean up a contaminated site “without
waiting for the Government to spur them into action.”
App. 3la. The magistrate judge found that, because
Inmont had agreed to a consent decree, the cleanup by
petitioners was not voluntary. Thus, their “sole recourse
. . was to bring an action under Section 113(g) [sic] for
contribution from other potentially liable parties.” App.
32a. Taking for granted that a three-year limitations pe-
riod automatically applies to all claims for “contribution,”
the magistrate judge ruled that petitioners’ CERCLA
claims, having been filed more than three years after the
consent decree, are time-barred. App. 32a.
Petitioners objected to the magistrate judge’s report and
recommendation. Petitioners argued that the choice be-
tween the two statutes of limitations does not depend on
why the party is conducting a cleanup, but on the nature
of the relief being sought. Through its explicit reference
to Section 107, Section 113(g)(2) applies to recovery of
“response” costs being “incurred” by the claimant in per-
forming a cleanup, while Section 113(g)(3) applies to
actions for contribution for costs liquidated and paid to
the prevailing party under a judgment or settlement. Peti-
tioners observed that. by its express terms, the three-year
period provided in Section 113(g)(3) applies only “with
respect to such costs.” 42 U.S.C. § 9613(g)(3). Asa
result, only petitioners’ contribution claim for the $475,000
settlement with the government was governed by the three-
year limitations period of Section 113(g)(3). See note 4
supra. Petitioners’ remaining claims, those for recovery
6
of response costs that petitioners themselves incurred in
performing the cleanup, are governed by the six-year
limitations period of Section 113(g)(2). 42 USC.
§ 9613(g) (2).
Without discussing CERCLA’s two limitations provi-
sions, the district court, pausing only to correct several
errors in the report of the magistrate judge, adhered to
the magistrate’s recommendation and dismissed petition-
ers’ CERCLA claims on the ground that they are time-
barred. App. 24a-25a.
C. Proceedings in the Court of Appeals
On appeal, petitioners challenged the district court's
holding that a Section 107(a) action cannot be maintained
by a private party that was “spurred” by the government
into conducting a cleanup. Petitioners stressed that the
plain language of Section 107(a) contains no such restric-
tion. Petitioners also argued that, in any event, regardless
of how their action might be characterized, the three-year
limitations period prescribed by Section 113(g)(3) does
not apply, because the language of that provision does not
include this kind of lawsuit.
The court of appeals nevertheless affirmed.® The court
acknowledged at the outset that CERCLA provides two
causes of action for private parties—cost recovery actions
under Section 107(a) and contribution actions under Sec-
tion 113(f). App. 4a. The court assumed, without dis-
cussion, that each right of action has its own separate
statute of limitations: Section 113(g)(2) for actions to
recover response costs under Section 107(a), and Section
113(g)(3) for contribution actions. App. 4a. Thus,
in the court’s view, once an action is classified as either
5 The appeal was decided by a two-judge panel. Then Chief Judge
Breyer heard oral argument on the appeal. Following his nomi-
nation to this Court, he did not participate in the decision or the
opinion of the panel. App. la n.*.
cian tax
7
“cost recovery” or “contribution,” the applicable statute
of limitations inevitably follows.
“Contribution,” according to the court, is “a claim ‘by
and between jointly and severally liable parties for an
appropriate division of the payment one of them has been
compelled to make.’” App. 6a (citation omitted). “In-
nocent parties,” on the other hand, are entitled to an “ac-
tion for recovery of costs” under Section 107(a). App. 8a.
Applying this scheme to the facts of this case, the court
concluded that petitioners’ action “must be classified as an
action for contribution.” App. 10a.
The court of appeals did not endorse the district court’s
reasoning that the availability to a PRP of a cost recovery
action under Section 107(a) depends on whether the PRP
was “spurred” into action by the government. Acknowl-
edging that the rationale of the district court was “prob-
lematic” (App. 16a n.13), the court affirmed on the alter-
native ground that Section 107(a) actions may be brought
only “by innocent parties that have undertaken cleanups
(say, the federal, state, or local government).” App. 7a.
The court did not mention that federal, state, and local
governments and their agencies are themselves frequently
PRPs and that their right to sue under Section 107(a)
does not depend on any showing of “innocence.” See,
e.g., United States v. Kramer, 757 F. Supp. 397, 414
(D.N.J. 1991) (holding that the federal government’s
potential liability as a PRP does not affect its Section
107(a) response cost recovery action): United States v.
Western Processing Co., 734 F. Supp. 930, 939-40 (W.D.
Wash. 1990) (same). Notwithstanding its apparent re-
jection of the district court’s rationale, the court of appeals
also stated, in dictum earlier in its opinion, that it still
might be “possible” for a PRP to recover cleanup costs
under an implied right of action, if the cleanup was un-
dertaken “spontaneously” and “without governmental prod-
ding.” App. 7a n.8.*
* As the statutory basis for this potential implied right, the court
cited CERCLA Section 107(c), 42 U.S.C. § 9607(c), not Section
8
In addition, the court made a variety of gratuitous
erroneous statements, not supported by the record and
not advocated in any of the parties’ submissions. First,
the court proclaimed that petitioners “are by their own
admission liable parties” under CERCLA. App. 10a. Pe-
titioners never made such an admission. As the consent
decree signed by Inmont makes explicit, “the Settling
Parties do not admit .. . any liability arising under federal
or state law... .” J.A. A-52. Moreover, CERCLA
itself admonishes courts that consent decrees for cleanups
“shall not be considered an admission of liability for
any purpose... .” 42 U.S.C. § 9622(d)(1)(B). To the
extent the court of appeals’ ruling rests on a contrary view,
it is necessarily in error.
Second, the court made the uninvited pronouncement
that, if petitioners’ claim were governed by Section
113(g)(2), the accrual date of that claim would be
March 1986. App. 4a. The accrual date under the six-
year limitations provision was never raised or argued by
any party, either in the court of appeals or in the district
court, because respondents never contended that petition-
ers’ claims, filed in October 1992, were untimely under the
six-year limitations statute for actions seeking recovery of
response costs. Nothing in the record supports the notion
that construction of the “remedial action” under CERCLA
began in March 1986. The court did not identify any
basis for its statement.
107(a). The court did not explain how Section 107(c), which deals
entirely with unrelated subjects—punitive damages liability to the
United States in certain circumstances, and determinations of the
amount of liability for owners or operators of motor vehicles, air-
craft, and certain vessels (see App. 36a-38a)—could form the basis
of such an implied right, particularly when, in the court’s view,
the express language of Section 107(a) was insufficient to the task.
Of course, the reference to Section 107(c) could have been a typo-
graphical error, intended instead to refer to Section 107(a), but,
if that is so, it merely begs the question of where in Section 107(a)
the “without governmental prodding” limitation is to be found.
9
Petitioners sought rehearing and suggested rehearing en
banc. They argued that the panel’s decision was inconsis-
tent with this Court’s decision in Key Tronic Corp. v.
United States, 114 S. Ct. 1960 (1994), which was issued
after oral argument. In addition, petitioners reminded the
court of their alternative ground for reversal, which the
panel’s opinion failed to address or even mention: the
express language of Section 113(g)(3), the three-year
limitations provision on which respondents rely, does not
cover this action, because by its terms it applies only “with
respect to” costs paid to a party in whose favor a judg-
ment or settlement has been entered.
The court denied the petition for rehearing. App. 35a.
A few days before that denial, the clerk issued an errata
sheet, correcting several errors and changing the accrual
date for petitioners’ action under Section 113(g)(2) to
“no later than early 1987,” on the ground that “remedial
construction apparently started . . . within one year of
{March 1986].” App. 34a (emphasis added). The errata
sheet provided no explanation or citation for this alterna-
tive declaration, and it too finds no support in the record.
REASONS FOR GRANTING THE PETITION
This case presents significant issues that, if not reviewed
by this Court, will dramatically and negatively affect the
statutory scheme Congress enacted to clean up hazardous
waste sites. The decision of the court of appeals con-
flicts with that statutory scheme and with decisions of this
Court and other courts. The petition should be granted
to resolve issues that threaten to hinder the very environ-
mental goals that CERCLA was intended to achieve.
The court of appeals made two fundamental errors.
First, the court determined that PRPs have no rights to
recover response costs under Section 107(a) of CERCLA.
The court interpreted CERCLA to limit PRPs to contribu-
tion relief under Section 113(f)(1). But that ruling is
flatly contradicted by the plain language of Section
10
107(a) and by the decision of this Court last term in
Key Tronic Corp. v. United States, 114 S. Ct. 1960
(1994). In that case, both the majority and dissent found
that a PRP could recover response costs under Section
107(a); the only disagreement on this score was whether
the right is implied or express. The court of appeals
departed substantially from Key Tronic when it denied a
Section 107(a) remedy to petitioners on the ground that
they are alleged to be PRPs.
In addition, the court of appeals misapplied the two
separate statute of limitations provisions of CERCLA.
The court assumed, without justification, that all contribu-
tion actions are subject to the three-year limitations pe-
riod of Section 113(g)(3), and that the six-year period
for response cost actions in Section 113(g)(2) is limited
to claims by “innocent” parties under Section 107(a).
That assumption does not square with the plain language
of the statutory provisions in question.
Rather, when Congress added the statute of limitation
provisions to CERCLA in 1986 (six years after
CERCLA was enacted), Congress made clear that Sec-
tion 113(g)(2) was to govern any initial or subsequent
action for the recovery of response costs under Section
107(a). Congress did not say that any cost recovery ac-
tion by a PRP that has entered into a consent decree
should be classified as an action for contribution, and,
even if a contribution label is applied to such actions,
Congress did not provide that any action for contribution
is governed by the three-year limitations period in Sec-
tion 113(g)(3). All of the actions covered by Section
113(g)(3) are actions for contribution, but the statute
does not say that all actions for contribution are covered
by Section 113(g)(3). Section 113(g)(3) applies only
to the specific kinds of actions enumerated therein, and
Section 113(g)(2) applies more generally to any cost
recovery action under Section 107(a). This is in keeping
with the overall statutory scheme, which specifies that the
actions described in Section 107(a) are authorized “[n]ot-
11
-
withstanding any other provision or rule of law... .”
As discussed in more detail below, recent congressional
deliberations confirm that Congress intended to apply a
six-year limitations period to actions brought by PRPs
to recover costs that they themselves incurred in conduct-
ing a cleanup, whatever such actions may be called.
Moreover, aside from flying in the face of congressional
intent, the court of appeals’ decision will have far-reach-
ing implications for the pace and financial burden of
cleanups at numerous hazardous waste sites. One of the
primary goals of CERCLA is to encourage private parties
to assume responsibility for cleanup activities. By pro-
hibiting PRPs from pursuing cost recovery under Section
107(a), and relegating them instead to a contribution
action under Section 113(f), the appellate court’s deci-
sion creates a disincentive for PRPs to clean up sites.
The result will be a greater demand on public funds to
carry out cleanup actions and increased litigation on
peripheral matters, such as statute of limitations questions.
Because of their potentially severe consequences in
cutting off meritorious claims, statutes of limitation
should be unambiguous and easily understood. CER-
CLA’s two limitations provisions, however, are shrouded
in uncertainty and confusion, both among PRPs and in
the courts. Likewise in an unsettled state are the rights
that Congress granted under Section 107(a) to PRPs
that have agreed to perform cleanups.
For these reasons, which are explained more fully
below, this Court should grant the petition and give much
needed guidance to the courts as well as to the many
thousands of PRPs whose rights are now in limbo.
12
I. BY DISCOURAGING PRPs FROM CONDUCTING
CLEANUPS, THE COURT OF APPEALS DECISION
WILL FRUSTRATE THE INTENT OF CONGRESS.
The decision of the court of appeals dramatically alters
the rights of every PRP conducting a cleanup of a con-
taminated site. PRPs entered more than 2,000 settle-
ments with EPA from 1980 through 1993. These PRPs
alone have undertaken and continue to be responsible
for cleanup services valued at more than eight billion
dollars.’ In addition, PRPs at numerous other sites are
performing cleanups under the supervision of state regu-
latory agencies or without having entered into a formal
settlement agreement. Many other PRPs will soon face
the decision whether or not to agree to clean up contami-
nated sites. The rights of all of these PRPs to recover
their response costs, and the ground rules affecting those
rights, are at stake in this case.
The cleanup work being conducted by private parties
is in large part a product of the statutory right to re-
cover response costs under Section 107(a) from other
responsible parties. Incentives to private cleanup are
crucial to the Superfund program because the govern-
ment fund is inadequate to cover the initial costs of
cleanup of many sites. EPA estimates that in 1993
alone, settling PRPs initiated nearly 80 percent of the
long-term cleanups at sites listed on the National Priorities
List of contaminated sites. GAO Report at 4. Section
107(a) cost recovery is the primary incentive provided
in the Superfund program to facilitate EPA’s task of
convincing PRPs to conduct cleanups themselves rather
than waiting to be sued later for the costs of cleanup per-
formed by others. The decision of the court of appeals
removes this incentive, substitutes a less effective contribu-
tion action with a shorter statute of limitations, and thus
7 United States General Accounting Office, Superfund—EPA Has
Opportunities to Increase Recoveries of Costs, GAO/RCED-94-196
(September 1994) (“GAO Report’) at 18.
13
necessarily diminishes the willingness of PRPs to settle
with the government and conduct a cleanup.
A cost recovery action under Section 107(a) provides
several advantages for a PRP that has agreed to conduct
a cleanup. First, defendant PRPs in such an action are
subject to strict liability. Second, the liability of defend-
ant PRPs, once established, is joint and several, thus
providing the party conducting the cleanup with increased
prospects for actual recovery and protection against the
risk that some PRPs will be insolvent or unknown. Third,
the defenses that may be asserted in a Section 107(a)
action are limited to those expressly enumerated in Sec-
tion 107(b). If left undisturbed, the decision of the court
of appeals will deny these advantages to PRPs that agree
to conduct cleanups and will thus create incentives, con-
trary to the intent of Congress, for PRPs to resist settling
with EPA and to resist undertaking cleanups. The strong
message will be that private parties who come forward,
enter settlements, clean up sites, and seek to recover their
costs from PRPs that were unwilling to share responsibil-
ity will receive no special benefit for their labors and
costs. To the contrary, they will have much greater ex-
posure and higher risk than PRPs that do nothing and
wait to be sued. That is not what Congress intended.
Nurad, Inc. v. William E. Hooper & Sons, 966 F.2d 837,
841 (4th Cir. 1992), cert. denied, 113 S. Ct. 377 (1992)
(private cost recovery under Section 107 is to encourage
private cleanup) (citing 1980 House report).
The practical difficulties created by the denial of a
right to recover response costs under Section 107(a) are
compounded by widespread confusion in the federal
courts following the amendments to CERCLA enacted in
1986 in the Superfund Amendments and Reauthorization
Act of 1986 (“SARA”). Pub. L. No. 99-499, 100 Stat.
1613 (1986). Three of the four principal CERCLA pro-
visions at issue in this case, Section 113(f), (g)(2), and
(g)(3), were added by SARA. The relevant portions
of Section 107(a), the other provision construed by the
14 |
court of appeals, appeared in CERCLA as originally
enacted in 1980 and were not changed by SARA. The
confusion stems largely from the fact that SARA did not
describe the relationship between the express right of ac-
tion for contribution recognized in Section 113(f), the
response cost recovery actions authorized in Section 107
(a), and the implied right of action for contribution that
some courts had found in CERCLA before SARA’s en-
actment. F.g., Wehner v. Syntex Agribusiness, Inc., 616
F. Supp. 27, 31 (E.D. Mo. 1985). Accord, Key Tronic,
1148S. Ct. at 1965.
Rather than removing any doubt about the legal rights
of PRPs under CERCLA, SARA has in some respects
made matters worse. The relevant case law has recently
been reviewed at some length in United States v. SCA
Services of Indiana, Inc., 849 F. Supp. 1264 (N.D. IIL.
1994). Although the majority of courts have determined
that PRPs conducting cleanups may recover their re-
sponse costs under Section 107(a), a significant number
of other courts have held that PRPs must look solely to
Section 113(f)(1) for any recovery under CERCLA.’
The court of appeals was aware that the law on this point
* Compare, e.g., Velsicol Chem:> Corp. v. Enenco, Inc., 9 F.3d 524
(6th Cir. 1993) ; General Elec. Co. v. Litton Indus. Automation Sys.,
Inc., 920 F.2d 1415 (8th Cir. 1990); United States v. SCA Services
of Indiana, Inc., 849 F. Supp. 1264, 1283 (N.D. Ill. 1994); Barton
Solvents, Inc. v. Southwest Petro-Chem, Inc., 38 E.R.C. 1022, 1027
(D. Kan. 1993) ; Charter Township of Oshtemo v. American Cyana-
mid Co., et al., No. 1:92:CV:843, 1993 U.S. Dist. LEXIS 13176
(W.D. Mich. Aug. 19, 1993) ; Chesapeake & Potomac Tel. Co. v. Peck
Iron & Metal Co., 814 F. Supp. 1269, 1277 (E.D. Va. 1992);
United States v. Kramer, 757 F. Supp. 397, 417 (D.N.J. 1991)
(granting Section 107(a) relief to PRPs), with, e.g., United States
v. Colorado & Eastern Railroad Co., Nos. 93-1422, 94-1041, 1994
U.S. App. LEXIS 32675 (10th Cir. Nov. 17, 1994) ; Akzo Coatings,
Inc. v. Aigner Corp., 30 F.8d 761 (7th Cir. 1994); Transtech
Indus., Inc. v. A & Z Septic Clean, 798 F. Supp. 1079, 1086-87
(D.N.J. 1992); Avnet v. Allied-Signal, Inc., 825 F. Supp. 1132,
1139 (D.R.I. 1992) (PRPs’ remedy is limited to contribution).
eee
15
is not settled and thus set out to “clarify the relationship
between cost recovery actions and contribution actions”
under CERCLA. App. 2a. The result of the court of
appeals’ effort, however, will be the opposite of the one
intended. As explained in the following sections, the de-
cision below conflicts not only with the decision of this
Court in Key Tronic but also with the language of the
statute itself.
Indeed, the evidence from recent congressional action
on CERCLA amendments demonstrates convincingly
that Congress always intended PRPs conducting cleanups
to have the benefit of the six-year limitations period. As
Superfund amendments and reauthorization worked their
way through Congress during the 1994 session, the bills
reported out of committees in both houses clarified the
limitations provisions to remove any doubt that PRPs
conducting cleanups may file suit within six years of con-
struction of remedial actions, even if they are subject to
a judgment or settlement.’ These provisions were not
controversial, and the bills were reported favorably by
every committee to which they were referred,” but uiti-
mately, as a result of political disputes unrelated to CER-
9 H.R. Rep. No. 582, Part I, 103d Cong., 2d Sess. 184, 256-57
(1994); S. Rep. No. 349, 103d Cong., 2d Sess. 48, 2C4 (1994).
Although this Court has warned of the hazards of using subsequent
legislative materials to illuminate the meaning of statutory language
adopted by an earlier Congress, see, €.g., Consumer Product Safety
Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 117-119 (1980), it is
worth noting that Chairman Dingell and 18 other senior members
of the House Committee on Energy and Commerce were also mem-
bers of the Committee in 1986, when SARA was enacted. Likewise,
Chairman Baucus and six other senior members of the Senate
Coramittee on Environment and Public Works were members of
that Committee when SARA was enacted.
10 The bills were reported favorably by the House committees on
energy and commerce, public works and transportation, and ways
and means, and the Senate committees on environment and public
works and finance. H.R. Rep. No. 582, Parts I, II, and III; S. Rep.
No. 349.
16
CLA’s statutes of limitations, the bills were not brought
to a floor vote in either house before Congress adjourned
for the recent elections. The political difficulties associated
with enacting comprehensive amendments to a statute of
CERCLA’s significance emphasizes the need for definitive
judicial interpretation of the statutory language that cur-
rently exists. Review by this Court is essential to clarify
the rights of PRPs who clean up contaminated sites and
to establish once and for all the applicable limitations
periods for parties whose rights are being and will be
adjudicated under the present version of CERCLA.
II. THE DENIAL OF A REMEDY UNDER SECTION
107 TO PRPs THAT UNDERTAKE RESPONSE
ACTIONS IS CONTRARY TO THE STATUTE
ITSELF, THIS COURT’S DECISION IN KEY
TRONIC, AND DECISIONS OF OTHER COURTS.
The key to the court of appeals decision is the determi-
nation of whether petitioners’ claim comes under Section
107(a) or Section 113(f). The court concluded that peti-
tioners have no right of action under Section 107(a).
Rather, as “ ‘non-innocent’ part[ies],” petitioners’ only re-
course is to seek contribution under Section 113. App. 8a.
That holding is totally at odds with the remedial
scheme explained in Key Tronic. In that case the plain-
tiff was a PRP that had incurred response costs of its own
and that had also made a monetary payment to the gov-
ernment in settlement of proceedings initiated by EPA
and a state counterpart. 114 S. Ct. at 1963."’ Nonethe-
11 Unlike petitioners here, Key Tronic Corporation did not agree
to assume principal responsibility for a cleanup. Nevertheless, Key
Tronic was permitted to bring not only a contribution claim under
Section 113(f) to recover part of the money it had paid to the
government, but also a response cost recovery action under Section
107(a) to recover the costs that Key Tronic itself had incurred.
Most of Key Tronic’s direct response costs consisted of attorney’s
fees, and that is what gave rise to the issue that this Court
decided in the case.
17
less, the Court decided that the PRP plaintiff, a “non-
innocent party” in the parlance of the court of appeals,
was entitled to recover response costs under Ҥ 107,
which impliedly authorizes private parties to recover
cleanup costs from other PRP’s.” Id. at 1967 (emphasis
added). Regardless of whether respondents or the court
of appeals might label such an action as one for “con-
tribution,” Key Tronic left no room for doubt about a
PRP’s right to recover necessary costs of response under
Section 107(a).”
The court of appeals acknowledged that petitioners’ ac-
tion for recovery of cleanup costs would be timely if
petitioners were entitled to seek relief under Section
107(a). App. 4a. Yet, despite this Court’s unanimous
view that PRPs are entitled to do just that, the court of
appeals took a contrary position and, for that reason
alone, found petitioners’ claim to be subject to the limita-
tions period of Section 113(g)(3). App. 15a-16a.
But that is not the only point on which the opinion of
the court of appeals departs from Key Tronic. The court
below also decided that, by recognizing an express right
of contribution, the 1986 amendments to CERCLA re-
voked an implied right of action that courts had discerned
under Section 107(a) before CERCLA was amended.
The court reached this result despite the fact that, in
amending CERCLA in 1986, Congress left untouched
Section 107(a)’s opening phrase, which provides that the
right of action created in that section applies “[n]Jotwith-
standing any other provision or rule of law... .” Never-
theless the court of appeals concluded that the remedies
available under Section 107 and Section 113 are “distinct,
non-overlapping anodynes,” and that therefore a claimant
with a contribution remedy under Section 113 is ineligible
12 The dissent also found that Section 107(a) authorized recov-
ery, taking issue only with the majority’s characterization of a
PRP’s right as an “implied” rather than an express right of action.
114 S. Ct. at 1968.
a tg
for relief under Section 107. App. 15a-16a (emphasis
added ).
Key Tronic reached the opposite conclusion. “[T]he
statute now expressly authorizes a cause of action for
contribution in § 113 and impliedly authorizes a similar
and somewhat overlapping remedy in § 107.” 114 S. Ct.
at 1966 (emphasis added). Thus, the 1986 amendments
explicitly provided in Section 113 for the availability of
a contribution remedy, but they did not alter or nullify
the right of action that remained available under Section
107(a). The court of appeals sidestepped the conflict
in a footnote, maintaining that Key Tronic “expressed
no views anent the relation between contribution and
cost recovery actions.” App. 16a n.12.
Furthermore, a prohibition against PRPs recovering re-
sponse costs under Section 107(a) produces a result that
cannot be reconciled with cases decided by the Third,
Sixth, and Eighth Circuits. E.g., AL Tech Specialty Steel
Corp. v. Allegheny Int'l, Inc. (In re Allegheny Int'l, Inc.),
126 B.R. 919, 923 (W.D. Pa.), aff'd without opinion,
950 F.2d 721 (3d Cir. 1991) (Section i07(a) recovery
awarded because “AL Tech does not seek to recover re-
sponse costs owed to, or incurred by, the EPA, the DEC,
or any other third party, but instead seeks to recover re-
sponse costs it has directly incurred and will directly incur
in the future”); General Elec. Co. v. Litton Indus. Auto-
mation Sys., Inc., 920 F.2d 1415, 1418 (8th Cir. 1990),
cert. denied, 499 U.S. 937 (1991) (PRP entitled to Sec-
tion 107(a) remedy despite prodding by threat of law-
suit); Velsicol Chem. Corp. v. Enenco, Inc., 9 F.3d 524
529-30 (6th Cir. 1993) (PRP’s Section 107(a) action
timely under Section 113(g)(2)). Accord, In re Charter
Co., 862 F.2d 1500, 1503 (11th Cir. 1989) (bankruptcy
claimants may recover under Section 107(a) for response
costs incurred directly by them but not response costs in-
curred by third parties).
As mentioned above, the identity of the particular stat-
utory provision or provisions that allow PRPs to recover
19
response costs is significant for several reasons, wholly
apart from the limitations issue. There are substantial
differences in the remedies afforded under Section 107(a)
and Section 113(f) that make this issue especially im-
portant to petitioners and other PRPs that agree to per-
form cleanups.
For example, Section 107(a) imposes strict liability,
-and private claimants whose rights are derived from that
section are entitled to joint and several liability against
defendant PRPs; these are benefits not available to Sec-
tion 113(f) contribution claimants. Barton Solvents, Inc.
v. Southwest Petro-Chem, Inc., 38 E.R.C. (BNA) 1022,
1027 (D. Kan. 1993); Chesapeake & Potomac Tel. Co.
v. Peck Iron & Metal Co., 814 F. Supp. 1269, 1277 (E.D.
Va. 1992). These distinctions alone can have an enor-
mous impact on the amount plaintiffs can recover at sites
where substantial contamination was caused by parties
that are no longer solvent or PRPs whose identity cannot
be determined (so-called “orphan shares”). E.g., O'Neil
v. Picillo, 883 F.2d 176, 179 (1st Cir. 1989), cert. de-
nied, 493 U.S. 1071 (1990) (contribution not a panacea
because of difficulty in locating solvent PRPs); Chesa-
peake & Potomac, 814 F. Supp. at 1277-78.
Another practical consideration is that actions under
Section 107(a) are subject to only the three defenses that
are enumerated in Section 107(b). 42 U.S.C. § 9607(b).
Under Section 113(f), however, contribution claimants
are subject to equitable defenses and to causation-related
defenses as well. Velsicol Chem. Corp. v. Enenco, Inc.,
9 F.3d at 530; United States v. Kramer, 757 F. Supp.
397, 427 (D.N.J. 1991).
Such considerations weigh heavily on PRPs that must
decide whether to cooperate with the government and take
the lead in conducting a cleanup or to sit on the sidelines
and wait for the government or another PRP to do the
work. Given the court of appeals’ ruling, PRPs will likely
conclude that, in view of the costs and risks associated
with undertaking a cleanup, it is preferable to defend
——
20
against a contribution claim that might be brought in the
future after a cleanup is well underway. By encouraging
this kind: of choice, the decision below undermines the
enforcement scheme established by Congress in CERCLA,
and jeopardizes future cleanup efforts.
lil, APPLYING THE THREE-YEAR LIMITATIONS
PERIOD TO PETITIONERS’ COST RECOVERY
CLAIMS IS NOT JUSTIFIED BY THE EXPRESS
LANGUAGE OF SECTION 113(g)(3) OR BY
CHARACTERIZING THIS CASE AS ONE FOR
CONTRIBUTION.
As noted in the description of the court of appeals’
opinion above (see pages 6, 9, supra), the court did not
address the specific language of Section 113(g)(3). Re-
spondents, however, contended below that the three-year
statute of limitations applies because (a) petitioners’ ac-
tion is one for contribution and (b) the three-year period
of Section 113(g)(3) applies to all contribution claims.
Neither argument is faithful to the relevant statutory
provisions.
Starting with the second prong of the argument, it
would not follow that Section 113(g)(3) governs peti-
tioners’ action, even if one were to assume for the sake
of argument that the claim for response costs is cor-
rectly styled a claim for “contribution.” The court of
appeals simply assumed, without explanation, that Section
113(g)(3) applies to all contribution actions under
CERCLA. App. 4a. That assumption is not supported
by a close reading of the CERCLA limitations provisions.
Section 113(g)(2) applies to “recovery of the costs
referred to in Section [107],” i.e., “necessary costs
of response incurred by any other person.” 42 U.S.C.
§§ 9613(g)(2), 9607(a). Respondents do not dispute
that petitioners’ costs are precisely the kind of response
costs “referred to in Section [107].”
In contrast, Section 113(g)(3) deals exclusively with
actions seeking contribution for costs the claimant has
been required to pay to another party, and makes no men-
21
tion of contribution for cleanup costs directly incurred by
the claimant. In particular, Section 113(g)(3) covers
only four situations: (1) a judgment in a cost recovery
action, which could require only the payment of money
to another party who has incurred cleanup costs; (2) de
minimis settlements under Section 122(g), which allows
cash-out settlement with the government for parties re-
sponsible for only minor contamination, 42 U.S.C.
§ 9622(g)(2); (3) cost recovery settlements under Sec-
tion 122(h), which authorizes monetary settlement of
claims for “costs incurred by the United States Govern-
ment,” id. § 9622(h)(1); and (4) a “judicially approved
settlement with respect to such costs or damages.” Id.
§ 9613(g)(3) (emphasis added).
The court of appeals relied on the last item: a judicially
approved settlement. App. 4a-Sa. But the court did not
give effect to all of the language of the statute. By its
terms, the final phrase of Section 113(g)(3) addresses
only the payments a contribution claimant makes to the
party with whom it settles. This is clear from the statutory
language emphasized above, which expressly limits the
application of Section 113(g)(3)(B) to the particular
response costs the claimant agreed to pay in the judicially
approved settlement. Petitioners’ $475,000 settlement with
the government is the only cost that comes within the
plain language of the statute.
Conspicuously missing from the kinds of claims enumer-
ated in Section 113(g)(3) are claims arising from
CERCLA’s injunctive-type remedies. For example, Sec-
tion 113(g)(3) does not cover costs incurred under a
court-ordered cleanup under Section 106, an EPA admin-
istrative cleanup order under Section 106, or a settlement
under Section 122(d) that, like the one at issue in this
case, requires a private party to conduct a cleanup. The
exclusion of contribution claims based on injunctive rem-
edies cannot be an accident; Congress obviously intended
Section 113(g)(3) to cover only contribution claims seek-
ing the recovery of money paid to another, not claims
22
(even if properly denominated as claims for contribution)
seeking recovery of cleanup costs that the claimant itself
incurs over time pursuant to an order or settlement.
Neither the court of appeals nor respondents offered any
explanation of how the specific language of Section
113(g)(3) could be read to include petitioners’ action
for response costs. Indeed, at oral argument, then Chief
Judge Breyer questioned respondents on this very point,
with specific reference to the relevant statutory language,
and respondents failed to explain how Section 113(g)(3)
could possibly cover the disputed claims.
As the statutory language shows, the limitations period
set out in Section 113(g)(3) is confined to certain spe-
cifically enumerated situations. These situations do not
include actions by PRPs to recover cleanup costs that
they incurred in response to cleanup orders from EPA
or pursuant to an agreement, such as the one entered by
Inmont, to clean up a Superfund site. This exclusion from
the coverage of Section 113(g)(3) is particularly evident
when PRPs are ordered by EPA under Section 106 to con-
duct the cleanup, because such orders cannot conceivably
be deemed a “judicially approved settlement.” Nor do they
otherwise fit within any of the three other situations cov-
ered by Section 113(g)(3). Those claimants must be
governed by the six-year period in Section 113(g)(2).
Given the strong congressional desire to encourage PRPs
to settle with EPA, it is inconceivable that Congress would
subject parties who agree in settlements to conduct clean-
ups to a far shorter time bar than that available to parties
who refuse to settle and are ordered to clean up.
The first prong of the court’s decision—that petitioners’
action is one for contribution—is also wrong, at least if
the word “contribution” is used in the narrow sense em-
ployed in the 1986 amendments to CERCLA. The ex-
press right to “contribution” recognized in SARA was not
needed to address petitioners’ situation. PRPs that them-
selves have incurred response costs always have been en-
23
titled to sue for cost recovery under Section 107(a), since
the original enactment of CERCLA in 1980. See, e.g.,
Bulk Distribution Centers, Inc. v. Monsanto, 589 F. Supp.
1437, 1443 (S.D. Fla. 1984) (private party entitled
to recover response costs under Section 107(a), except
where claim not ripe) (citing cases); City of Philadelphia
v. Stepan Chemical Co., 544 F. Supp. 1135, 1143 (E.D.
Pa. 1982) (site owner can recover response costs under
Section 107(a) ).
Section 113(f) of SARA clarified the right to con-
tribution of PRPs who had not themselves incurred re-
sponse costs, but who were sued under Section 107(a)
for response costs incurred by the government or some-
one else. Because CERCLA originally contained no
express right of contribution, courts were faced with the
question of whether parties that were not cleaning up a
site, but were jointly and severally liable under Section
107(a), could obtain contribution for the amounts they
were required to pay the government. Most courts found
that cost recovery defendants could obtain contribution,
because such a right was implied in the legislative history
of CERCLA and in CERCLA Section 107(e) (2), which
preserves causes of action available “by subrogation or
otherwise.” 42 U.S.C. § 9607(e)(2). E.g., Wehner v.
Syntex Agribusiness, Inc., 616 F. Supp. 27, 31 (E.D. Mo.
1985) (cross-claim for contribution for any amounts
found to be due to plaintiff is implicitly recognized in Sec-
tion 107(e)(2) and the legislative history of CERCLA);
United States v. South Carolina Recycling and Disposal,
653 F. Supp. 984, 995 (D.S.C. 1984) (right of contribu-
tion implied from common law principles and Section
107(e)(2)).
By expressly recognizing a right to “contribution” in
SARA, Congress thus confirmed the same contribution
right that had previously existed only by implication. The
focus was on claimants whose liability to others had been
(or would be) liquidated and reduced to a sum certain
24
and who sought to recover part of that sum from other
PRPs. But nothing in the language of Section 113(f),
or in the jurisprudence that led to its adoption in SARA,
remotely suggests that Congress intended to limit, much
less revoke, rights it had originally granted in Section
107(a) to parties undertaking response actions at a site.
Petitioners’ right to sue for cost recovery under Section
107(a) thus remained intact even after SARA’s express
inclusion of a contribution remedy.
For all these reasons, whether the decision below is
measured against the express language of the statute, the
underlying purposes of CERCLA, this Court’s decision in
Key Tronic, decisions of other federal courts, or the prac-
tical imperatives of CERCLA enforcement, the court of
appeals’ ruling is a serious departure from governing
authority and threatens to hamper achievement of the very
environment goals that CERCLA was designed to pro-
mote. Review by this Court is warranted.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
PETER BUSCEMI *
HOWARD T. WEIR
THOMAS J. O’BRIEN
ELLEN B. STEEN
MORGAN, LEWIS & BOCKIUS
1800 M Street, N.W.
Washington, D.C. 20036
(202) 467-7190
Counsel for Petitioners
December 19, 1994 * Counsel of Record
APPENDICES
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2253
UNITED TECHNOLOGIES CORPORATION, et al.,
Plaintiffs, Appellants,
Vv.
BROWNING-FERRIS INDUSTRIES, INC., et al.,
Defendants, Appellees.
Appeal from the United States District Court
for the District of Maine
{[Hon. Morton A. Brody, U.S. District Judge]
Before
Breyer,* Chief Judge,
Torruella and Selya, Circuit Judges.
August 19, 1994
* Chief Judge Stephen Breyer heard oral argument in this matter
but did not participate in the drafting or the issuance of the
panel’s opinion. The remaining two panelists therefore issue this
opinion. pursuant to 28 U.S.C. § 46(d).
y
aa
SELYA, Circuit Judge. This appeal demands that we
clarify the relationship between cost recovery actions and
contribution actions under the Comprehensive Environ-
mental Response, Compensation and Liability Act
(CERCLA), 42 U.S.C. §§ 9601-9675 (1987), as
amended by the Superfund Amendments and Reauthoriza-
tion Act of 1986 (SARA), Pub. L. No. 99-499, § 101
et seq., 100 Stat. 1613 (1986). Having completed our
task, we affirm the district court’s entry of summary
judgment terminating appellants’ action as time-barred.
I. BACKGROUND
The essential facts are not in dispute. In 1981, after
discovering hazardous substance contaminants at a land-
fill in Winthrop, Maine (the Site), the United States
Environmental Protection Agency (EPA) placed the Site
on its national priority list. The EPA and Maine there-
after undertook a concurrent investigation and determined
that Inmont Corporation, since acquired by plaintiff-
appellant United Technologies Corporation (UTC),’ had
conducted contamination producing activities at the Site
from 1950 to 1975.
In 1982, the EPA notified Inmont that it was liable,
under CERCLA, to clean up the Site. Several years of
dilly-dallying eventually gave way to negotiations among
Inmont and certain other potentially responsible parties
(PRPs),* on one hand, and the appropriate federal and
state officials, on the second hand. The parties reached
a tentative agreement and prepared a consent decree. On
January 29, 1986, the United States filed a civil action
against Inmont and others under CERCLA, with a view
toward securing a judicial imprimatur on the proposed
1UTC acquired Inmont in 1979 and transferred its ownership
to BASF Corporation (a UTC subsidiary) in 1985. Inmont then
merged into BASF. UTC and BASF brought this suit jointly, and
both appear here as appellants.
2 The other PRPs were the Town of Winthrop, Everett Savage,
and Glenda Savage. None of them are involved in this appeal.
3a
decree. The suit alleged that the named defendants were
jointly and severally liable for the costs the United States
had incurred, and would continue to absorb, in respond-
ing to releases and threatened releases at the Site.
The district court promptly consolidated EPA’s case
with a nearly identical case that Maine had filed against
the same defendants; and, on March 23, 1986, the court
entered the consent decree. Pursuant thereto, appellants
agreed to undertake and complete corrective work at the
Site in accordance with a plan for remedial action. The
cleanup proved to be expensive: appellants make the
uncontradicted claim that remedial work cost in excess of
$13,000,000 to date, and that work yet to be done likely
will absorb an additional $20,000,000 or more. Appel-
lants also agreed to reimburse, and have since paid, the
federal and state sovereigns $475,000 for costs previously
incurred with respect to scouring the Site.
On October 16, 1992, appellants brought suit in fed-
eral district court against several defendants, including
Browning-Ferris Industries, Inc. (Browning).* In their
complaint, appellants posited claims under both federal
and state law. They alleged that the defendants were
wholly or partially responsible for contamination of the
Site and sought three separate kinds of relief, namely,
(1) recovery of cleanup costs paid directly by them
(hereinafter ‘“first-instance costs”); (2) recovery of
monies paid by them to reimburse the EPA and Maine
for cleanup costs (hereinafter “reimbursed costs”); and
(3) a declaration of rights in respect to liability for fu-
ture response costs.
Browning moved for summary judgment, hypothesizing
that CERCLA’s statute of limitations barred appellants’
3The other named defendants included Carleton Woolen Mills,
Inc., Central Maine Power Company, Community Service Telephone
Co., Progressive Iron Works, Inc., and Quaker Lace Company.
Early in the proceedings, appellants voluntarily dismissed their
action against Quaker Lace. The remaining defendants appear here
as appellees.
4a
federal claims, and that the pendent state claims should,
therefore, be dismissed for lack of jurisdiction, see, ¢.g.,
Brennan v. Hendrigan, 888 F.2d 189, 196 (Ist Cir.
- 1989) (explaining that pretrial termination of federal-
law claims forces dismissal of pendent state-law claims in
the absence of any other cognizable basis for federal
jurisdiction). Appellants voluntarily dismissed _ their
claims regarding the reimbursed costs (apparently believ-
ing such claims to constitute time-barred contribution
claims), but otherwise opposed the motion. A magis-
trate judge recommended granting brevis disposition with
respect to appellants’ remaining claims. The district court
agreed. See 1993 WL 66007 (D. Me. May 27, 1993).
This appeal followed.*
Il. ANALYSIS
CERCLA and SARA together create two different
kinds of legal actions by which parties can recoup some
or all of the costs associated with cleanups: cost recovery
actions, see 42 U.S.C. § 9607(a), and contribution ac-
tions, see id. § 9613(f)(1). Cost recovery actions are
subject to a six-year statute of limitations, see id. § 9613
(g)(2), while contribution actions must be brought
within half that time, see id. § 9613(g)(3).°
In this case appellants’ cause of action, no matter how
it is visualized, accrued in March, 1986. Compare id.
— § 9613(g)}(2)(B) (providing that the trigger date for a
cost recovery action is fixed by the “initiation of physical
on-site construction of the remedial action”) with id.
§ 9613(g)(3)(B) (providing that the accrual period for
4When Browning sought summary judgment, all the remaining
defendants followed suit. They ultimately achieved an identical
result. This proceeding embraces the district court’s grant of sum-
mary judgment in favor of all defendants. For ease in reference
we treat the appeal as if Browning alone were the appellee, but our
resolution of it applies with full force to all the other appellees.
5 We set out the text of the centrally relevant statutes, 42 U.S.C.
§§ 9607(a), 9613(f) & 9613(g), in an appendix hereto.
| |
5a
contribution actions begins when a “judicially approved
settlement” is entered). Here, remedial construction
started at the Site in the same month that the court en-
tered the consent decree, namely, March of 1986. Appel-
lants brought suit roughly five and one-half years there-
after. Thus, the sole question presented on appeal is
whether appellants’ action is an action for cost recovery
or one for contribution. If appellants’ action qualifics
under the former rubric, it is timely; but, if it is properly
classified under the latter rubric, it comes too late.
Because the issue on appeal turns on the correct in-
terpretation of the relevant statutory provisions, we exer-
cise de novo review. See United States v. Gifford, 17
F.3d 462, 472 (ist Cir. 1994) (holding that questions
of law engender plenary appellate review); Liberty Mut. —
Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750,
757 (1st Cir. 1992) (same).
A. The Contours of Contribution.
Four portions of the statute are of immediately obvious
relevance. The only one of the four found in the original
CERCLA legislation is 42 U.S.C. § 9607(a)(4). This
proviso makes enumerated parties “liable for . . . all costs
of removal or remedial action incurred by [government
entities and] any other necessary costs of response incurred
by any other person consistent with the national contin-
gency plan.” The other three provisions originated in
SARA and are all codified within 42 U.S.C. § 9613. Un-
der 42 U.S.C. § 9613(f)(1), “[a]ny person may seek
contribution from any other person who is liable or poten-
tially liable” for response costs. The same section contains
two statutes of limitations. One provides that an action
for cost recovery must be commenced within six years
of the accrual date.” /d. § 9613(g)(2). The other pro-
vides that “[n]o action for contribution for any response
® This subsection speaks in terms “of the costs referred to in
[section 9607].” 42 U.S.C. § 9613(g) (2).
6a
costs or damages may be commenced more than 3 years
after... the date of . . . entry of a judicially approved
settlement with respect to such costs or damages.” Id.
§ 9613(g) (3).
It is apodictic that our first recourse must be to the
statute’s text and structure. See United States v. O'Neil,
11 F.3d 292, 295 (1st Cir. 1993); United States v.
Charles George Trucking Co., 823 F.2d 685, 688 (lst
Cir. 1987). Following this path, it is evident that
CERCLA differentiates between “action[s] for recovery
of . ... costs” and “action[s] for contribution.” Compare
42 US.C. § 9613(g)(2) with id. § 9613(g)(3). Al-
though Congress did not explicitly plot the boundary that
divides these two types of actions, we are not wholly
without guidance. Under accepted canons of construction,
legal terms used in framing a statute are ordinarily pre-
sumed to have been intended to convey their customary
legal meaning. See Bradley v. United States, 410 US.
605, 609 (1973) (holding that “the law uses familiar
legal expressions in their familiar legal sense”) (citation
omitted); MCA, Inc. v. Wilson, 677 F.2d 180, 186 (2d
Cir. 1981) (similar); see also 2A Norman J. Singer,
Sutherland Stat. Const. § 47.30, at 262 (Sth ed. 1992).
This precept has special force when, as now, there is no
persuasive evidence that Congress aspired to use a par-
ticular legal term in some unusual or unorthodox sense.
This canon measurably assists our effort to ascribe
meaning to the word “contribution.” Contribution is a
standard legal term that enjoys a stable, well-known
denotation. It refers to a claim “by and between jointly
and severally liable parties for an appropriate division
of the payment one of them has been compelled to make.”
Akzo Coatings, Inc. v. Aigner Corp., F.3d .
(7th Cir. 1994) [1994 U.S. App. LEXIS 17028 at
*5]; accord Northwest Airlines, Inc. v. Transport Workers
Union, 451 U.S. 77, 87-88 (1981); In re “Agent Orange”
Prod. Liab. Litig., 818 F.2d 204, 207 (2d Cir. 1987);
see also Black’s Law Dictionary 399 (6th ed. 1990) (de-
a
Ta
fining contribution as a right “of one who has discharged
a common liability to recover of another also liable, the
aliquot portion which he ought to pay or bear”).” Ac-
cordingly, absent evidence that Congress had a different,
more exotic definition in mind, we are inclined, in parsing
42 U.S.C. § 9613, to give the word “contribution” its
generally accepted legal meaning.
The relevant external considerations counsel in favor
of this usage and, thus, solidify our inclination. Perhaps
most important, ascribing a traditional meaning to the
term “contribution” fits both CERCLA’s language and its
structure. Under such a reading, the two statutes of limi-
tations complement each other and together exhaust the
types of actions that might be brought to recoup response
costs: the shorter prescriptive period, contained in 42
U.S.C. § 9613(g)(3), governs actions brought by liable
parties during or following a civil action under 42 U.S.C.
§§ 9606-9607(a), while the longer statute of limitations,
contained in 42 U.S.C. § 9613(g)(2), addresses actions
brought by innocent parties that have undertaken cleanups
(say, the federal, state or local government).°
7 Most states have adopted contribution provisions that operate
along substantially similar lexicographical lines. See Northwest
Airlines, 451 U.S. at 87 n.17 (collecting exemplars). This is an
important datum because CERCLA’s legislative history evinces an
intent that courts establish the scope and nature of CERCLA lia-
bility consistent with evolving principles of law. See, e.g., 126
Cong. Rec. 30,932 (1980) (statement of Sen. Randolph) ; 126 Cong.
Rec. 31, 965 (1980) (statement of Rep. Florio).
8 It is possible that, although falling outside the statutory param-
eters established for an express cause of action for contribution,
see 42 U.S.C. § 9613(f) (1), a PRP who spontaneously initiates a
cleanup without governmental prodding might be able to pursue
an implied right of action for contribution under 42 U.S.C. § 9607
(c). See Key Tronic Corp. v. United States, 114 S. Ct. 1960, 1966
(1994) (explaining that CERCLA now “expressly authorizes a
cause of action for contribution in [§ 9613] and impliedly author-
izes a similar and somewhat overlapping remedy in [§ 9607]”);
cf. In re Hemingway Transp., Inc., 993 F.2d 915, 931 (1st Cir.)
8a
This reading fits especially well with the language of
42 U.S.C. § 9613(g)(2), which concerns actions for “re-
covery of the costs.” That phrase, reiterative of the sub-
section heading “Actions for recovery of costs,” suggests
full recovery; and it is sensible to assume that Congress
intended only innocent parties—not parties who were
themselves liable—to be permitted to recoup the whole
of their expenditures. By contrast, 42 U.S.C. § 9613(g)
(3) allows a “non-innocent” party (i.e., a party who him-
self is liable) only to seek recoupment of that portion
of his expenditures which exceeds his pro rata share of
the overall liability—-in other words, to seek contribution
rather than complete indemnity. The statutory language
thus suggests that cost recovery and contribution actions
are distinct and do not overlap.
The pre-SARA caselaw and SARA’s legislative history
dovetail to furnish strong support for imputing a tradi-
tional meaning to the term “contribution” as it appears
in 42 U.S.C. § 9613. As originally written, CERCLA
gave the EPA several remedial choices. For example, it
could (1) clean up a contaminated site and then sue to
recover its response costs, see id. § 9607(a)(4), (2) en-
deavor to compel a PRP to perform a cleanup by adminis-
trative order, or, if the PRP proved recalcitrant, by obtain-
ing a judicial decree, see id. § 9606, or (3) negotiate a
settlement, see id. § 9622. Despite this array of weapons,
however, CERCLA was—and still is—silent as to the
extent of a particular PRP’s liability. Judges abhor
(stating in dictum that “in the event the private-action plaintiff
itself is potentially ‘liable’ to the EPA for response costs, and thus
is akin to a joint ‘tortfeasor,’ section 9607(a)(4)(B) serves as
the pre-enforcement analog to the ‘impleader’ contribution action
permitted under section 9613(f)”), cert. denied, 114 S. Ct. 303
(1993). If, indeed, the law allows such an implied right of action
for contribution to be maintained—a matter on which we take no
view—it is unclear to us whether such a cause of action would be
subject to the three-year or the six-year prescriptive period. Be-
cause this appeal does not pose that question, we leave it for
another day.
9a
vacuums; and the courts filled this lacuna in the statute,
reading CERCLA as imposing joint and several liability on
the part of all responsible parties to reimburse the gov-
ernment for cleanup expenses and to pay response costs.
See, e.g., In re Hemingway Transp., Inc., 993 F.2d 915,
921 (1st Cir.), cert. denied, 114 S. Ct. 303 (1993);
O'Neil v. Picillo, 883 F.2d 176, 178 (1st Cir. 1989),
cert. denied, 493 U.S. 1071 (1990).
Notwithstanding the presumed existence of joint and
several liability, there was much uncertainty prior to
SARA’s passage as to whether a responsible party could
recover from other PRPs the portion of its cleanup costs
that exceeded its pro rata share. See, e.g., United States
Vv. New Castle County, 642 F. Supp. 1258, 1262 (D. Del.
1986) (noting uncertainty). Although most courts ulti-
mately ruled that section 9607 conferred an implied right
of action for contribution in favor of a PRP that paid
more than its ratable share, see, e.g., O'Neil, 883 F.2d
at 179; Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d
1454, 1457 n.3 (9th Cir. 1986), the situation was clouded
by the Court’s refusal to imply rights of action under other
Statutes in the absence of an express direction from Con-
gress, see, eg., Texas Indus., Inc. v. Radcliff Materials,
Inc., 451 U.S. 630, 639-40 (1981) (declining to imply
right of action for contribution under the antitrust laws);
Northwest Airlines, 451 U.S. at 91-95 (finding no implied
right to contribution under either the Equal Pay Act of
1963 or Title VII of the Civil Rights Act of 1964).
This background brings the origins of SARA into sharp
focus. A principal goal of the new section 9613 was to
“clarif[y] and confirm[] the right of a person held jointly
and severally liable under CERCLA to seek contribution
from other potentially liable parties, when the person be-
lieves that it has assumed a share of the cleanup or cost
that may be greater than its equitable share under the cir-
cumstances.” S. Rep. No. 11, 99th Cong., Ist Sess. 44
(1985), reprinted in 2 Legislative History of the Super-
fund Amendments and Reauthorization Act of 1986, 636,
10a
Sp. Print 101-120 (101st Cong., 2d Sess.) (1990); see
also 131 Cong. Rec. 24,450 (1985) (statement of Sen.
Stafford) (predicting that section 9613 would “remove[]
any doubt as to the right of contribution”). Of para-
mount significance for present purposes is that Congress,
in enacting SARA, sought to codify the case law, see
O’Neil, 883 F.2d at 179—and the cases decided to that
point, without exception, employed the legal term “con-
tribution” in its traditional sense to cover an action by one
liable party against another liable party. See, e.g., Bulk
Distrib. Ctrs., Inc. v. Monsanto Co., 589 F. Supp. 1437,
1442-44 (S.D. Fla. 1984); Jones v. Inmont Corp., 584
F. Supp. 1425, 1428-29 (S.D. Ohio 1984).
Taken in the aggregate, this impressive collection of
signposts—canons of construction, other CERCLA lan-
guage, the statute’s structure, the state of the case law
antedating SARA’s passage, and SARA’s legislative his-
tory—point squarely to a conclusion that Congress used
the word “contribution” in the conventional sense, and
fully intended courts to give the word its customary mean-
ing. The authorities so hold. See Akzo Coatings,
F.3d at [1994 U.S. App. LEXIS 17028 at *7];
Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th
Cir. 1989); Avnet, Inc. v. Allied-Signal, Inc., 825 F.
Supp. 1132, 1137-38 (D.R.I. 1992); Transtech Indus.,
Inc. v. A & Z Septic Clean, 798 F. Supp. 1079, 1086
(D.N.J. 1992), appeal dism’d, 5 F.3d 51 (3d Cir. 1993),
cert. denied, 114 S. Ct. 2692 (1994); see also Key
Tronic Corp. Vv. United States, 114 S. Ct. 1960, 1965-66
(1994) (observing that section 9613(f) expressly created
a cause of action permitting a responsible party to seek
contribution from other PRPs).
Applying this legal regime to the facts at hand, and
bearing in mind that appellants are by their own admission
liable parties, their claim against Browning must be classi-
fied as an action for contribution. Hence, unless the claim
can otherwise be saved, it will fall prey to the three-year
bar of 42 U.S.C. § 9613(g) (3).
lla
B. The Statutory Interface.
Appellants argue that, notwithstanding section 9613
(f)(3), the broad, unqualified langlage to the effect that
responsible parties shall be liable to “any other person,”
42 U.S.C. § 9607(a) (4), provides an alternative avenue
for the maintenance of their suit. If this is so, appellants
add, the six-year statute of limitations found in section
9613(g)(2), pertaining to actions for “recovery of the
costs referred to in [§] 9607” must govern in this instance.
At face value, this expansive reading of section 9607 is
untenable; carried to its logical extreme, such a reading
would completely swallow section 9613(g) (3)’s three-year
Statute of limitations associated with actions for contribu-
tion. Since courts must strive to give effect to each sub-
section contained in a statute, indeed, to give effect to
each word and phrase, see United States v. Nordic Village,
Inc., 112 S. Ct. 1011, 1015 (1992); United States v.
Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir. 1985),
we refuse to follow a course that ineluctably produces
judicial nullification of an entire SARA subsection.
Recognizing this looming obstacle, appellants attempt
to skirt it by lowering their sights and, thus, preserving
some semblance of utility for 42 U.S.C. § 9613(g) (3).
In this vein, they focus on the phrase “incurred by,” as
used in 42 U.S.C. § 9607(a), and asseverate, based on
this language, that section 9607(a) only covers actions
to recoup cleanup costs directly paid for (i.e., “incurred” )
by a responsible party (what we have termed first-instance
costs, see supra p. [3a]). If this construction were adopted,
then an action for recoupment of sums paid by a respon-
sible party to a government agency to compensate it, pur-
suant to a settlement or judgment, for the funds it ex-
pended in cleaning up a site (what we have termed reim-
bursed costs, see supra p. [3a]), would lie under section
9613(f), but not under section 9607(a). Hence, section
9613(g)(3) would retain some measure of vitality, for
an action by a responsible party against other PRPs to
12a
recover that portion of the reimbursed costs paid by the
former in excess of its pro rata share would constitute a
contribution claim, subject to the three-year prescriptive
period.”
We are not persuaded by this sleight of hand. For one
thing, appellants’ reading depends on excerpting phrases
from section 9607(a) without due regard for the statute’s
overall content. The full text of the relevant subsection,
reproduced in the appendix infra, makes selected parties
liable for “any other necessary costs of response incurred
by any other person.” This unqualifiedly broad language
comfortably accommodates all response costs incurred by
a private party, not just first-instance costs. In a nutshell,
accepting appellants’ position would require us to read
section 9607’s language (“any other necessary costs”) as
containing an implicit qualification: “except for monies
paid to reimburse government entities’ cleanup costs.”
There is simply no rhyme or reason for reading that con-
dition into what appears on its face to be a straightforward
statutory directive. See, e.g., CIA v. Sims, 471 U.S. 159,
169-70 (1985) (refusing to read limitations into broad
and unconditional statutory language). Under the reading
that we adopt, by contrast, the unqualified language “any
other necessary costs” remains as Congress wrote it, that
is, without qualification.” We think that this reading is
preferable.
For another thing, appellants’ tracing of the statutory
interface is wholly dependent on an unusually cramped
® As an example, appellants suggest that an attempt to recover
some part of the $475,000 payment they made to compensate the
EPA and Maine for the latters’ cleanup expenditures would be
subject to the three-year limitations period, while an attempt to
recover a portion of the response costs ($13,000,000 to date) paid
directly by appellants could be brought under section 9607(a) and
come within the six-year limitations period.
10 As discussed above, see supra p. [9a], 42 U.S.C. § 9613(f) (1)
explicitly confirms the cause of action for contribution that is
implicit in the language of § 9607(a).
13a
reading of the term “contribution.” Under appellants’
theory, the term refers only to reimbursed costs. This
artificial circumscription entirely omits from the sweep
of section 9613 what might be called “traditional” contri-
bution actions. We know of no other court that has given
such an odd definition to the term “contribution” in this
—or any other—context; and, though we recognize that
we are not bound to interpret the word as it is defined
by state law, see 42 U.S.C. § 9613(f)(1) (providing that
claims for contribution “shall be governed by Federal
law”), the responsibility to develop federal common law
is not a license to override policy choices made by the
Congress or to create newfangled definitions for no better
reason than that they suit a party’s convenience or strike
a judge’s fancy. The meaning to be attributed to terms
governed by federal law must, at the very least, comport
with the statutory scheme in which such terms appear,
and, wherever possible, effectuate discernible congressional
~ intent. Put bluntly, a court cannot rewrite a statute by
the simple expedient of calling a camel a horse, over-
looking obvious humps.
Appellants’ suggested interpretation fails this common-
sense test on two grounds. First, 42 U.S.C. § 9613 it-
self appears to reject any distinction for the purposes of
contribution between first-instance costs and reimbursed
costs. After all, subsection 9613(f)(3)(B) authorizes a
party to seek contribution “for some or all of the response
action or for some or all of the costs of such action. . .”
The simple reading of this subsection is that the initial
phrase refers to expenses incurred in the course of a liable
party’s direction of a site’s cleanup while the second
phrase refers to reimbursement of cleanup costs incurred
under the government’s hegemony.
The legislative history confirms this explanation. In
formulating SARA, the Senate Committee on Environ-
ment and Public Works viewed what is now section
9613(f) as intended to permit an action for contribution
l4a
when a party believed that it had “assumed a share of
the cleanup or cost that may be greater than its equitable
share.” S. Rep. No. 11, supra. By like token, the House
Committee on Energy and Commerce stated that contribu-
tion could be had under section 9613(f) by parties “who
settle for all or part of a cleanup or its costs...” H.R.
Rep. No. 253, pt. 1, 99th Cong., 2d Sess. 80 (1985),
reprinted in 1986 U.S.C.C.A.N. 2835, 2862. These state-
ments show beyond serious question that the drafters in-
tended contribution, as that term is used in section 9613,
to cover parties’ disproportionate payments of first-instance
costs as well as parties’ disproportionate payments of re-
imbursed costs.
Second, appellants’ construction emasculates the contri-
bution protection component of CERCLA’s settlement
framework. CERCLA seeks to provide EPA with the
necessary tools to achieve prompt cleanups. See United
States v. Cannons Engineering Corp., 899 F.2d 79, 90-91
(Ist Cir. 1990). One such tool is the ability to foster
incentives for timely settlements. See id. To this end,
42 U.S.C. § 9613(f)(2) provides that a party who settles
with the government “shall not be liable for claims for
contribution regarding matters addressed in the settle-
ment.” Because only the amount of the settlement, not
the pro rata share attributable to the settling party, is
subtracted from the aggregate liability of the nonsettling
parties, see id., section 9613(f)(2) envisions that non-
settling parties may bear disproportionate liability. This
paradigm is not a scrivener’s accident. It “was designed
to encourage settlements and provide PRPs a measure
of finality in return for their willingness to settle.” Can-
nons Engineering, 899 F.2d at 92; see also H.R. Rep.
No. 253, supra, 1986 U.S.C.C.A.N. at 2862.
This mechanism for encouraging settlement would be
gutted were courts to share appellants’ view of the con-
tribution universe, for subsection 9613(f)(2) then would
afford very little protection. Although the subsection still
aaa eile alm iinaeaaeiaaaaiail
l5a
would prevent a settlor from being sued by another re-
sponsible party claiming that the first settlor paid less
than its ratable share of the government's expenses (what
we have termed “reimbursed costs”), the statutory shield
would not extend beyond that point. Most disturbingly,
if a party’s direct, first-instance payments are not grist for
the contribution mill, but, instead, are to be treated as
recovery costs within the purview of section 9607(a), a
nonsettling or later-settling PRP would be entitled to
bring an action against a responsible party who settled
at the earliest practicable moment, but paid less than his
ratable share of the aggregate first-instance payments.
Exposing early settlors who make first-instance payments
to later contribution actions not only would create a need-
less asymmetry in the treatment of first-instance costs as
opposed to reimbursed costs, but also would greatly
diminish the incentive for parties to reach early settle-
ments with the government, thereby thwarting Congress’s
discernible intent."' This result makes little sense, and,
therefore, we reject appellants’ tortured construction of
the statutory language.
III. CONCLUSION
The word “contribution” for purposes of 42 U.S.C.
§ 9613(£) should be given its plain meaning. Adapted to
an environmental case, it refers to an action by a respon-
sible party to recover from another responsible party that
portion of its costs that are in excess of its pro rata share
of the aggregate response costs ( including both first-
instance costs and reimbursed costs). Applying this defi-
nition, the instant action clearly qualifies as an action for
contribution under section 9613( f)(1). And because
CERCLA’s text indicates that contribution and cost re-
11 Tt bears mention that CERCLA’s contribution protection pro-
visions also would be undermined if cost recovery actions were
deemed to be overlapping with contribution actions.
oe
l6a
covery actions are distinct, non-overlapping anodynes,”
the action had to be commenced within three years of its
accrual. See 42 U.S.C. § 9163(g)(3).
We need go no further. Appellants did not deign to
sue until some five and one-half years after entry of the
consent decree. Their suit is, therefore, time-barred.”
. Affirmed.
12 Envisioning contribution and cost recovery actions as non-
overlapping is perfectly consistent with the Court’s recent deter-
mination that 42 U.S.C. §§ 9613 and 9707(a) create “similar and
somewhat overlapping” actions for contribution. Key Tronic, 114
S. Ct. at 1966. The Key Tronic Court was discussing two different
species of contribution actions and expressed no views anent the
relation between contribution and cost recovery actions.
18 The court below reached the same result based on somewhat
different reasoning. While its rationale strikes us as problematic,
we see little point in tilting at windmills. An appellate court is not
chained to the lower court’s reasoning, but may affirm the judgment
below on any independently sufficient basis made manifest by the
record. See Garside Vv. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir.
1990) ; Polyplastics, Inc. v. Transconez, Inc., 827 F.2d 859, 860-61
(Ist Cir. 1987). Thus, we endorse the result reached below solely
for the reasons stated herein.
hr lb
SOT eg are NC ales Are RA stb co
17a
APPENDIX
IV. STATUTORY APPENDIX
§ 9607. Liability
(a) Covered persons; scope; recoverable costs and dam-
ages; interest rate; “comparable maturity” date
Notwithstanding any other provision or rule of law, and
subject only to the defenses set forth in subsection (b)
of this section—
(1) the owner and operator of a vessel or facility,
(2) any person who at the time of disposal of any
hazardous substance owned or operated any facility
at which such hazardous substances were disposed
of,
(3) any person who by contract, agreement, or
otherwise arranged for disposal or treatment, or
arranged with a transporter for transport for disposal
or treatment, of hazardous substances owned or pos-
sessed by such person, by any other party or entity,
at any facility or incineration vessel owned or oper-
ated by another party or entity and containing such
hazardous substances, and
(4) any person who accepts or accepted any haz-
ardous substances for transport to disposal or treat-
ment facilities, incineration vessels or sites selected
by such person, from which there is a release, or a
threatened release which causes the incurrence of
response costs, of a hazardous substance, shall be
liable for—
(A) all costs of removal or remedial action
incurred by the United States Government or a
State or an Indian tribe not inconsistent with
the national contingency plan;
(B) any other necessary costs of response
incurred by any other person consistent with the
national contingency plan;
I8a
(C) damages for injury to, destruction of,
or loss of natural resources, including the rea-
sonable costs of assessing such injury, destruc-
tion, or loss resulting from such a release; and
(D) the costs of any health assessment or
health effects study carried out under section
9604(i) of this title.
The amounts recoverable in an action under this
section shall include interest on the amounts recover-
able under subparagraphs (A) through (D). Such
interest shall accrue from the later of (i) the date
payment of a specified amount is demanded in writ-
ing, or (ii) the date of the expenditure concerned.
The rate of interest on the outstanding unpaid bal-
ance of the amounts recoverable under this section
oo shall be the same rate as is specified for interest on
investments of the Hazardous Substance Superfund
established under subchapter A of chapter 98 of
Title 26. For purposes of applying such amend-
ments to interest under this subsection, the term
“comparable maturity” shall be determined with ref-
erence to the date on which interest accruing under
this subsection commences.
§ 9613. Civil proceedings
(f) Contribution
(1) Contribution
Any person may seek contribution from any other
person who is liable or potentially liable under sec-
tion 9607(a) of this title, during or following any
civil action under section 9606 of this title or under
section 9607(a) of this title. Such claims shall be
brought in accordance with this section and the Fed-
eral Rules of Civil Procedure, and shall be governed
by Federal law. In resolving contribution claims, the
court may allocate response costs among liable
parties using such equitable factors as the court de-
termines are appropriate. Nothing in this subsection
aerate
19a
shall diminish the right of any person to bring an
action for contribution in the absence of a civil ac-
tion under section 9606 or section 9607 of this title.
(2) Settlement
| A person who has resolved its liability to the
| | United States or a State in an administrative or judi-
| cially approved settlement shall not be liable for
claims for contribution regarding matters addressed
in the settlement. Such settlement does not discharge
any of the other potentially liable persons unless its
terms so provide, but it reduces the potential liability
of the others by the amount of the settlement.
(3) Persons not party to settlement
(A) If the United States or a State has obtained
less than complete relief from a person who has
resolved its liability to the United States or the State
in an administrative or judicially approved settle-
ment, the United States or the State may bring an
action against any person who has not so resolved
its liability.
eat ua phthalate
(B) A person who has resolved its liability to the
United States or a State for some or all of a response
action or for some or all of the costs of such action
in an administrative or judicially approved settlement
may seek contribution from any person who is not
party to a settlement referred to in paragraph (2).
nie pl tes ah be
(C) In any action under this paragraph, the
rights of any person who has resolved its liability to
the United States or a State shall be subordinate to
the rights of the United States or the State. Any
contribution action brought under this paragraph
shall be governed by Federal Law.
(g) Period in which action may be brought
(1) Actions for natural resources damages
Except as provided in paragraphs (3) and ( 4), no
action may be commenced for damages (as defined
20a
in section 9601(6) of this title, unless that action is
commenced within 3 years after the later of the
following:
(A) The date of the discovery of the loss
and its connection with the release in question.
(B) The date on which regulations are pro-
mulgated under section 9651(c) of this title.
With respect to any facility listed on the National
Pritorities List (NPL), any Federal facility identified
under section 9620 of this title (relating to Federal
facilities), or any vessel or facility at which a re-
medial action under this chapter is otherwise sched-
uled, an action for damages under this chapter must
be commenced within 3 years after the completion
of the remedial action (excluding operation and
maintenance activities) in lieu of the dates referred
to in subparagraph (A) or (B). In no event may
an action for damages under this chapter with re-
spect to such a vessel or facility be commenced (1)
prior to 60 days after the Federal or State natural
resource trustee provides to the President and the
potentially responsible party a notice of intent to file
Suit, or (ii) before selection of the remedial action
if the President is diligently proceeding with a re-
medial investigation and feasibility study under sec-
tion 9604(b) of this title or section 9620 of this
title (relating to Federal facilities). The limitation
in the preceding sentence on commencing an action
before giving notice or before selection of the re-
medial action does not apply to actions filed on or
before October 17, 1986.
(2) Actions for recovery of costs
An initial action for recovery of the costs referred
to in section 9607 of this title must be commenced—
(A) for a removal action, within 3 years after
completion of the removal action, except that
et ee See ee
ee
a a ee ee ne
ie she NA aaNet SR col aicta )
alle a i dlp ha tes OD
Sania, “rid ancb ae!
2la
such cost recovery action must be brought within
6 years after a determination to grant a waiver
under section 9604(c)(1)(C) of this title for
continued response action; and
(B) for a remedial action, within 6 years
after initiation of physical on-site construction
of the remedial action, except that, if the re-
medial action is initiated within 3 years after
the completion of the removal action, costs in-
curred in the removal action may be recovered
in the cost recovery action brought under this
subparagraph.
In any such action described in this subsection, the
court shall enter a declaratory judgment on liability
for response costs or damages that will be binding
on any subsequent action or actions to recover fur-
ther response costs or damages. A subsequent action
or actions under section 9607 of this title for fur-
ther response costs at the vessel or facility may be
maintained at any time during the response action,
but must be commenced no later than 3 years after
the date of completion of all response action. Except
as otherwise provided in this paragraph, an action
may be commenced under section 9607 of this title
for recovery of costs at any time after such costs
have been incurred.
(3) Contribution
No action for contribution for any response costs
or damages may be commenced more than 3 years
after—
(A) the date of judgment in any action
under this chapter for recovery of such costs
or damages, or
(B) the date of an administrative order
under section 9622(g) of this title (relating to
de minimis settlements) or 9622(h) of this title
22a
(relating to cost recovery settlements) or entry
of a judicially approved settlement with respect
to such costs or damages.
(4) Subrogation
No action based on rights subrogated pursuant to
this section by reason of payment of a claim may be
commenced under this subchapter more than 3 years
after the date of payment of such claim.
(5) Actions to recover indemnification payments
Notwithstanding any other provision of this sub-
section, where a payment pursuant to an indemnifi-
cation agreement with a response action contractor
is made under section 9619 of this title, an action
under section 9607 of this title for recovery of such
indemnification payment from a potentially respon-
sible party may be brought at any time before the
expiration of 3 years from the date on which such
payment is made.
(6) Minors and incompetents
The time limitations contained herein shall not
begin to run—
(A) against a minor until the earlier of the
date when such minor reaches 18 years of age
or the date on which a legal representative is
duly appointed for such minor, or
(B) against an incompetent person until the
earlier of the date on which such incompetent’s
incompetency ends or the date on which a legal
representative is duly appointed for such incom-
petent.
ese
Se et Re ne aed
23a
APPENDIX B
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
Civil No. 92-0206-B
UNITED TECHNOLOGIES CORPORATION, et al.,
Plaintiffs,
Ve
BROWNING FErRIS IND., ef al.,
Defendants.
ORDER AFFIRMING THE RECOMMENDED
DECISION OF THE MAGISTRATE JUDGE
On May 27, 1993, the United States Magistrate Judge
issued his Recommended Decision regarding Defendants’
Motions for Summary Judgment. Plaintiffs filed their
Objection on June 14, 1993. Following a full briefing
of the issues, the Court held a hearing on August 10,
1993. The Court has reviewed the Magistrate Judge’s
Recommended Decision, together with the entire record,
and makes a de novo determination of all matters adjudi-
cated by the Magistrate Judge. In accordance with de
novo review, the Court MODIFIES the Magistrate Judge’s -
discussion of the factual background and augments the
Recommended Decision in light of the First Circuit’s
recent decision in In re Hemingway Transport, Inc., 993
F.2d 915 (1st Cir. 1993).
Plaintiffs’ Objection to the Recommended Decision
notes two instances of possible error in the Recommended
Decision’s discussion of the factual background. For
clarification purposes, the last sentence in the second para-
graph on page 2 of the Recommended Decision should
24a
be deleted and the first sentence of the paragraph should
be modified to read as follows:
On January 29, 1986, the United States filed a civil
action under Sections 106 and 107 of CERCLA
against Inmont Corporation [“INMONT”], — the
Town of Winthrop, Everett Savage and Glenda Sav-
age entitled United States v. Inmont Corp., et al.,
No. 86-0029-B (D. Maine).
Additionally, the first sentence in the second paragraph
on page 3 of the Recommended Decision should be de-
leted and the following sentences should be inserted in
licu thereof:
Plaintiff United Technologies Corporation acquired
Inmont in 1979. It subsequently sold its Inmont
stock to Plaintiff BASF Corporation in 1985. United
Technologies Corporation and BASF Corporation
filed this Complaint on October 16, 1992.
The Court notes the First Circuit’s recent decision in
In re Hemingway which addresses related CERCLA is-
sues in the context of the bankruptcy code. The Court
is saisfied that, while the First Circuit’s opinion is not
directly on point, it is consistent with the analysis in the
Recommended Decision.
[I]n the event the private-action plaintiff itself is
potentially “liable” to the EPA for response costs,
and thus is akin to a joint “tortfeasor,” section 9607
(a)(4)(B) serves as the pre-enforcement analog to
the “impleader” contribution action permitted under
section 9613(f).
In re Hemingway, 993 F.2d at 931 (emphasis in orig-
inal).
Accordingly, with the exception of the above modifica-
tions, the Court concurs with the recommendations of the
United States Magistrate Judge for the reasons set forth
in his Recommended Decision.
25a
It is therefore ORDERED as follows:
(1) the Recommended Decision of the Magistrate
Judge is ADOPTED as MODIFIED.
(2) the defendants’ motions for summary judgment
on Counts I, II and IV of the complaint are
GRANTED, and the plaintiffs’ pendent state law
claims are DISMISSED without prejudice.
s/ Morton A. Brody
Mor Ton A. Bropy
United States District Judge
Dated at Bangor, Maine this 11th day of August, 1993.
eee ae
264
APPENDIX C
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
Civil No. 92-0206-B
UNITED TECHNOLOGIES CORPORATION, ef al.,
Plaintiffs
Wa
BROWNING FERRIS IND., ef al.,
Defendants
RECOMMENDED DECISION ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT *
This five-count Complaint alleges various causes of
action under the Comprehensive Environmental Response,
Compensation and Liability Act [“CERCLA”], 42 U.S.C.
§ 9601 et seq., and state law. Defendants move for sum-
mary judgment on the grounds that the CERCLA claims
are statutorily time-barred. The pendent state claims,
they contend, must also be dismissed as no federal claims
would remain to place jurisdiction in this Court.
Plaintiffs adopt Defendants’ Statement of Material
Facts for purposes of this Motion. They argue, however,
that they are entitled to state causes of action under dif-
ferent sections of CERCLA, which provide different limi-
tations periods. While conceding that their claim for
contribution pursuant to CERCLA Section 113(g)(3),
1 Defendant Browning Ferris Industries filed its Motion for
Summary Judgment on March 18, 1993. All other Defendants have
since filed virtually identical motions, relying »n the same argu-
ments. For purposes of their resolution, they will be treated as
one Motion for Summary Judgment.
27a
Count IV of the Complaint, is barred by the applicable
Statute of limitations, they contend that their claims under
Section 107(a)(4)(B), Counts I and II, are proper and
timely and should be dismissed.
Discussion
Summary judgment is appropriate when the record
reflects “no genuine issues as to any material fact and
. . . the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c). For purposes of this
Motion for Summary Judgment, there are no genuine
issue of material fact. The Court is left only to determine
whether Defendants are entitled to judgment as a matter
of law.
Undisputed Factual Background *
On January 29, 1986, the United States, filed a civil
action under CERCLA against Inmont Corporation
[“INMONT”], the Town of Winthrop, Everett Savage
and Glenda Savage entitled United States v. Inmont Cor-
poration, et al., No. 86-0029-B (D. Maine). The com-
plaint alleged that Inmont and the other defendants were
jointly and severally liable under CERCLA for remedy-
ing the releases or threatened releases of hazardous sub-
stances at the Winthrop Landfill Superfund Site [“SITE”]
in Winthrop. The complaint also alleged that Inmont and
the other defendants were jointly and severally liable
under CERCLA for the costs the United States had in-
curred and would continue to incur for actions taken in
response to the release or threatened releases at the Site.
This cause of action arose under Section 107(a)(4)(B),
as do Plaintiffs’ Counts I and II.
On February 4, 1986, the complaint was consolidated
with a similar complaint regarding the Site filed by the
State of Maine against the same defendants under
CERCLA and state law entitled State of Maine v. Inmont
2 This section is taken to no small extent from Defendant Brown-
ing Ferris Industries’ Statement of Material Facts.
28a
Corporation, et al., No. 86-0031-B (D. Maine). On
March 23, 1986, the Court entered a consent decree
[“DECREE”] in the consolidated cases. Specifically, the
defendants agreed to undertake and complete work at the
Site under the Decree and the Remedial Action Work
Plan attached to the Decree. Inmont also agreed to pay,
and has paid, the United States and the State of Maine
for response costs that had been incurred by the United
States and the State with respect to the Site prior to entry
of the Decree.
Plaintiff United Technologies Corporation, parent cor-
poration of Plaintiff BASF Corporation, and Plaintiff
BASF, the successor of Inmont, filed this Complaint on
October 16, 1992. They allege they have taken response
actions at the Site and incurred response costs with re-
spect to the Site in implementing the Decree. In Counts
I and II, they seek to impose joint and several liability
on these Defendants pursuant to the cost recovery and
declaratory judgment provisions of Section 107(a)(4)
(B). In Count IV, they sought contribution pursuant to
Section 113(f), but now concede that their claim for
contribution is subject to a three-year statute of limita-
tions and is therefore time-barred.* The remaining issue
is whether these Plaintiffs’ sole remedy lies under Section
113; that is, whether despite Plaintiffs’ chosen nomencla-
ture, their claims in Counts I and II are really claims for
contribution, and are therefore equally untimely.
Legal Analysis
Plaintiffs argue that their two remaining CERCLA
claims are proper causes of action under Section 107.*
3 The applicable statute of limitations requires an action for
contribution be brought within three years from the date of any
consent decree. 42 U.S.C. § 9613(g) (3). The consent decree at
issue in this case was entered on March 23, 1986.
4 The applicable statute of limitations for Section 107 actions is
found in Section 118, which reads in pertinent part as follows:
29a
Specifically, they seek “recovery of costs” and request a
declaratory judgment that Defendants are liable for any
future costs which may be incurred. They rely on the
provision within Section 107 which provides in pertinent
part:
(4) any person who accepts or accepted any haz-
ardous substances for transport to disposal or treat-
ment facilities, incineration vessels or sites selected
by such person, from which there is a release, or a
threatened release which causes the incurrence of
response costs, of a hazardous substance, shall be
liable for—
(B) any other necessary costs of response in-
curred by any other persen consistent with the
national contingency plan;
42 U.S.C. § 9607(a).
Prior to the Superfund Amendment and Reauthoriza-
tion Act [“SARA”] of 1986, there was no express pro-
vision allowing a party found to be liable for response
costs to file a claim for contribution from other responsible
parties. The difficulty with the lack of an express pro-
vision for contribution was that:
a potentially liable party under section 107 faced
the prospect of being singled out as a defendant in
(2) Actions for recovery of costs
An initial action for recovery of the costs referred to in
section 9607 of this title must be commenced—
(B) for.a remedial action, within 6 years after initiation
of phylsical on-site construction of the remedial action, ...
In any such action described in this subsection, the court
shall enter a declaratory judgment on liability for response
costs or damages that will be binding on any subsequent action
or actions to recover further response costs or damages.
42 U.S.C. § 9613 (g).
30a
a government [section 107(a)(4)(a)] or private
cost recovery action without any apparent means of
fairly apportioning CERCLA costs awarded against
it to other persons liable for these costs under the
statute. The Courts responded to the inequity of
this situation, and its negative implications for en-
couraging private parties to undertake voluntary
CERCLA cleanups, by recognizing an implicit fed-
eral right to contribution under CERCLA. (citations
omitted). Congress ratified these efforts in 1986 by
amending CERCLA section 113 to expressly rec-
ognize a right of contribution under the statute.
County Line Inv. v. Tinney, 933 F.2d 1508, 1515-16
(10th Cir. 1991). The amendment provides that:
[a] person who has resolved its liability to the United
States or the State in an administrative or judicially
approved settlement shall not be liable for claims
for contribution regarding matters addressed in the
settlement. Such settlement does not discharge any
of the other potentially liable persons unless its
terms so provide, but it reduces the potential liability
of the others by the amout of the settlement.
42 US.C. § 9613(f£)(2) (emphasis added). Further:
[a] person who has resolved its liability to the United
States or a State for some or all of a response ac-
tion or for some or all of the costs of such action
in an administrative or judicially approved settlement
may seek contribution from any person who is not
party to a settlement referred to in paragraph (2).
42 U.S.C. § 9613(f) (3) (B).
Plaintiffs argue that the action for contribution cannot
be their sole remedy, as they would lose the right to hold
these Defendants jointly and severally liable, such lia-
bility being available only under Section 107. Eg., United
States v. Conservation Chemical, 619 F. Supp. 162
(W.D. Mo. 1985). They argue that such a result would
3la
leave the Government the only potential plaintiff under
Section 107. We disagree with Plaintiffs’ conclusion.°
The language of Section 113 clearly indicates that a
party who has already settled the issue of its own liability
with the Government, as is the case here, is thereafter
limited in its own future recovery from other potentially
responsible parties relative to rights available prior to
the settlement under Section 107. Such an interpretation
does not necessarily obliterate the private cost recovery
action set forth in Section 107(a)(4)(B), which may
yet be, perhaps appropriately, available to persons who
voluntarily embark on a response plan without waiting
for the Government to spur them into action. Compare,
Avnet, v. Allied-Signal, No. 91-0383B, 1992 U.S. Dist.
LEXIS 17009 (D.R.I. 1992) (suggesting, without decid-
ing, that plaintiffs who incur response costs without wait-
ing for government action may retain a right to recovery
under Section 107(a)(4)(B))* and United States vy.
Hardage, 1989 Haz. Waste Litig. Rep. (Andrews) 18307,
18314 (Dec. 4, 1989) (noting that cost recovery actions
provide incentives for “private parties to begin clean-up
activities on their own”) and United States v. Kramer,
757 F. Supp. 397, 416-17 (D.N.J. 1991) (section 107
actions are “an incentive for private parties to clean up
hazardous waste sites, to risk their own capital initially,
knowing that by then prevailing in a section 107 action,
they will be reimbursed perhaps in excess of what might
be shown in a section 113 action to have been their equi-
table share”) with Amoco Oil v. Borden, 889 F.2d 664
(Sth Cir. 1989) (action found to be one for contribution,
despite no formal determination of plaintiff’s liability).
5In so doing, we necessarily disagree as well with Defendants’
assertion that contribution is the only private party action avail-
able under CERCLA.
* This Report and Recommendation of United States Magistrate
Judge Timothy M. Boudewyne was adopted as to all substantive
issues by the United States District Court. Avnet v. Allied-Signal,
No. 91-0383B (D. R.I. October 30, 1992).
32a
These Plaintiffs, however, did not incur costs of their
own initiative. Rather, they waited until they were in-
volved as defendants in litigation with both the United
States and the State of Maine. In fact, some of the costs
they wish to recover are payments made to cover costs
incurred by the United States and the State. In our view,
they are therefore confined to “seek[ing] contribution from
any person who is not party to” their consent decree with
the United States and the State of Maine. 42 U.S.C.
§ 9613(f)(3)(B).
In this case, Plaintiffs’ liability has been resolved
through the consent decree entered in this Court on March
26, 1986. Their sole recourse following that resolution
was to bring an action under Section 113(g) for contribu-
tion from other potentially liable parties. They failed to
do so within the statutory time period, and their claims
are now barred.
Conclusion
Accordingly, I recommend that the Court GRANT De-
fendants’ Motion for Summary Judgment on Count IV
of Plaintiff's Complaint, as Plaintiffs concede it is barred
by the applicable statute of limitations. I further recom-
mend that the Court GRANT Defendants’ Motion for
Summary Judgment on Counts I and II of the Complaint,
as these claims are necessarily claims for contribution,
which are statutorily barred. Finally, I recommend Plain-
tiffs’ pendent state law claims be DISMISSED without
prejudice.
NOTICE
A party may file objections to those specified
portions of a magistrate judge’s report or pro-
posed findings or recommended decisions en-
tered pursuant to 28 U.S.C. § 636(b)(1)(B)
(1988) for which de novo review by the district
court is sought, together with a supporting mem-
orandum, within ten (10) days of being served
with a copy thereof. A responsive memoran-
33a
dum shall be filed within ten (10) days after the
filing of the objection.
Failure to file a timely objection shall consti-
tute a waiver of the right of de novo review by
‘ the district court and to appeal the district court’s
order.
/s/ Eugene W. Beaulieu
EUGENE W. BEAULIEU
United States Magistrate Judge
Dated in Bangor, Maine on May 27, 1993.
34a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2253
UNITED TECHNOLOGIES CORPORATION, et al.,
Plaintiffs, Appellants,
Vv.
BROWNING-FERRIS INDUSTRIES, INC., ef al.,
Defendants, Appellees.
ERRATA SHEET
The opinion of the court issued on August 19, 1994 is
corrected as follows:
On page 4, last line—delete citation
On page 5, line 11—change “in March, 1986” to “no
later than early 1987”
On page 5, lines 16, 17, 18—change sentence beginning
with “Here, .... ” to “Here, the court entered the con-
sent decree in March of 1986 and remedial construction
apparently started at the Site within one year of that
event.”
On page 19—line 13—change “five” to “six”
35a
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2253
UNITED TECHNOLOGIES AND BASF CorpPorATION,
Plaintiffs-A ppellants,
Vv.
BROWNING-FERRIS INDUSTRIES, INC., ef al.
Defendants-A ppellees.
BEFORE TORRUELLA, Chief Judge,
SELYA, CYR, BOUDIN AND STAHL, Circuit Judges
—
ORDER OF COURT
Entered: September 19, 1994 :
The panel of judges that rendered the decision in this
case having voted to deny the petition for rehearing and
the suggestion for the holding of a rehearing en banc hav-
ing been carefully considered by the judges of the Court
in regular active service and a majority of said judges not
having voted to order that the appeal be heard or reheard
by the Court en banc,
It is ordered that the petition for rehearing and the sug-
gestion for rehearing en banc be denied.
By the Court:
‘s/ Francis P. Scigliano
Clerk
36a
APPENDIX F
STATUTORY PROVISIONS
42 U.S.C. § 9607 Liability
[CERCLA § 107]
4 * * *
(b) Defenses
There shall be no liability under subsection (a) of this
section for a person otherwise ‘liable who can establish
by a preponderance of the evidence that the release or
threat of release of a hazardous substance and the dam-
ages resulting therefrom were caused solely by—
(1) an act of God;
(2) an act of war;
(3) an act or omission of a third party other
than an employee or agent of the defendant, or than
one whose act or omission occurs in connection with
a contractual relationship, existing directly or in-
directly, with the defendant (except where the sole
contractual arrangement arises from a published tariff
and acceptance for carriage by a common carrier by
rail), if the defendant establishes by a preponderance
of the evidence that (a) he exercised due care with
respect to the hazardous substance concerned, taking
into consideration the characteristics of such hazard-
ous substance, in light of all relevant facts and cir-
cumstances, and (b) he took precautions against
foreseeable acts or omissions of any such third party
and the consequences that could foreseeably result
from such acts or omissions; or
(4) any combination of the foregoing paragraphs.
(c) Determination of amounts
(1) Except as provided in paragraph (2) of this sub-
section, the liability under this section of an owner or
operator or other responsible person for each release of
37a
a hazardous substance or incident involving release of a
hazardous substance shall not exceed—
(A) for any vessel, other than an incineration
vessel, which carries any hazardous substance as
cargo or residue, $300 per gross ton, or $5,000,000,
whichever is greater;
(B) for any other vessel, other than an incinera-
tion vessel, $300 per gross ton, or $500,000, which-
ever is greater;
(C) for any motor vehicle, aircraft, pipeline (as
defined in the Hazardous Liquid Pipeline Safety Act
of 1979 [49 U.S.C. 2001 et seq.]), or rolling stock,
$50,000,000 or such lesser amount as the President
shall establish by regulation, but in no event less than
$5,000,000 (or, for releases of hazardous substances
as defined in section 9601(14)(A) of this title into
the navigable waters, $8,000,000). Such regulations
shall take into account the size, type, location, stor-
age, and handling capacity and other matters relating
to the likelihood of release in each such class and
to the economic impact of such limits on each such
Class; or
(D) for any incineration vessel or any facility
other than those specified in subparagraph (C) of
this paragraph, the total of all costs of response plus
$50,000,000 for any damages under this subchapter.
(2) Notwithstanding the limitations in Paragraph (1)
of this subsection, the liability of an owner or operator
or other responsible person under this section shall be
the full and total costs of response and damages, if (A) (i)
the release or threat of release of a hazardous substance
was the result of willful misconduct or willful negligence
within the privity or knowledge of such person, or (ii)
the primary cause of the release was a violation (within
the privity or knowledge of such person) of applicable
safety, construction, or operating standards or regulations;
38a
or (B) such person fails or refuses to provide all reason-
able cooperation and assistance requested by a responsible
public official in connection with response activities under
the national contingency plan with respect to regulated
carriers subject to the provisions of Title 49 or vessels
subject to the provisions of Title 33, 46, or 46 Appendix,
subparagraph (A) (ii) of this paragraph shall be deemed
to refer to Federal standards or regulations.
(3) If any person who is liable for a release or threat
of release of a hazardous substance fails without sufficient
cause to properly provide removal or remedial action upon
order of the President pursuant to section 9604 or 9606
of this title, such person may be liable to the United
States for punitive damages in an amount at least equal
to, and not more than three times, the amount of any
costs incurred by the Fund as a result of such failure to
take -proper action. [he President is authorized to com-
mence a civil action against any such person to recover
the punitive damages, which shall be in addition to any
costs recovered from such person pursuant to section
9612(c) of this title. Any moneys received by the
United States pursuant to this subsection shall be de-
posited in the Fund.
* * * *
(e) Indemnification, hold harmless, etc., agreements or
conveyances; subrogation rights
(1) No indemnification, hold harmless, or similar agree-
ment or conveyance shall be effective to transfer from
the owner or operator of any vessel or facility or from
any person who may be liable for a release or threat of
release under this section, to any other person the liability
imposed under this section. Nothing in this subsection
shall bar any agreement to insure, hold harmless, or in-
demnify a party to such agreement for any liability under
this section.
39a
(2) Nothing in this subchapter, including the provisions
of paragraph (1) of this subsection, shall bar a cause of
action that an owner or operator or any other person
subject to liability under this section, or a guarantor, has
or would have, by reason of subrogation or otherwise
against any person.
42 U.S.C. § 9622 Settlements
[CERCLA § 122]
(d) Enforcement
(1) Cleanup agreements
(A) Consent decree
Whenever the President enters into an agree-
ment under this section with any potentially re-
sponsible party with respect to remedial action
under section 9606 of this title, following ap-
proval of the agreement by the Attorney Gen-
eral, except as otherwise provided in the case
of certain administrative settlements referred to
in subsection (g) of this section, the agreement
shall be entered in the appropriate United States
district court as a consent decree. The Presi-
dent need not make any finding regarding an
imminent and substantial endangerment to the
public health or the environment in connection
with any such agreement or consent decree.
(B) Effect
The entry of any consent decree under this
subsection shall not be construed to be an ac-
knowledgment by the parties that the release
or threatened release concerned constitutes an
imminent and substantial endangerment to the
public health or welfare or the environment.
(2)
40a
Except as otherwise provided in the Federal
Rules of Evidence, the participation by any
party in the process under this section shall not
be considered an admission of liability for any
purpose, and the fact of such participation shall
not be admissible in any judicial or administra-
tive proceeding, including a subsequent proceed-
ing under this section.
(C) Structure
The President may fashion a consent decree
so that the entering of such decree and compli-
ance with such decree or with any determina-
tion or agreement mee pursuant to this section
shall not be considered an admission of liability
for any purpose.
Public participation
(A) Filing of proposed judgment
At least 30 days before a final judgment is
entered under paragraph (1), the proposed
judgment shall be filed with the court.
‘(B) Opportunity for comment
The Attorney General shall provide an op-
portunity to persons who are not named as par-
ties to the action to comment on the proposed
judgment before its entry by the court as a final
judgment. The Attorney General shall con-
sider, and file with the court, any written com-
ments, views, or allegations relating to the pro-
posed judgment. The Attorney General may
withdraw or withhold its consent to the pro-
posed judgment if the comments, views, and
allegations concerning the judgment disclose
facts or considerations which indicate that the
proposed judgment is inappropriate, improper,
or inadequate.
(g)
4la
(3) 9604(b) agreements
Whenever the President enters into an agreement
under this section with any potentially responsible
party with respect to action under section 9604(b)
of this title, the President shall issue an order or
enter into a decree setting forth the obligations of
such party. The United States district court for the
district in which the release or threatened release
occurs may enforce such order or decree.
* ot * -
De minimis settlements
(1) Expedited final settlement
Whenever practicable and in the public interest,
as determined by the President, the President shall
as promptly as possible reach a final settlement with
a potentially responsible party in an administrative
or civil action under section 9606 or 9607 of this
title if such settlement involves only a minor portion
of the response costs at the facility concerned and,
in the judgment of the President, the conditions in
either of the following subparagraph (A) or (B)
are met:
(A) Both of the following are minimal in
comparison to other hazardous substances at
the facility:
(i) The amount of the hazardous sub-
stances contributed by that party to the
facility.
(ii) The toxic or other hazardous effects
of the substances contributed by that party
to the facility.
(B) The potentially responsible party—
(i) is the owner of the real property on
or in which the facility is located;
42a
(ii) did not conduct or permit the gen-
eration, transportation, storage, treatment,
or disposal of any hazardous substance at
the facility; and
(iii) did not contribute to the release or
threat of release of a hazardous substance
at the facility through any action or omis-
sion.
This subparagraph (B) does not apply if the
potentially responsible party purchased the real
property with actual or constructive knowledge
that the property was used for the generation,
transportation, storage, treatment, or disposal of
any hazardous substance.
(2) Covenant not to sue
The President may provide a covenant not to sue
with respect to the facility concerned to any party
who has entered into a settlement under this sub-
section unless such a covenant would be inconsistent
with the public interest as determined under sub-
section (f) of this section.
(3) Expedited agreement
The President shall reach any such settlement or
grant any such covenant not to sue as soon as pos-
sible after the President has available the informa-
tion necessary to reach such a settlement or grant
such a covenant.
(4) Consent decree or administrative order
A settlement under this subsection shall be en-
tered as a consent decree or embodied in an admin-
istraitve order setting forth the terms of the settle-
ment. In the case of any facility where the total
response costs exceed $500,000 (excluding interest),
if the settlement is embodied as an administrative
(h)
43a
order, the order may be issued only with the prior
written approval of the Attorney General. If the
Attorney General or his designee has not approved
or disapproved the order within 30 days of this re-
ferral, the order shall be deemed to be approved
unless the Attorney General and the Administrator
have agreed to extend the time. The district court
for the district in which the release or threatened
release occurs may enforce any such administrative
order.
(5) Effect of agreement
A party who has resolved its liability to the
United States under this subsection shall not be
liable for claims for contribution regarding matters
addressed in the settlement. Such settlement does
not discharge any of the other responsible parties
unless its terms so provide, but it reduces the poten-
tial liability of the others by the amount of the settle-
ment.
(6) Settlements with other potentially responsible
parties
Nothing in this subsection shall be construed to
affect the authority of the President to reach settle-
ments with other potentially responsible parties
under this chapter.
Cost recovery settlement authority
(1) Authority to settle
The head of any department or agency with au-
thority to undertake a response action under this
chapter pursuant to the national contingency plan
may consider, compromise, and settle a claim under
section 9607 of this title for costs incurred by the
United States Government if the claim has not been
referred to the Department of Justice for further
44a
action. In the case of any facility where the total
response costs exceed $500,000 (excluding interest),
any claim referred to in the preceding sentence may
be compromised and settled only with the prior writ-
ten approval of the Attorney General.
(2) Use of arbitration
Arbitration in accordance with regulations pro-
mulgated under this subsection may be used as a
method of settling claims of the United States where
the total response costs for the facility concerned do
not exceed $500,000 (excluding interest). After
consultation with the Attorney General, the depart-
ment or agency head may establish and publish reg-
ulations for the use of arbitration or settlement
under this subsection.
(3) Recovery of claims
If any person fails to pay a claim that has been
settled under this subsection, the department or
agency head shall request the Attorney General to
bring a civil action in an appropriate district court
to recover the amount of such claim, plus costs,
attorneys’ fees, and interest from the date of the
settlement. In such an action, the terms of the set-
tlement shall not be subject to review.
(4) Claims for contribution
A person who has resolved its liability to the
United States under this subsection shall not be
liable for claims for contribution regarding matters
addressed in the settlement. Such settlement shall
not discharge any of the other potentially liable per-
sons unless its terms so provide, but it reduces the
potential liability of the others by the amount of the
settlement.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.