Petition for Writ of Certiorari — Browning-Ferris, Inc. v. Sun Co.

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ev 99 3 DEC 1 2 1997

No. 97-— cece OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

BROWNING-FERRIS, INC., ef al.,

Petitioners,

SUN COMPANY, INC., et al.,

Respondents.

Petition for Writ of © -~tiorari to the

United States Couri of Appeals

for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

TERENCE BRENNAN CARTER G. PHILLIPS *

LAW OFFICE OF STEPHEN F.. SMITH

TERENCE BRENNAN SIDLEY & AUSTIN

320 South Boston Avenue 1722 Eye Street, N.W.

Suite 825 Washington, D.C. 20006

Tulsa, OK 74103 (202) 736-8000

(918) 584-4333

Attorneys for Petitioners

December 12, 1997 * Counsel of Record

WILSON - EPEs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether an action for contribution brought by and

against poteritially responsible parties for an allocation of

liability for response costs under section 113(f) of the

Comprehensive Environmental Response, Compensation,

and Liability Act (“CERCLA”), as amended, 42 U.S.C.

§ 9613(f)(1), is subject to the limitations period for a

“cost recovery” action under section 107(a)(4)(B) (42

U.S.C. § 9613(g)(2)) or the shorter statute of limita-

tions for contribution actions under section 113(f) (42

U.S.C. § 9613(g)(3)), and if CERCLA § 9613(g)(3) con-

trols, what constitutes the appropriate limitations period

in cases where cleanup costs are incurred in response to

administrative orders other than those enumerated therein.

STATEMENT REQUIRED BY RULE 29.6

Pursuant to Rule 29.6 of the Rules of this Court, peti-

tioners state the following:

Petitioner Browning-Ferris, Inc. (“BFI’’), a Dela-

ware corporation, is a wholly owned subsidiary of

BFI Waste Systems of North America, Inc. Petitioner

BFI has no subsidiaries.

Petitioner Beverage Products Corp. (“BPC”), an

Oklahoma corporation, is a wholly owned subsidiary

of Midland Bottling Co. (“Midland”). Midland is a

wholly owned subsidiary of Frito-Lay, Inc. Frito-Lay

is a wholly owned subsidiary of Recot, Inc. Recot is

a wholly owned subsidiary of PepsiCo, Inc. Petitioner

BPC has no subsidiaries.

Petitioner National Tank Co. (“National”), a

Delaware corporation, is a wholly owned subsidiary

of NATCO Holding, Inc. NATCO is a wholly

owned subsidiary of Cummings Point Industries, Inc.

Petitioner National has one non-wholly owned sub-

sidiary, NATCO Japan Company, Ltd.

Petitioner Atlantic Richfield Company (“ARCO”),

a Pennsylvania corporation, has no parent corpora-

tions. ARCO holds a controlling equity interest in

the following corporate entities: ARCO Chemical

Company; Canyon Fuel Co., LLC; Carson Cogener-

ation Co.; CH-Twenty, Inc., Logan Aluminum Inc.;

and Vastar Resources Inc. Petitioner ARCO also

holds equity interests in each of the corporate enti-

ties (many of which are wholly owned subsidiaries )

listed in the Appendix to this Petition for Certiorari,

beginning at Pet. App. 49a.

Petitioner Borg Industrial Group Inc., an Okla-

homa corporation, d/b/a American Container Serv-

ices has no corporate parents or subsidiaries.

iii

Petitioner Waste Management of Oklahoma, Inc.

(“WMOI”), an Oklahoma corporation, is a wholly

owned subsidiary of Waste Management of North

America, Inc. (“WMNAI”). WMNAI is a wholly

owned subsidiary of Waste Management, Inc. Peti-

tioner WMOIT has no subsidiaries.

PARTIES

The following parties to the decision below, all of whom

were named as defendants in this action, appear as peti-

tioners in this Court: Browning-Ferris, Inc.; Beverage

Products Corp.; National Tank Co.; The City of Sand

Springs, Oklahoma; Atlantic Richfield Company; Borg

Industrial Group Inc. d/b/a American Container Serv-

ices; and Waste Management of Oklahoma, Inc.

The plaintiffs who brought this action, Sun Company,

Inc. (R&M) and Texaco Inc., appear as respondents in

this Court.

The following parties to the decision below, all of whom

were named as defendants in this action, appear as

nominal respondents in this Court pursuant to Rule 12.6

of the Rules of this Court: Ark Wrecking Company of

Oklahoma, Inc.; Housing Authority for the City of Tulsa,

Oklahoma; Pedrick Labs; John Doe d/b/a Pedrick Labs;

Art Weedin; Cowen Construction, Inc.; Peevy Construc-

tion Co. Inc.; Monte Shipley; Sun Chemical Corporation;

Ozark Mahoning Company; Public Service Company of

Oklahoma; Bancoff Oil Company; Consolidated Cleaning

Service Co.; Charles Forhan d/b/a D&W Exterminating;

Oil Capital Trash Services, Inc.; Steve Richey d/b/a

Richey Refuse Service; Estate of John D. Shipley, De-

ceased; Shipley Refuse; Robert E. Sparks d/b/a Tulsa

Industrial Services; Union Carbide Corp.; Bank IV Okla-

homa, N.A.; Stan Doyle; Flemings Roofing and Sheet

Metal Co.; Grant Gill d/b/a Gill Sanitation; Insulation

Services, Inc.; WRG Construction Company, Inc.; W.R.

Grimshaw d/b/a WRG Construction Company, Inc.;

Tulsa County Public Facilities Authority; James P. Evatt;

F&G Excavation; John Doe d/b/a F&G Excavation;

Nellie Farris; First Tower Construction; John Doe d/b/a

First Tower Construction; Marvin R. Hall; Sm Roof;

John Doe d/b/a Sm Roof; Estate of Ross Scoggins, Sr.,

Deceased; Tandy Industries, Inc.; W&D Building; John

Doe d/b/a W&D Building; Wade Trash; John Doe

d/b/a Wade Trash; Compass Industries, Inc.; Estate of

Jack Dyer, Deceased; Roy L. Farris; Noland Construction

Co.; John Doe d/b/a Noland Construction Co.; Mannon

Trucking; John Doe d/b/a Mannon Trucking; Mobile

Waste Controls; John Doe d/b/a Mobile Waste Controls:

Tulsa Tank Cleaning; John Doe d/b/a Tulsa Tank Clean-

ing; Apartment Container Service, Inc.; Carnes Brothers

Construction Company; Crain Displays & Exhibits, Inc.;

Dow Chemical Company d/b/a Dow Industrial Service;

Empire Roofing & Insulation Company; Tom Farris d/b/a

Gene’s Septic Tank Service; Odean Garrison; Langston

Contractors, Inc.; Petroleum Contractors Corporation;

Vacuum & Pressure Tank Truck Services, Inc.; Glenn E.

Wynn, Jr.; Anchor Paint Mfg. Co.; Amron, Inc.; Tulsa

Construction & Management, Inc.; Pet Care Cemetary;

John Doe d/b/a Pet Care Cemetary; J.B. Stallings d/b/a

Stallings Construction Company; Brierly Plumbing Tech-

nologies; Roto-Rooter Sewer Service; O.K. Tank Trucks,

Inc.; American Septic Tank; John W. Diffee, Deceased,

d/b/a Diffee Trash Services; and Walter C. Deppe,

Deceased.

TABLE OF CONTENTS

Page

ap tM) |): SR gee f i

STATEMENT REQUIRED BY RULE 239.6 ................ ii

ee ei ieraatabibinlecteidha a lah lassie clinics tbarediichestaiideésanbociniaeenes iv

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nae erase ocean ceueteeseniaiotonn 2

RELEVANT STATUTORY PROVISIONS .................. 2

STATEMENT OF THE CASE ........0....2....00.:.ccccccc0000-. 2

StatwGOry BAGRSTOUNG q.........-..2.0-ecccceccneccccecescecsserscceese 4

A A RE Ce 7

Procedural Background ........................... pe a 8

DECISION OF THE COURT OF APPEALS ................ 10

REASONS FOR GRANTING THE PETITION .......... 11

I. THE COURT OF APPEALS’ RULING THAT

A CONTRIBUTION ACTION IS A COST RE-

COVERY ACTION DEEPENS A SPLIT OF

AUTHORITY ON THE RELATIONSHIP BE-

TWEEN THESE TYPES OF ACTIONS AND

THE PROPER LIMITATIONS PERIOD FOR

A CONTRIBUTION ACTION FOLLOWING A

SECTION 106 ORDER BY THE EPA .............. 12

A. The Tenth Circuit Has Deepened A Conflict

Among The Circuits On Whether Contribu-

tion Actions And Cost Recovery Actions Are

Distinct Or Overlapping Remedies, A Ques-

tion That Controls The Selection Of The

Proper Statute Of Limitations In This

EN een camiessekenecanocs 12

viii

TABLE OF CONTENTS—Continued

Page

B. The Ruling Below Has Created A Three-Way

Split Of Authority On The Limitations

Period Applicable To Contribution Suits

Brought By Liable Parties Who Conduct

Cleanups In Response To Section 106 Or-

GEE Si chnchionieceiae eats i ke 18

Il. THE TENTH CIRCUIT’S DECISION EX-

TENDING THE COST RECOVERY STATUTE

OF LIMITATIONS TO CONTRIBUTION AC-

TIONS FOLLOWING SECTION 106 ORDERS

CONFLICTS WITH CONTROLLING DECI-

ECECes GF GE NREe MUTE, seicnretictcticeinttiarninsiinenstes 22

A. The Tenth Circuit Has Resurrected The Pre-

SARA Federal Common Law Right To Con-

tribution Under CERCLA Even Though The

SARA Amendments To CERCLA Explicitly

Address—And Thus, Under This Court’s

Precedents, Displace—That Aspect Of Fed-

SN I Te ec ieves) Kasih eke eee 22

B. Because CERCLA Faiis To Specify A Trig-

gering Event For The Three-Year Limita-

tions Period Congress Enacted For All

Contribution Actions, This Court’s Prece-

dents Required The Court Below To Borrow

The Most Closely Analogous Limitations

PersoG From Genes LOW .......<........................ : 26

COREA HeetacidientsbsiebiliaiditiataAvipicitandinnicasestinascercinetenns 29

TABLE OF AUTHORITIES

Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761

CO GO I etiacdctacceshiesndieiiahineinenninldiiac dadenedicernn 2

Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th

CO an alc seacliellls Eireabivedaiceere 2

Anspec Co. Vv. Johnson Controls, Ine., 922 F.2d

6 Be A, SR ere ee 27

TABLE OF AUTHORITIES—Continued

CASES Page

Atherton v. FDIC, 117 S. Ct. 666 (1997) ........... bas 27

City of Milwaukee v. Illinois, 451 U.S. 304 (1981).. 28, 24,

25, 27

Gould, Inc. v. A&M Battery and Tire Serv., 901

F. Supp. 906 (M.D. Pa. 1995) .........0..0000000000. 20, 21

Key Tronic Corp. v. United States, 511 U.S. 809

| FREI RES aR EO. oe a ee 23, 25, 27

Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454

I OE ate 4, 5, 22, 23

Meghrig v. KFC Western, Inc., 116 S. Ct. 1251

init ci Saas teaiiidcamenedee ts suka ee ee)? 4

New Castle County v. Halliburton NUS Corp.,

111 F.3d 1116 (8d Cir. 1997) 2.000000. 2, 6,18

New Castle County v. Halliburton NUS Corp.,

903 F. Supp. 771 (D. Del. 1995), aff’d, 111 F.3d

ek re eee oy ee 25

North Star Steel Co. v. Thomas, 515 U.S. 29

8 SIT teers ENS, el 26, 27

Northwest Airlines, Inc. v. Transport Workers

Union, 451 U.S. 77 (1981) «0.000000. 5, 24, 25, 27

OHM Remediation Servs. v. Evans Cooperage Co.,

116 F.8d 1574 (5th Cir. 1997) ....0...00 oo. 4, 16, 22

O’Melveney & Myers v. FDIC, 512 U.S. 79 (1994).. 24, 27

Pinal Creek Group v. Newmont Mining Corp.,

118 F.3d 1298 (9th Cir. 1997), petition for cert.

filed, 66 U.S.L.W. 3364 (U.S. Nov. 10, 1997)

I i eT 2,17

In re Reading Co., 115 F.8d 1111 (3d Cir. 1997) ....passim

Redwing Carriers, Inc. v. Saraland Apartments,

94 F.3d 1489 (11th Cir. 1996) 2, 4, 17, 27

Reed v. United Transp. Union, 488 U.S. 319

ME dered ciiaenetiac sececere dacs... BERN lind UP ene OIE 26

Reichhold Chems., Inc. v. Textron, Inc., 888 F.

Supp. 1116 (N.D. Fla. 1995) ........... ‘idles idea 20, 21

Robertson v. Wegmann, 436 U.S. 584 (1978)... 28

Rumpke of Indiana, Inc. v. Cummins Engine Co.,

gee GS Ek .....--18, 19, 21, 26

Texas Indus., Inc. v. Radcliff Materials, Inc., 451

Ts RR SSE, SEED OAR I ean emg 5

TABLE OF AUTHORITIES—Continued

Page

United States v. Colorado & E. R.R. Co., 50 F.3d

i Bs FREER ©: Se eee 2

United Techs. Corp. Vv. Browning-Ferris Indus.,

Inc., 33 F.3d 96 (1st Cir. 1994), cert. denied,

Bt Me sy TR eee passim

Wilson Vv. Garcia, 471 U.S. 261 (1985) _............ 20, 26, 27

FEDERAL STATUTES & REGULATIONS

I a tn 2

Comprehensive Environmental Response, Com-

pensation, and Liability Act (“CERCLA”),

ee icin ecceenmestnernennn 4

a a a 7

EEE Ra a ar 7

EE TE Se eee on: eee ee ee 8

SAR oe Sli le at 8

ES ER ae ee coe OR EO 20

IEE ae nied > Be

ERE ea eS Taam 4

SSS ere eee 2, 6,18

§ 9613 (g) (2) .............. MNOS Ae SER OTAE Ss passim

i ld 3, 6, 11

Ee ee ae passim

ce ee | Ene 7 9

ins 20

Superfund Amendments and Reauthorization Act

of 1986 (“SARA”), Pub. L. No. 99-499, 100

Ns Se cbeansinsbevinshagtnescteneanns 5

SRE a oe re SET 7

STATE STATUTES

ie ataeenesstoens 28

LEGISLATIVE HISTORY AND OTHER

AUTHORITIES

H.R. Rep. No. 99-253(1) (1986), reprinted in

Se ee oi... 14, 22

Exec. Ord. No. 12,580, 52 Fed. Reg. 2,923 (Jan. 23,

IY cere Soi SechaAMiccrtcncketatecentchactecelbesaiscciasntssac 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97————

BROWNING-FERRIS, INC., ef al.,

» Petitioners,

SUN CoMPANY, INC., et al.,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully request that this Court grant

certiorari to review the decision of the U.S. Court of

Appeals for the Tenth Circuit in this case.

OPINIONS BELOW

The court of appeals’ opinion is reported at 124 F.3d

1127 and is reproduced in the Appendix to this Petition

for Certiorari (“Pet. App.”), beginning at page la. The

decision of the U.S. District Court for the Northern Dis-

trict of Oklahoma, entering Summary judgment in favor

of petitioners on statute of limitations grounds as to

plaintiff-respondents’ contribution claims under section

113(f) of the Comprehensive Environmental Response,

Compensation, and Liability Act ( “CERCLA”), as

amended, 42 U.S.C. § 9613(f)(1), is published at 919

F. Supp. 1523 and is reproduced in the Appendix begin-

ning at Pet. App. 16a. The district court’s order denying

reconsideration is published at 926 F. Supp. 170 and is

reproduced in the Appendix beginning at Pet. App. 33a.

ieee

JURISDICTION

The court of appeals entered judgment on August 14,

1997. On November 4, 1997, Justice Breyer, as Circuit

Justice for the Tenth Circuit, granted petitioners’ applica-

tion for an extension of time in which to seek certiorari,

to and including December 12, 1997. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

The statutes involved in this case are CERCLA

§§ 107(a) and 113(f), 42 U.S.C. §§ 9607(a), 9613(f).

These provisions are reproduced in the Appendix, begin-

ning at Pet. App. 38a.

STATEMENT OF THE CASE

This case presents an important issue that arises fre- ;

quently in CERCLA litigation—namely, the proper rela-

tionship between cost recovery actions under CERCLA /

§ 107(a), 42 U.S.C. § 9607(a), and contribution actions

under CERCLA § 113(f)(1), 42 U.S.C. § 9613(f) (1).

All Circuits to consider the question (including the Tenth)

have ruled that actions by and between potentially re- .

sponsible parties (“PRPs”) who have contributed to the

release of hazardous substances at a facility are, as a

matter of law, contribution actions subject to section

113(f), and thus such parties may not bring a section

107(a) action to shift their costs of responding to a

hazardous waste site onto other PRPs.’ Because, under

1 See Pinal Creek Group v. Newmont Mining Corp., 118 F.3d

1298, 1306 (9th Cir. 1997), petition for cert. filed, 66 U.S.L.W.

3364 (U.S. Nov. 10, 1997) (No. 97-795); New Castle County v.

Halliburton NUS Corp., 111 F.3d 1116, 1120 (3d Cir. 1997);

Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496

(11th Cir. 1996) ; United States v. Colorado & E. R.R. Co., 50 F.3d

1530, 1536 (10th Cir. 1995); United Techs. Corp. v. Browning-

Ferris Indus., Inc., 33 F.3d 96, 99 (1st Cir. 1994), cert. denied,

513 U.S. 1183 (1995) ; Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d

761, 764 (7th Cir. 1994); Amoco Oil Co. v. Borden, Inc., 889 F.2d ;

664, 672 (5th Cir. 1989); see generally Halliburton, 111 F.3d at

1120 (noting that “[e]very court of appeals that has examined this

issue has come to the same conclusion”’).

this weigh: of authority, an action by and between such

PRPs is necessarily an action for contribution, the logical

conclusion, supported by the decisions of several other Cir-

cuits and the CERCLA text itself, would be that such an

action is governed by the three-year statute of limitations

for contribution actions, 42 U.S.C. § 9613(g) (3), not the

six-year statute of limitations for cost recovery actions,

42 U.S.C. §9613(g)(2)(B).

Incredibly, however, the Tenth Circuit in this case,

following reasoning adopted only by the Ninth Circuit,

reached precisely the opposite result. The court below

ruled that even though an action by and between PRPs

cannot be brought under CERCLA § 107(a), the six-year

Statute of limitations for section 107(a) actions—not the

considerably shorter statute of limitations enacted by

Congress for contribution actions—applies to contribu-

tion actions seeking an allocation of costs incurred in

response to orders other than those enumerated in section

9613(g)(3), 42 U.S.C. § 9613(g)(3). Pet. App. 12a-13a.

In reaching this schizophrenic result, in which contri-

bution suits are regarded as cost recovery actions for one

purpose (statute of limitations) but not others (e.g.,

burden of proof and measure of recovery), the Tenth

Circuit expressly rejected the Third Circuit’s ruling in

In re Reading Co., 115 F.3d 1111 (1997), that con-

tribution and cost recovery actions are mutually exclu-

sive and non-overlapping (Pet. App. 14a), a view also

held by the First, Fifth and Eleventh Circuits. By en-

grafting the cost recovery statute of limitations upon con-

tribution actions to allocate the costs of cleanups under-

taken in response to agency orders not enumerated in

section 9613(g)(3), the court of appeals added to the

confusion in the lower courts as to the proper limitations

period for contribution actions involving such cleanups.

This state of confusion among the lower courts on a

matter as fundamental as the proper statute of limitations

warrants this Court’s review.

Statutory Background

When it enacted CERCLA, 42 U.S.C. § 9601 ef seq.,

in 1980, Congress intended to achieve two broad goals.

These were to facilitate the prompt cleanup of hazardous

waste sites across the Nation and to shift the cost of

remediation at those sites to those responsible in some way

for the discharge of hazardous substances into the environ-

ment. See Meghrig v. KFC Western, Inc., 116 S. Ct.

1251, 1254 (1996). CERCLA § 107(a) identifies four

categories of “covered persons” (called PRPs) who, ab-

sent the protection of one of the narrow defenses set

forth in CERCLA § 107(b), 42 U.S.C. § 9607(b), “shall

be liable” for costs resulting from containing and cleaning

up toxic waste sites.? Id. § 9607(a).

As courts have noted, “Congress passed CERCLA in

great haste and in the process left many holes in its

framework for courts to fill in.” Redwing Carriers, Inc. v.

Saraland Apartments, 94 F.3d 1489, 1499 (11th Cir.

1996). Two of the more significant omissions from the

statute as originally enacted were a right to contribution

and a statute of limitations for cost recovery claims. The

contribution issue became particularly important because

the federal courts ruled that the specie of liability created

by CERCLA was not only strict, but also joint and several.

See, e.g., OHM Remediation Servs. v. Evans Cooperage

Co., 116 F.3d 1574, 1581 (5th Cir. 1997). Courts re-

sponded to the inequity of joint and several liability by

“find[ing] an implicit, federal common law right to con-

tribution.” Jd.; see generally Mardan Corp. v. C.G.C.

2 These PRPs are: (1) the current “owner and operator” of a

vessel or a facility; (2) any person who “owned or operated” any

facility at the time hazardous substances were disposed there; (3)

any person who “arranged for disposal or treatment, or arranged

with a transporter for transport for disposal or treatment, of haz-

ardous substances” at a facility or incineration vessel containing

hazardous substances; and (4) any person who “accepts or accepted

any hazardous substances for transport to disposal or treatment

facilities, incineration vessels or sites selected by such person, from

which there is a release, or a threatened release ..., of a hazardous

substance.” 42 U.S.C. § 9607(a).

rai ke. =

ee ee, Oe ee a

Music, Ltd., 804 F.2d 1454, 1457 n.3 (9th Cir. 1986)

(citing cases). Despite these precedents, the existence of

a right to contribution under CERCLA remained uncertain

given two rulings from this Court in the early 1980s that

refused to create implied rights of action for contribution

under other federal statutes. See Texas Indus., Inc. v.

Radcliff Materials, Inc., 451 U.S. 630 (1981) (antitrust

laws); Northwest Airlines, Inc. v. Transport Workers

Union, 451 U.S. 77 (1981) (Title VII/Equal Pay Act).

With the enactment of the Superfund Amendments and

Reauthorization Act of 1986 (“SARA”), Pub. L. No.

99-499, 100 Stat. 1613, Congress supplied both the cause

of action for contribution and the statute of limitations

omitted from the original legislation. SARA added, for

the first time, an express right of action for a PRP who

believes it has paid more than its fair share of the response

costs stemming from a hazardous waste cleanup to seek

contribution from other PRPs. CERCLA § 113(f) pro-

vides, in pertinent part, as follows:

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... . In resolving con-

tribution claims, the court may allocate response costs

among liable parties using such equitable factors as

the court determines are appropriate. Nothing in this

subsection shall diminish the right of any person to

bring an action for contribution in the absence of a

civil action under section 9606 or section 9607 of

this title.

42 US.C. § 9613(f)(1). “It was only upon passage of

section 113 that [PRPs] had a clear, statutory right to

seek an equitable division of clean-up costs.” New Castle

County Vv. Halliburton NUS Corp., 111 F.3d 1116, 1122

(3d Cir. 1997).

In the wake of SARA, therefore, there are two different

types of legal actions by which some or all of the costs

associated with cleanups can be recovered: cost recovery

actions under CERCLA § 107(a) and comntribution actions

under CERCLA § 113(f)(1). Although Congress did

not define the term “contribution” in SARA, courts have

uniformly recognized that Congress intemded the term to

have its “generally accepted legal meanimg,” which 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.’” United Techs. Corp. v.

Browning-Ferris Indus., Inc., 33 F.3d 96, 99 (1st Cir.

1994), cert. denied, 513 U.S. 1183 (1995).

In an effort not to repeat its mistake of the past, Con-

gress provided a statute of limitations for the new statutory

tight of contribution, CERCLA § 113(g)(3), 42 U.S.C.

§ 9613(g)(3). Section 113(g)(3) prowides as follows:

No action for contribution for any response costs or

damages may be commenced more than 3 years

after—

(A) the date of judgment in amy action under

this chapter for recovery of such costs or damages,

(B) the date of an administrative order under

section 9622(g) of this title (relatimg to de minimis

settlements) or 9622(h) of this title (relating to

cost recovery settlements) or entry of a judicially

approved settlement with respect to such costs or

, damages.

Finally, SARA added CERCLA § 9613(g)(2), a bi-

nary statute of limitations for “[a]n initial action for

recovery of the costs referred to in section 9607.” Where,

as here, those costs were incurred in connection with a

“remedial action,” as opposed to a “removal action,” the

lawsuit generally must be brought “within 6 years after

initiation of physical on-site construction of the remedial

action.”* 42 U.S.C. § 9613(g)(2)(B). The limitations

3A “remedial action” includes “those actioms consistent with

permanent remedy .. . to prevent or minimize the release of

hazardous substances so that they do not migrate to cause sub-

period is, as a general rule, half that period for cost

recovery actions relating to removal actions, which must

be brought “within 3 years after completion of the re-

moval action.” Id. § 9613(g)(2)(A).

Factual Background

As the court of appeals noted (Pet. App. 3a), the

following facts are undisputed. From 1972 to 1976, a

now-abandoned limestone quarry located on the south

bank of the Arkansas River in Tulsa County, Oklahoma

(the “Site”) was operated as a landfill. During this period,

hazardous substances were transported to and deposited

in the landfill from various sources. Over time, those

substances seeped into the soil, surface water and ground

water near the Site. In September 1984, the Environ-

mental Protection Agency (“EPA”) added the Site to

the “National Priorities List,” 40 C.F.R. part 300, app. B,

which is a nationwide listing of high priority sites for

decontamination. Three years later, on September 29,

1987, the EPA issued a “Record of Decision” (“ROD”)

outlining a plan for decontaminating the Site in accord-

ance with the “National Contingency Plan,” a series of

EPA regulations setting forth procedures and standards

for responding to releases of hazardous substances, pol-

lutants and contaminants. See 40 C.F.R. part 300.

Having devised a plan for decontaminating the Site,

the next step was for the EPA to determine who should

implement it. After investigation, the EPA identified

plaintiff-respondents Sun Company, Inc. (R&M) and Tex-

aco, Inc. (collectively, “plaintiffs”) as PRPs who had sub-

stantially contributed to the contamination of the Site and

thus were liable under CERCLA § 107(a), 42 U.S.C.

§ 9607(a), for the costs of the cleanup. Unable to reach

stantial danger to present or future public health or welfare or

the environment.” 42 U.S.C. § 9601(24). A “removal action,” by

contrast, involves, inter alia, “the cleanup or removal of released

hazardous substances from the environment” and “the taking of

such other actions as may be necessary to prevent, minimize, or

mitigate damage to the public health or welfare or to the environ-

ment.” Jd. § 9601(23).

a settlement with them, the EPA, on May 31, 1989, issued

an administrative order pursuant to CERCLA § 106, 42

U.S.C. § 9606, commanding plaintiffs to clean up the

Site as set forth in the ROD.* In re: Braniff, Inc., et al.,

CERCLA Dkt. No. VI-05-89 (EPA Region 6, Dallas,

TX). .Plaintiffs agreed to perform the remediation as

ordered, and remediation activities began in January 1990.

Those activities were completed by August 29, 1991, at

a cost of $6.2 million.

Procedural Background

Plaintiffs filed this suit on August 29, 1994, against

petitioners and scores of other parties whom they believed

contributed to the contaminaiion of the Site. Plaintiffs

asserted a self-styled cost recovery claim under CERCLA

§ 107(a), and a contribution claim under CERCLA

§ 113(f), in addition to pendent claims under Oklahoma

law. Unlike the cost recovery claim, which sought to hold

defendants jointly and severally liable for all of the cleanup

costs plaintiffs had incurred to date and would incur in the

future, the contribution claim merely sought an equitable

allocation of those costs among plaintiffs and defendants

on a several (as opposed to joint and several) basis.

Insofar as relevant here, the district court entered sum-

mary judgment against plaintiffs on their cost recovery

claim and ruled that the bulk of the costs sought in their

contribution claim were time-barred.

In reliance on binding Circuit precedent, the district

court ruled that “the only cause of action available to a

*CERCLA § 106 grants the President broad powers to respond

to “an imminent and substantial endangerment to the public health

or welfare or the environment because of an actual or threatened

release of a hazardous substance from a facility [covered by

CERCLA]).” 42 U.S.C. § 9606(a). When faced with such a danger,

the President may, among other things, “issu[e] such orders as

may be necessary to protect public health and welfare and the

environment.” Jd. The power to issue such orders (hereinafter

referred to as “section 106 orders”) has been delegated to the EPA.

See Exec. Ord. No. 12,580, 52 Fed. Reg. 2,923 (Jan. 23, 1987).

PRP seeking to recover from another PRP for cleanup

costs is a § 113(f) contribution action.” Pet. App. 20a

(citing United States v. Colorado & E. R.R. Co., 50

F.3d 1530, 1539 (10th Cir. 1995)). Because plaintiffs

“concede[d] that they generated wastes containing haz-

ardous substances that were transported to the Site,”

they could not bring a cost recovery action against other

PRPs under CERCLA § 107. Id. Accordingly, the court

entered summary judgment against plaintiffs on their cost

recovery claim.

The court then turned to the statute of limitations

question. The court noted that a triggering event for

the three-year contribution statute of limitations under

CERCLA § 113(g)(3) was lacking here because plain-

tiffs conducted their remediation activities in response to

a section 106 order, which is “not one of the triggering

events listed [in section 9613(g)(3)].”° Id. at 24a.

Given the absence of a triggering event for section 106

orders (which it deemed an “inadvertent omission” in light

of Congress’ clear intent in SARA to provide a statute of

limitations for all CERCLA actions, Pet. App. 25a), the

district court ruled that “this Court must supply one, look-

ing to federal common law *~» guidance.” Id. Invoking

general principles of contribu*» » law, the court concluded

that where, as here, none @ .«.< statutory triggering events

has occurred, a contribution action must be brought within

three years of when “the party seeking contribution has

paid more than [its] fair share of a common liability.” Jd.

at 26a. The court entered judgment accordingly and

certified the issue for appeal pursuant to 28 U.S.C.

§ 1292(b). Pet. App. 40a-42a.

5 The three-year statute of limitations under section 9613(g) (3)

for contribution actions is triggered by any of the following

orders: (1) a judgment in a section 107 cost recovery action,

42 U.S.C. § 9613(g)(3)(A); (2) an “administrative order under

§ 9622(¢) of this title (relating to de minimis settlements) or

§ 9622(h) of this title (relating to cost recovery settlements) ,”

id. § 9613(g) (3)(B); or (3) entry of “a judicially approved settle-

ment with respect to [response] costs or damages.” Jd.

DECISION OF THE COURT OF APPEALS

The Tenth Circuit accepted the case (Pet. App. 38a-39a)

and affirmed in part and reversed in part. The court of

appeals affirmed the district court’s ruling with respect to

plaintiffs’ section 107 cost recovery claim, concluding

that, regardless of the label on their pleadings, their claim,

as admitted PRPs who contributed to the contamination

of the Site, “is still a claim for contribution” that can

only be brought under section 113(f). Pet. App. 8a.

The appellate court parted company, however, with the

district court on the statute of limitations issue.

Even though “PRPs who have contributed waste to a

site . . . are limited to seeking contribution from other

PRPs” (id.) and thus may not bring a cost recovery

action, where, as here, no triggering event under the

contribution statute of limitations (CERCLA § 113(g)(3))

has occurred, “§ 113(g)(2)”—the statute of limitations

for cost recovery actions—‘covers PRPs in this situa-

tion.” Jd. at lla. “While a § 113 contribution action is

not a ‘cost recovery’ action under § 107 as that action has

been defined, because it does not impose strict, joint and

several liability on the defendant PRPs, it is an action

for recovery of the costs referred to in § 107.” Id. at 10a.

This is so because, in the court of appeals’ view, it is

section 107(a), not section 113(f), that gives rise to a

right of contribution: “ ‘section 107 created the right of

contribution, [and] the ‘machinery’ of § 113 governs and

regulates such actions.’” Id. at 9a (quoting Pinal Creek

Group Vv. Newmont Mining Corp., 118 F.3d 1298, 1302

(9th Cir. 1997)). In short, “because no previous action

under §§ 106 or 107 has been filed with respect to this

site, Plaintiffs’ contribution action—while governed by

the equitable principles of § 113(f)—is the ‘initial action’

for recovery of such costs,” and so the court concluded

that the six-year limitations period set forth in CERCLA

§ 113(g)(2)(B) applied. 7d. at 11a. Consequently, the

court reinstated plaintiffs’ contribution claims as timely

filed.

—T Se ee

REASONS FOR GRANTING THE PETITION

The Tenth Circuit cannot have it both ways; a con-

tribution claim under CERCLA either is, or is not, a cost

recovery claim. If contribution actions are merely a

species of cost recovery actions, then PRPs not only may

bring suit under section 107(a)—they must do so, for it

is that provision that provides their right of action.

On the other hand, if contribution actions are not cost

recovery actions, the timeliness of a contribution claim is

governed solely by the three-year statute of limitations for

contribution claims (42 U.S.C. § 9613(g)(3)), as opposed

to the longer limitations period that applies to cost recovery

actions (id. § 9613(g)(2)(B)). Sacrificing consistency

for expediency, however, the Tenth Circuit adopted the

“Alice in Wonderland”-like view that a contribution claim

is a cost recovery claim—but only sometimes. Thus, after

affirming the dismissal of plaintiffs’ section 107 cost

recovery claim (because a suit by and between PRPs is

necessarily a contribution claim), the court of appeals held

that plaintiffs’ contribution claims were timely under sec-

tion 113(g)(2)(B) (because an action for contribution

is necessarily a cost recovery action).

This result is not only internally inconsistent; it is

inconsistent with the decisions of other Circuits and con-

trolling decisions of this Court. In ruling that the two

type of actions are non-distinct and overlapping for statute

of limitations purposes, the court below created a con-

flict with several other Circuits that have ruled that con-

tribution claims are indeed distinct from, and are not a

subspecies of, cost recovery actions. Moreover, the court

of appeals added to the divergence of opinion that exists

in the lower courts over when a contribution action in

the absence of a triggering event under CERCLA § 113

(g)(3) can be brought. A writ of certiorari should issue

to bring badly needed guidance from this Court to this

confused area of law and to bring the court below into

line with controlling decisions of this Court.

I. THE COURT OF APPEALS’ RULING THAT A CON-

TRIBUTION ACTION IS A COST RECOVERY

ACTION DEEPENS A SPLIT OF AUTHORITY ON

THE RELATIONSHIP BETWEEN THESE TYPES

OF ACTIONS AND THE PROPER LIMITATIONS

PERIOD FOR A CONTRIBUTION ACTION FOL-

LOWING A SECTION 106 ORDER BY THE EPA.

A. The Tenth Circuit Has Deepened A Conflict Among

The Circuits On Whether Contribution Actions And

Cost Recovery Actions Are Distinct Or Overlapping

Remedies, A Question That Controls The Selection

Of The Proper Statute Of Limitations In This

Context.

1. The Tenth Circuit expressly acknowledged that its

ruling that contribution actions are necessarily cost re-

covery actions, for statute of limitations purposes at least,

was contrary to the decision of the Third Circuit in Jn re

Reading Co., 115 F.3d 1111 (1997). Indeed, the court

below rejected Reading as based on “a misconception of

the relationship between §§ 107 and 113.” Pet. App.

at 14a.

In Reading, the Third Circuit ruled that contribution

actions and cost recovery actions are distinct, non-over-

lapping forms of relief. Prior to the SARA amendments

to CERCLA, PRPs “could make a viable claim for con-

tribution under § 107(a)(4)(B)” because the courts had

recognized an implied right of action for contribution

under that provision. 115 F.3d at 1118. With the enact-

ment of CERCLA § 113(f)(1) in 1986, however, Con-

gress “replace[d] the judicially crafted [contribution]

measure with an express statutory remedy.” Jd. at 1119

(emphasis added); see also id. at 1120 (“We therefore

rely on CERCLA’s plain meaning to hold that § 113(f)

replaces the judicially created cause of action under

§ 107(a)(4)(B) to the extent that a party seeks con-

tribution.”). As a result, after SARA, CERCLA § 113

(f)(1) is “the sole means for seeking contribution—at

whatever time in the cleanup process the party, seeking

contribution, decides to pursue it.” Jd. (emphasis added).

Were it otherwise, the court noted, “that would throw the

proverbial monkey wrench into the works” by permitting

plaintiff PRPs to evade section 113’s restrictions on con-

tribution actions through the simple expedient of charac-

terizing their contribution claims as cost recovery claims.

Id.

These rulings are directly contradicted by the decision

below. Contrary to the holding in Reading that section

113(f)(1) created a new, express statutory right to con-

tribution that replaces the pre-SARA implied right to

seek contribution under section 107(a)(4)(B), the Tenth

Circuit below construed SARA as merely approving and

leaving intact the pre-SARA implied right of action for

contribution under section 107. See, e.g., Pet. App. 9a

(“§ 113(f) did not create a new cause of action, nor

did it create any new liabilities. ‘It is no more than a

mechanism for apportioning [CERCLA|]-defined costs.’ ”’).°

The Tenth Circuit has thus reduced the entirety of section

113(f)(1) to the phrase, “In resolving contribution claims,

the court may allocate response costs among liable parties

using such equitable factors as the court determines are

appropriate” (42 U.S.C. § 9613(f)(1)), ignoring the

critical passage from the provision that, as the Reading

court correctly ruled, creates an express right of action

for contribution. See id. (providing that “[a]ny person

may seek contribution from any other person who is liable

or potentially liable under section 9607(a) of this title”).

Indeed, the Tenth Circuit quite clearly threw into the

CERCLA works the “monkey wrench” rejected by the

® The court below quoted a statement from another Third Circuit

case, New Castle County v. Halliburton NUS Corp., 111 F.3d 1116,

1122 (1997), to the effect that “‘[s]ection 113 does not in itself

create new liabilities.’”” Pet. App. 9a. That statement was taken

out of context. Halliburton stressed that section 113 conferred “a

clear, statutory right to seek [contribution]” from parties them-

selves jointly and severally liable under section 107(a) (111 F.3d

at 1122 (emphasis added)), a conclusion plainly at odds with the

Tenth Circuit’s view that section 113 “did not create a new cause

of action.” Pet. App. 9a.

Third Circuit as “undesirable” in light of congressional

intent. Reading, 115 F.3d at 1119. Contrary to the hold-

ing in Reading that PRPs should not be allowed to “end

run” the statutory restrictions on contribution by charac-

terizing their contribution claims as cost recovery claims

(id.), the court of appeals here has done precisely that.

To be sure, the Tenth Circuit held that all other features

of CERCLA § 113(f), such as the settlement bar rule

discussed in Reading (CERCLA § 113(f)(2)) and the

equitable measure of recovery (CERCLA § 113(f)(1)),

are controlling even though it decided that the contribu-

tion claim is premised upon section 107(a). Pet. App.

14a-15a. Nevertheless, the fact remains that the court

below permitted one key feature of a post-SARA contri-

bution action—the statute of limitations—to vary based

on whether the action can be conceived of as overlapping

with section 107(a).

Even the Tenth Circuit could not dispute the fact that

both the text and legislative history of CERCLA § 113(g)

demonstrate that Congress intended that all contribution

actions would be subject to a three-year statute of limita-

tions. The provision is entitled “Contribution Actions”

and governs when an “action for contribution for any

response costs or damages may be commenced.” 42

U.S.C. § 9613(g)(3). These features of the statute leave

no doubt that Congress intended that CERCLA § 113

(g)(3), not CERCLA § 113(g)(2), would be control-

ling on the timeliness of any action for contribution. On

this issue the legislative history could not be clearer:

“This section [CERCLA § 113] establishes a three-year

statute of limitations for the filing of an action for con-

tribution for response costs or damages.” H.R. Rep. No.

99-253(1), at 79 (1986), reprinted in 1986 U.S.C.C.A.N.

2835, 2861. Disregarding the legislative judgment that a

CERCLA contribution action should be brought within

three years of accrual, the Tenth Circuit performed pre-

cisely the type of “end run” around CERCLA § 113 prop-

erly condemned as illegitimate in Reading by applying

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the six-year statute of limitations for cost recovery actions

to contribution actions following section 106 orders. The

two rulings, therefore, stand in unquestioned and acknowl-

edged conflict with one another.

2. The Tenth Circuit’s decision also conflicts with

precedents from several other Circuits which, like Read-

ing, reject the view that a post-SARA action for contribu-

tion can be considered a cost recovery action under sec-

tion 107(a).

The leading decision is United Technologies Corp. v.

Browning-Ferris Indus., Inc., 33 F.3d 96 (1st Cir. 1994).

There, the First Circuit considered whether an action by

a PRP against other PRPs could be deemed timely under

the six-year cost recovery statute of limitations (CERCLA

§ 113(g)(2)(B)). The First Circuit held that it could

not; the Tenth Circuit here, of course, reached the oppo-

site conclusion.

The First Circuit held that the reference to “recovery

of costs” in CERCLA § 113(g)(2)(B) requires that the

six-year limitations period set forth therein applies only

to cost recovery actions for joint and several liability. As

the court put it: the phrase “recovery of costs,” which is

“reiterative of the subsection heading ‘Actions for re-

covery 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.” 33 F.3d at

100. The Tenth Circuit in this case rejected that view

(namely, “that § 113(g)(2) covers only the traditional

‘cost recovery’ action under § 107—which imposes strict,

joint and several liability”), stating tersely that “the lan-

guage in question contains no such limitation.” Pet. App.

12a. The court below offered no response to the First

Circuit’s holding that a suit for contribution necessarily

is not an action for “recovery” of response costs because

such a suit merely seeks to allocate part of their response

costs to other PRPs, as opposed to shifting all of those

costs to other PRPs.

Similarly, although the court below held that “all

actions by and between jointly and severally liable PRPs

are ‘actions under § 107’ for purposes of liability” (Pet.

App. 15a), the First Circuit squarely rejected that view,

concluding that “cost recovery and contribution actions

are distinct and do not overlap.” 33 F.3d at 100; see

also id. at 103 (“CERCLA’s text indicates that contribu-

tion and cost recovery actions are distinct, non-over-

lapping anodynes[.]”). Because a contribution action is

not a cost recovery action, the First Circuit held that the

timeliness of a contribution action is controlled solely by

CERCLA § 113(g)(3): “[T]he shorter prescriptive pe-

riod, contained in 42 U.S.C. § 9613(g)(3), governs actions

brought by liable parties . . . , while the longer statute of

limitations, contained in 42 U.S.C. § 9613(g)(2), ad-

dresses actions brought by innocent parties that have

undertaken cleanups (say, the federal, state, or local

government).”* 33 F.3d at 99. Again, the Tenth Cir-

cuit concluded here that the longer statute of limitations,

which United Technologies held inapplicable to actions

by and between PRPs, can and does apply to such suits

absent a triggering event under CERCLA § 113(g)(3).

Pet. App. 12a.

The Fifth and Eleventh Circuits agree with Reading

and United Technologies, and disagree with the court of

appeals below, on the question of whether cost recovery

and contribution actions are overlapping or distinct reme-

dies. See OHM Remediation Servs. v. Evans Cooperage

Co., 116 F.3d 1574, 1582 (Sth Cir. 1997) (holding

7 The court left open the “possib[ility]” that “a PRP who spon-

taneously initiates a cleanup without governmental prodding might

be able to pursue an implied right of action for contribution under

42 U.S.C. § 9607[(a)]” and did not decide what statute of limita-

tions would apply to such an action. United Techs., 33 F.3d at 99

n.8. This case does not present that question because it was only

significant “governmental prodding,” in the form of a section 106

order by the EPA, that prompted plaintiffs to initiate a cleanup at

the Site. As such, to quote the district court, their remediation

“can hardly be characterized as voluntary.” Pet. App. 25a n.6.

that “§ 113(f) was not meant to be duplicative of section

107(a), but meant instead to allow potentially responsi-

ble parties a cause of action to mitigate the harsh effects

of joint and several liability”); Redwing Carriers, 94

F.3d at 1513 (11th Cir. 1996) (“[W]hen one liable party

sues another liable party under CERCLA, the action is

not a cost recovery action under § 107(a). Rather, it

is a claim for contribution under § 113(f).”).

3. In the face of these adverse precedents from its

sister Circuits, the Tenth Circuit’s ruling finds support

in but one other Circuit—the Ninth. In Pinal Creek

Group v. Newmont Mining Corp., 118 F.3d 1298 (1997),

the Ninth Circuit endorsed the internal contradiction

(euphemistically termed a “duality,” id. at 1301) em-

braced by the court below, in which a contribution action

is not a cost recovery action for purposes of pursuing

joint and several liability (id. at 1306), but may be a

cost recovery action for statute of limitations purposes in

the absence of a triggering event under CERCLA § 113

(g)(3). Id. at 1305 & n.7 (dicta). The Ninth Circuit

stated that “§ 107 implicitly incorporates a claim for con-

tribution” even after passage of SARA (id. at 1301)

because, in reality, section 113(f) “ ‘does not create the

right of contribution’” enjoyed by PRPs. /d. at 1302

(quoting United States v. ASARCO, Inc., 814 F. Supp.

951, 956 (D. Colo. 1993)). As the Pinal Creek court

would have it, “§ 107 created the right of contribution.

[but] the ‘machinery’ of § 113 governs and regulates such

actions, providing the details and explicit recognition that

were missing from the text of § 107.” ° Id.

In sum, the Tenth Circuit’s ruling in this case is con-

sistent only with the Ninth Circuit’s language in Pinal

® The Tenth Circuit below seized upon that reasoning as support

for its ruling on the statute of limitations issue (Pet. App. 9a),

even though Pinal Creek explicitly ‘“decline[d] the [plaintiff's]

invitation to opine on [that issue] indirectly,” noting that “[nJo

statute of limitations issue is before us in this case.” 118 F.3d

at 1305.

Creek, and is in conflict with decisions of the First, Third,

Fifth and Eleventh Circuits. In contrast to the Tenth Cir-

cuit, these latter Circuits correctly interpret CERCLA

as sharply delineating between actions for contribution

(which are governed exclusively by the three-year limita-

tions requirement of CERCLA § 113(g)(3)) and cost

recovery actions (which are subject to the six-year limita-

tions period of CERCLA § 113(g)(2)(B)). As shown

by the number of times the courts of appeals have been

called upon in recent years to clarify the relationship be-

tween contribution and cost recovery actions under CER-

CLA, this issue is important to the proper administration

of CERCLA. See, e.g., Pet. App. 3a (“For the third time

in as many years, we are faced with the task of further

defining and clarifying the relationship between §§ 107

and 113[.]”). This Court should grant certiorari to re-

solve the decisional conflict over this recurring issue.

B. The Ruling Below Has Created A Three-Way Split

Of Authority On The Limitations Period Applicable

To Contribution Suits Brought By Liable Parties

Who Conduct Cleanups In Response To Section 106

Orders.

Even on the narrow issue of the applicable statute of

limitations under CERCLA for a contribution suit for an

allocation of costs incurred in compliance with a section

106 order, there is a conflict of authority in the lower

courts. Indeed, three different answers to that single ques-

tion of law have emerged in the lower federal courts.

Clearly, this is a situation that calls for review by this

Court.

1. The first of the two alternative approaches to the

Tenth Circuit’s was recently announced by the Seventh

Circuit. Rumpke of Indiana, Inc. v. Cummins Engine

Co., 107 F.3d 1235 (1997). In that case, the court of

appeals considered the statute of limitations issue in con-

nection with its recognition of an “innocent landowner”

exception to the rule uniformly accepted in the Circuits

that PRPs cannot bring suit for joint and several liability

under section 107(a). The court rejected a claim that

recognition of such an action on behalf of an innocent

landowner (defined as a party who, although technically

a PRP based on its ownership of a contaminated site, has

“contributed nothing to the hazardous conditions” there,

id. at 1240) would flout the three-year contribution statute

of limitations in cases where, as in Rumpke itself, no

triggering event under CERCLA § 113(g)(2) has oc-

curred. In such cases, the court ruled, “(t]he contribution

claim would not accrue until one of the events specified

in § 9613(g)(2) [sic] occurred, at which time three years

would be available in which to file an appropriate suit.” °

Id. at 1241 (emphasis added).

As a result, the Seventh Circuit reads issuance of the

court or administrative orders specified in CERCLA

§ 113(g)(3) as more than simply events that trigger

the running of the three-year statute of limitations for con-

tribution actions—they also govern when a contribution

claim accrues and thus can be asserted. This reading of

the statute produces the sensible result that the statute of

limitations begins to run at the same time the cause of

action accrues, and also respects Congress’ policy judg-

ment that all contributions should be brought within three

years of accrual. The Tenth Circuit’s holding in this case,

however, is flatly contrary to Rumpke in these respects.

Unlike the Tenth Circuit, the Seventh Circuit denies

non-innocent PRPs, such as plaintiffs, a remedy under

CERCLA § 113(f)(1) unless a triggering event has

occurred, for until that time “[t]he contribution claim

would not accrue.” ’® 7d. at 1241. As its ruling reinstat-

® The Rumpke court’s reference to section 9613(g)(2) was obvi-

ously a typographical error, given that it is section 9613(g) (3) that

provides the three-year statute of limitations for contribution ac-

tions. Compare 42 U.S.C. § 9613(g)(2) with id. § 9613(g) (3).

10 Of course, PRPs have control over whether the triggering

events occur, in that they can reach a judicially approved settlement

ing plaintiffs’ contribution claims demonstrates, the Tenth

Circuit, by contrast, holds that a claim for contribution

does accrue (and can be brought and recovered upon)

even if, as here, a triggering event never occurs. On this

issue, therefore, there is a square conflict between the

Seventh and Tenth Circuits.

2. The second approach to the problem of determining

the applicable limitations period for a contribution claim

in the absence of one of the triggering events specified

in CERCLA § 113(g)(3) has been endorsed by several

lower courts. See, e.g., Gould Inc. v. A&M Battery and

Tire Serv., 901 F. Supp. 906 (M.D. Pa. 1995); Reichhold

Chems., Inc. v. Textron, Inc., 888 F. Supp. 1116 (N.D.

Fla. 1995). Surprisingly, given this Court’s long-standing

recognition that “[a] federal cause of action ‘brought at any

distance of time’ would be ‘utterly repugnant to the genius

of our laws’ ” (Wilson v. Garcia, 471 U.S. 261, 271 (1985)

(quoting Adams v. Woods, 2 Cranch 336, 342 (1805)),

these decisions ruled that there is no statute of limitations

at all for contribution claims as to which no triggering

event has occurred, including claims for costs incurred in

response to section 106 orders. See Gould, 901 F. Supp.

at 915 (“As none of the so called triggering events have

occurred, Gould’s claim, which is one for contribution,

is timely brought.”); Reichhold, 888 F. Supp. at 1125

(holding that absent a court or administrative ruling that

“meet[s] the statutory criteria of Section 113(g)(3),” a

contribution claim “is not time barred”).

with the EPA, thereby causing their inchoate right to contribution

under CERCLA § 113(f) (1) to mature. See 42 U.S.C. § 9613(g) (3).

Where a PRP intends to comply with a section 106 order—and

parties confronted with such orders generally do comply given,

inter alia, the draconian monetary fines that attend noncompliance

(see id. § 9606(b) )—the PRP is going to perform the cleanup, as

directed in the EPA’s order and ROD. Accordingly, there are good

reasons for the PRP to resolve any questions about its conduct and

liability in a settlement agreement, a result that would ive affected

parties notice and an opportunity to be heard and would trigger

the statutory procedural protections for CERCLA settlements. See

id. § 9622(i).

The Tenth Circuit explicitly rejected these courts “ex-

clusive reliance upon § 113(g)(3)” in the absence of a

triggering event (Pet. App. 12a n.3) and looked to

CERCLA § 113(g)(2)(B) for the applicable limitations

period in that circumstance. The Seventh Circuit in

Rumpke, however, sided with the district courts in this

respect, holding that section 113(g)(3) alone provides

the applicable statute of limitations for contribution

claims. 107 F.3d at 1241. Nonetheless, Rumpke reached

a result at odds with the Tenth Circuit and the district

courts in concluding that a contribution action “[can]not

accrue until one of the events specified in § 9613(g)

[(3)] occur[s].” Jd.

In further conflict with the Tenth Circuit, Gould and

Reichhold reject the view that section 9613(g)(2) pro-

vides the statute of limitations for contribution actions

bereft of one of the statutorily prescribed triggering

events—a view likewise rejected by the First Circuit in

United Technologies, 33 F.3d at 99 (ruling that “the

longer statute of limitations, contained in 42 U.S.C.

§ 9613(g)(2), addresses actions brought by innocent

parties that have undertaken cleanups,” not PRPs). See

Gould, 901 F. Supp. at 914 (“Plaintiff Gould’s assertion

that § 113(g)(2) is the applicable statute of limitations

is incorrect, since that section relates to cost recovery

actions under § 107, while the instant case is a contribu-

tion action under § 113.”); Reichhold, 888 F. Supp. at

1125 (holding that it “is not necessary, or even proper,”

to look to section 113(g)(2) or any statute of limitations

other than “the limitations period mandated by Congress”

for contribution actions, CERCLA § 113(g)(3)).

> 66

As this discussion of the extant caselaw makes clear,

this area of law is rife with confusion and disagreement

among the lower courts on the proper relationship be-

tween cost recovery and contribution actions as it relates

to selection of the proper statute of limitations in cases

where no triggering event under CERCLA § 113(g) (3)

has occurred. This is an important issue, for on it

hinges whether PRPs not targeted by the EPA will be

granted the full measure of protection against stale claims

that Congress intended to confer in the SARA amend-

ments. See H.R. Rep. No. 99-253(1), at 273 (1986),

reprinted in 1986 U.S.C.C.A.N. 2835, 28621 (explain-

ing that statutes of limitations were added in SARA “to

assure that evidence concerning liability and response

costs is fresh and to provide a measure of finality to

affected responsible parties”). When four courts split

three different ways on an important question of law, as

they have here, it becomes plain that the conflict will

not abate absent authoritative guidance from this Court.

Accordingly, the Court should grant certiorari in this

case to provide that needed guidance.

II. THE TENTH CIRCUIT'S DECISION EXTENDING

THE COST RECOVERY STATUTE OF LIMITA-

TIONS TO CONTRIBUTION ACTIONS FOLLOW-

ING SECTION 106 ORDERS CONFLICTS WITH

CONTROLLING DECISIONS OF THIS COURT.

The Tenth Circuit’s ruling below is contrary to con-

trolling decisions of this Court. This provides another

reason to grant certiorari in this case.

A. The Tenth Circuit Has Resurrected The Pre-SARA

Federal Common Law Right To Contribution Under

CERCLA Even Though The SARA Amendments To

CERCLA Explicitly Address—And Thus, Under

This Court’s Precedents, Displace—That Aspect Of

Federal Common Law.

As originally enacted, CERCLA did not provide an ex-

press right of action for contribution. Based on concerns

about the inequity of holding each PRP jointly and sever-

ally liable for the costs of an entire cleanup, however

minor its contribution to the contamination may have been,

the lower federal courts almost without exception responded

by “finding an implicit, federal common law right to con-

tribution.” OHM Remediation Servs. v. Evans Cooperage

Co., 116 F.3d 1574, 1581 (Sth Cir. 1997); see generally

Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454,

1457 n.3 (9th Cir. 1986) (citing cases). The legal land-

scape changed considerably in 1986. As this Court ex-

plained in Key Tronic Corp. v. United States, 511 US.

809 (1994), “[t]he 1986 [SARA] amendments included

a provision—CERCLA § 113(f)—that expressly created

a cause of action for contribution.” /d. at 816. In light

of the availability of an express statutory right of action

under SARA for contribution, the question arises whether

it is appropriate for federal courts to preserve the pre-

SARA judicially implied right of action for contribution

under section 107(a) (4) (B).

Breaking ranks with other Circuits, see, e¢.g., In re

Reading Co., 115 F.3d 1111, 1118-19 (3d Cir. 1997),

the Tenth Circuit below ruled that the federal common

law right to contribution survived enactment of SARA.

The court reasoned that, by virtue of the pre-SARA fed-

eral common law implied right of action for contribution

under section 107(a)(4)(B), “all” actions for contribu-

tion “are ‘actions under § 107’ for purposes of liability”

(Pet. App. 15a), with section 113(f) providing “no

more than a mechanism for apportioning [CERCLAI]-

defined costs.” Pet. App. 9a (internal quotation marks

omitted). In effect, the court of appeals held that the

provision of section 113(f)(1) that, to quote this Court,

“expressly created a cause of action for contribu-

tion” (Key Tronic, 511 U.S. at 816 (emphasis added) )

had to give way to the prior federal common law implied

right of action for contribution. That holding cannot be

reconciled with controlling decisions of this Court.

“Federal courts, unlike state courts, are not general

common-law courts and do not possess a general power

to develop and apply their own rules of decision.” City

of Milwaukee v. Illinois, 451 U.S. 304, 312 (1981).

Rather, “federal courts create federal common law only

as a necessary expedient when problems requiring federal

answers are not addressed by federal statutory law.” Id.

at 319 n.14. It is in this sense that, as this Court has

repeatedly declared, “‘[t]here is no federal general com-

mon law.’” O’Melveney & Myers v. FDIC, 512 U.S. 79,

83 (1994) (quoting Erie R.R. Co. v. Tompkins, 304

U.S. 64, 78 (1938) ).

In light of these well-established principles, it is plainly

the federal common law rule—znot, as the Tenth Circuit

would have it, the statute—that must yield when

Congress legislates in an area formerly governed by fed-

eral common law. As the Court ruled in City of Mil-

waukee, whenever federal courts announce a rule of fed-

eral common law, their handiwork, of necessity, “is ‘sub-

ject to the paramount authority of Congress.’” 451 U.S.

at 313 (quoting New Jersey v. New York, 283 U.S. 336,

348 (1931)). As a result, “when Congress addresses a

question previously governed by a decision rested on

federal common law the need for such an unusual exer-

cise of lawmaking by federal courts disappears.” Jd. The

Court reaffirmed congressional supremacy over federal

common law in Northwest Airlines, Inc. v. Transport

Workers Union, 451 U.S. 77 (1981):

[O]nce Congress addresses a subject, even a subject

previously governed by federal common law, the

justification for lawmaking by the federal courts is

greatly diminished. Thereafter, the task of the fed-

eral courts is to interpret and apply statutory law,

not to create common law.

Id. at 95 n.34.

As applied to this case, these precedents from this

Court leave no doubt that the Tenth Circuit overstepped

the bounds of its authority in preserving the pre-SARA

federal common law implied right to contribution under

CERCLA in the face of the express right of contribution

conferred by SARA. In terms that could hardly be clearer,

Congress, in 1986, directly addressed itself to the question

whether there is a right to contribution among parties who

are jointly and severally liable under CERCLA. In doing

so, it did more than merely “confirm” the implied right of

action previously recognized by the lower federal courts; it

conferred an express right of action for contribution,

CERCLA § 113(f)(1). See Key Tronic, 511 U.S. at

816; see generally New Castle County v. Halliburton NUS

Corp., 903 F. Supp. 771, 778 (D. Del. 1995) (holding

that instead of merely “clarifying that § 107 had always

been intended to be available to PRPs,” SARA “guaran-

teed a PRP’s right to contribution via creation of a new

statutory section, § 113(f)(1)”), affd, 111 F.3d 1116

(3d Cir. 1997). Because SARA thus directly addresses

the existence of a right to contribution under CERCLA,

there is no “justification” for adhering to the pre-SARA

federal common law implied right of action for contribu-

tion under section 107(a). Northwest Airlines, 451 U.S.

at 95, n.34; see also City of Milwaukee, 451 U.S. at 313.

Accordingly, controlling decisions from this Court dic-

tate a conclusion opposite to that reached below— namely,

the rights of PRPs to contribution are based upon, and

are controlled solely by, CERCLA §113(f), not the

preexisting rule of federal common law right of action

for contribution implied under CERCLA § 107(a)(4)(B).

Even apart from the confusion among the lower court

decisions on the proper relationship between cost recovery

and contribution actions, this Court should grant cer-

tiorari to correct the court of appeals’ intrusion on the

1 Although Key Tronic cryptically stated that CERCLA §§ 107(a)

and 113(f) are “similar and somewhat overlapping” (511 U.S.

at 816), that dictum (on which the Tenth Circuit relied, Pet.

App. 18a) is inapposite here. See United Techs. Corp. v. Browning-

Ferris Indus., Inc., 33 F.3d at 108 n.12 (“The Key Tronic Court

was discussing two different species of contribution actions and ex-

pressed no views anent the relation between contribution and cost

recovery actions.’’); see also In re Reading, 115 F.3d at 1120 (com-

ment referred only to the unquestioned ability of innocent land-

owner PRPs to recover under either CERCLA provision). The

statement assuredly does not support the court of appeals’ sweeping

conclusion that “all [contribution actions under § 113(f)] are ‘ac-

tions under § 107.’” Pet. App. 15a (emphasis added). The dispute

between the court below and these other Circuits on the proper

interpretation of Key Tronic provides a further reason for granting

certiorari here.

legislative domain, thereby giving full effect to the SARA

amendments to CERCLA.

B. Because CERCLA Fails To Specify A Triggering

Event For The Three-Year Limitations Period Con-

gress Enacted For All Contribution Actions, This

Court’s Precedents Required The Court Below To

Borrow The Most Closely Analogous Limitations

Period From State Law.

The Tenth Circuit reached a result contrary to this

Court’s precedents in another respect as well. When faced

with the absence of an applicable triggering event to com-

mence the running of the three-year statute_of limitations

for contribution actions under CERCLA § 113(g)(3),

the court below shoe-horned such contribution actions

into the six-year cost recovery statute of limitations

(CERCLA § 113(g)(2)(B)). To the extent a contribu-

tion’ action can even accrue in the first place absent one of

the statutorily defined triggering events—a possibility an-

other Circuit has rejected, see Rumpke of Indiana, Inc. v.

Cummins Engine Co., 107 F.3d 1235, 1241 (7th Cir.

1997)—the court of appeals’ result is contrary to estab-

lished law from this Court.

In the not uncommon situation where Congress creates

a federal cause of action without enacting a correspond-

ing statute of limitations, this Court’s precedents have

provided a ready answer for more than 150 years. “Since

1830, ‘state statutes have repeatedly supplied the periods

of limitations for federal causes of action’ when the fed-

eral legislation made no provision[.]” North Star Steel

Co. v. Thomas, 515 U.S. 29, 34 (1995) (quoting Auto-

mobile Workers v. Hoosier Cardinal Corp., 383 U.S.

696, 703-04 (1966) ); see also, e.g., Wilson v. Garcia,

471 U.S. 261, 266-67 & n.12 (1985) (citing cases);

Reed v. United Transp. Union, 488 U.S. 319, 323-24

(1989). As this Court held in Wilson, “[w]hen Congress

has not established a time limitation for a federal cause

of action, the settled practice has been to adopt a local

time limitation as federal law,” except in the rare circum-

stance where there is a significant conflict between federal

iene tinal

law and the use of state law. 471 U.S. at 266-67. Because

this practice of borrowing state statutes of limitations is

“longstanding,” it is “not only appropriate but also realis-

tic to presume” that, in enacting a cause of action with-

out specifying a federal limitations period, Congress in-

tends that state statutes of limitations be borrowed.”

North Star Steel, 515 U.S. at 34 (internal quotation

marks omitted).

Another line of precedents dictates the use of state

law in this case to fill any gap in CERCLA on the statute

of limitations question. These cases all proceed from the

recognition that, in legislating, “Congress acts against the

background of the total corpus juris of the states.”

Atherton v. FDIC, 117 S. Ct. 666, 670 (1997) (internal

quotation marks and ellipses omitted). In light of this

fact, this Court has held that there is a strong presumption

in favor of using state law to fill gaps or interstices in

comprehensive federal statutory schemes. Under O’Mel-

veney & Myers v. FDIC, questions left unaddressed in

such schemes are “presumably left subject to the dis-

position provided by state law.” 512 U.S. at 85 (citing

City of Milwaukee, 451 U.S. at 319; Northwest Airlines,

451 U.S. at 97). As this Court has recognized, and as

even cursory perusal of the statute confirms, “CERCLA is

a comprehensive statute.” Key Tronic, 511 U.S. at 814;

see also Reading, 115 F.3d at 1119 (same as to SARA

amendments). As such, there can be no doubt that state

law should be utilized in filling the interstices in CERCLA.

See, e.g., Redwing Carriers, 94 F.3d at 1498-1502 (adopt-

ing state partnership law); Anspec Co. v. Johnson Con-

trols, Inc., 922 F.2d 1240, 1248 (6th Cir. 1991) (adopt-

ing state corporate law).

Under both lines of precedents, the proper course for

the court below was to borrow the analogous statute of

12 Of course, federal, rather than state, statutes of limitations

are to be borrowed where federal law “provides a closer analogy”

to the cause of action in question. North Star Steel, 515 U.S. at

35 (citing cases) (internal quotation marks omitted).

limitations from the relevant State (here, Oklahoma).

Had the court followed this rule, it would have discovered

that Oklahoma provides a general three-year statute of

limitations—the same time period adopted in CERCLA

§ 113(f£)(1) for contribution actions—for “action[s] upon

a liability created by statute other than a forfeiture or

penalty.” Okla. Stat. tit. 12, § 832. As the district court

held (and as all parties “agree[d],” Pet. App. 27a) with

respect to plaintiffs’ pendent state law claims for contribu-

tion, the Oklahoma limitations period for contribution

actions is triggered when a liable party has paid more than

its fair share of a common liability. Jd. 26a-27a. This

clear, readily available limitations period should have been

applied under this Court’s precedents.“ The Tenth Cir-

cuit’s departure from these age-old principles provides a

further reason for this Court to grant review in this case.

* * * *

In sum, this Court’s guidance is sorely needed to bring

clarity to this confused area of federal law. Without

agreement on basic questions such as those presented in

this Petition, which are fundamental to the proper ad-

ministration of CERCLA, parties faced with the prospect

of CERCLA liability will be uncertain about their rights.

Moreover, the parties and the courts will continue to be

mired in drawn-out litigation in CERCLA cases over

these collateral (but nonetheless important) matters, in-

stead of the central issues of determining and apportion-

ing liability for the costs of cleaning up hazardous waste

sites.

18 The fact that the bulk of plaintiffs’ contribution claims would

be untimely under Oklahoma law (Pet. App. 27a-28a) does not sug-

gest that adoption of state law would be inconsistent with CERCLA.

State law “cannot be considered ‘inconsistent’ with federal law

merely because [it] causes the plaintiff to lose the litigation.”

Robertson v. Wegmann, 436 U.S. 584, 593 (1978).

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

TERENCE BRENNAN CARTER G. PHILLIPS *

LAW OFFICE OF STEPHEN F.. SMITH

TERENCE BRENNAN SIDLEY & AUSTIN

320 South Boston Avenue 1722 Eye Street, N.W.

Suite 825 Washington, D.C. 20006

Tulsa, OK 74103 (202) 736-8000

(918) 584-4333

Attorneys for Petitioners

December 12, 1997 * Counsel of Record

APPENDICES

ge a <2 . 2 rere . Da RA Ee

APPENDIX A

[Filed Aug. 14, 1992]

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 96-5222

SUN CoMPANY, INC. (R&M),

a Delaware corporation;

TEXACO, INC.,

a Delaware corporation,

Plaintiffs-A ppellants,

Vv.

BROWNING-FERRIS, INC., a Delaware corporation; ARK

WRECKING COMPANY OF OKLAHOMA, INC., HOUSING

AUTHORITY FOR THE CITY OF TULSA; PEDRICK LABs;

JOHN Dok d/b/a Pedrick Labs; ART WEEDIN; BEVER-

AGE PRropuCTs CorRP.; COWEN CONSTRUCTION, INC.;

NATIONAL TANK Co.; PEEVY CONSTRUCTION Co. INC.;

MONTE SHIPLEY; SUN CHEMICAL CORPORATION;

OZARK MAHONING COMPANY; THE CITY OF SAND

SPRINGS, OKLAHOMA; ATLANTIC RICHFIELD COMPANY;

PUBLIC SERVICE COMPANY OF OKLAHOMA; BANCOFF

Ort COMPANY; BoRG INDUSTRIAL Group., d/b/a

American Container Services; CONSOLIDATED CLEAN-

ING SERVICES Co. INC.; CHARLES FORHAN, d/b/a

D&W Exterminating; Or CAPITAL-TRASH SERVICES,

INc.; STEVE RICHEY, d/b/a Richey Refuse Service;

EsTATE OF JOHN D. SHIPLEY, deceased; SHIPLEY

REFUSE; ROBERT E. SPARKS, d/b/a Tulsa Industrial

Services; UNION CARBIDE CoRP.; WASTE MANAGEMENT

OF OKLAHOMA, INC., Defendants-A ppellees,

and

BANK IV OKLAHOMA, N.A.; STAN DOYLE; FLEMINGS

ROOFING AND SHEET METAL COMPANY; GRANT GILL,

d/b/a Gill Sanitation; INSULATION SERVICES, INC.; WRG

CONSTRUCTION COMPANY, INC.; W.R. GRIMSHAW,

d/b/a WRG Construction; TuLsA COUNTY PUBLIC

FACILITIES AUTHORITY; JAMES P. EvaTT; F&G Exca-

VATION; JOHN Dog, d/b/a F&G Excavation; NELLIE

Farris; First TOWER CONSTRUCTION; JOHN DOE,

d/b/a First Tower Construction; MARVIN R. HALL;

SM Roor; JoHN Dog, d/b/a SM Roof; ESTATE OF

Ross ScoGGins, Sr., deceased; TANDY INDUSTRIES,

Inc.; W & D ButLpInGc; JoHN Dog, d/b/a W & D

Building; WADE TRASH; JOHN Doe, d/b/a Wade Trash;

CoMPASS INDUSTRIES, INC.; ESTATE OF JACK DYER,

deceased; Roy L. FARRIS; NOLAND CONSTRUCTION Co.;

JoHN Dog, d/b/a Noland Construction Co.; MANNON

TRUCKING; JOHN Dog, d/b/a Mannon Trucking;

MoBILE WASTE CONTROLS; JOHN Dog, d/b/a Mobile

Waste Controls; TULSA TANK CLEANING; JOHN Dok,

d/b/a Tulsa Tank Cleaning; APARTMENT CONTAINER

SERVICE, INC.; CARNES BROTHERS CONSTRUCTION

COMPANY; CRAIN DiIsPpLAys & Exuisits, INc.; Dow

CHEMICAL COMPANY, d/b/a Dow Industrial Service;

EMPIRE ROOFING & INSULATION COMPANY; TOM

Farris, d/b/a Gene’s Septic Tank Service; ODEAN

GARRISON; LANGSTON CONTRACTORS, INC.; PETROLEUM

CONTRACTORS CORPORATION; VACUUM AND PRESSURE

TANK TRUCK SERVICES, INC.; GLENN E. Wynn, Jr.;

ANCHOR PAINT Mrc. Co.; AMRON, INC.; TULSA COoN-

STRUCTION & MANAGEMENT, INC.; PET CARE CEME-

TARY; JOHN Dog, d/b/a Pet Care Cemetary; J. B.

STALLINGS, d/b/a Stalling Construction Company;

BRIERLY PLUMBING TECHNOLOGIES; ROTO- ROOTER

SEWER SERVICE; O.K. TANK TRUCKS, INC.; AMERICAN

SEPTIC TANK; JOHN W. DIFFEE, deceased, d/b/a

Diffee Trash Services; WALTER C. DeppeE, deceased;

AMERON, INC., a Caifornia Corporation, —

Defendants.

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. CIV-94-820-K)

Before KELLY, McWILLIAMS, and HENRY, Circuit

Judges.

KELLY, Circuit Judge.

For the third time in as many years, we are faced with

the task of further defining and clarifying the relationship

between §§ 107 and 113 of the Comprehensive Envi-

ronmental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. §§ 9607 and 9313. See United

States v. Colorado & Eastern R.R., 50 F.3d 1530 (10th

Cir. 1995); Bancamerica Commercial Corp. v. Mosher

Steel of Kansas, 100 F.3d 792 (10th Cir.), as amended,

103 F.3d 80 (1996). Plaintiffs Sun Company and Texaco

brought this action under both §§ 107 and 113 for costs

expended in cleaning up a hazardous waste site. The dis-

trict court granted partial summary judgment in favor of

Defendants. The court held that as a matter of law

Plaintiffs were not permitted to bring a cause of action

under § 107, and that the limitations period for Plaintiffs’

contribution claims under § 113 began running on the

date they paid more than their fair share of the remedia-

tion costs. With this as the accrual date, the bulk of Plain-

tiffs’ contribution claims were time-barred. We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm in part and

reverse in part.

Background

The operative facts are not in dispute. An abandoned

limestone quarry on the south bank of the Arkansas

River in Tulsa County, Oklahoma was operated as a land-

fill from 1972 to 1976. During this time, hazardous mate-

rials were brought to the site, and eventually began to seep

into the soil, surface water, and ground water near the

site. In September 1984, the EPA placed the site on the

National Priority List. 40 C.F.R. Part 300, App. B.

Three years later the EPA issued a Record of Decision,

which selected a remediation for the site consistent with

the National Contingency Plan. 42 U.S.C. § 9605.

The EPA identified Plaintiffs, as well as several other

parties, as Potentially Responsible Parties (PRPs) who

had contributed to the waste at the site. After attempts

to negotiate a consent decree were unsuccessful, the EPA

issued a Unilateral Administrative Order, pursuant to

§ 106 of CERCLA, compelling Plaintiffs to pay the costs

of remediation for the site. 42 U.S.C. § 9606. Plaintiffs

agreed to perform the remediation in compliance with the

administrative order and the Record of Decision. Remedi-

ation activities began in January 1990, and were com-

pleted on or by August 29, 1991. Plaintiffs incurred

$6.2 million in cleanup costs.

Plaintiffs were able to identify other parties which they

believed had also contributed hazardous wastes to the

site, and brought this action against them on August 29,

1994, asserting a cost recovery action under CERCLA

§ 107 and a contribution action under CERCLA § 113.

The district court granted Defendants’ motion for sum-

mary judgment on the § 107 action, holding that PRP’s

such as Plaintiffs were not allowed to bring a cost recovery

action under § 107. Citing Colorado & Eastern, 50 F.3d

at 1536, the court held that regardless of the label used,

the action was for an equitable apportionment of costs

between PRPs and was thus a contribution action under

§ 113.

The limitations period for a contribution claim under

§ 113(g)(3) is three years. At issue is when the limita-

a ee TTT

tions period begins to run. Section 113(g)(3) provides

as follows:

No action for contribution for any response costs or

damages may be commenced more than three years

after—

(A) the date of judgment in any action under

this chapter for recovery of such costs or dam-

ages, 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

(relating to cost recovery settlements) or entry

of a judicially approved settlement with respect

to such costs or damages.

42 U.S.C. § 9613(g)(3). Plaintiffs incurred cleanup costs

in response to an EPA unilateral administrative order un-

der § 106, which is not one of the triggering events above.

The district court held that the fact that Plaintiffs’

action was not governed by one of these triggering events

did not guarantee them an unlimited time in which to

bring their suit. Rather, according to the district court,

this anomaly was the result of an inadvertent omission on

the part of Congress. Thus, the court turned to another

area of federal contribution law, and held that Plaintiffs’

cause of action accrued (and the limitations period began)

when they had paid more than their equitable share of the

cleanup costs. With this as the accrual date, the bulk of

Plaintiffs’ claims for contribution were time-barred. The

district court ruled that each payment should be treated

separately, however, so to the extent Plaintiffs could show

they made payments within three years of their filing of

the instant action, they would still be entitled to seek

contribution.

The district court also noted the uncertainty as to possi-

ble future costs, as the EPA’s remediation order provides

for thirty years of maintenance and review of the Site.

Thus, it declined to rule on Plaintiffs’ declaratory action

regarding apportionment of such future costs, and re-

quested further briefing on the issue. Such briefing has

been abated pending the outcome of this appeal.

Discussion

We review the grant of a motion for summary judgment

de novo, applying the same standard as the district court

pursuant to Fed. R. Civ. P. 56(c). Watts v. Atlantic

Richfield Co., 115 F.3d 785, 790 (10th Cir. 1997). Sum-

mary judgment is appropriate if there is no genuine issue

as to any material fact and the moving party is entitled to

judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c).

“If there is no genuine issue of material fact in dispute,

we must determine whether the substantive law was cor-

rectly applied by the district court.” Jd. (quoting Harvey

E. Yates Co. v. Powell, 98 F.3d 1222, 1229 (10th Cir.

1996). We review de novo the district court’s construction

of the relevant statutory provisions. United States v.

Wicklund, 114 F.3d 151, 153 (10th Cir. 1997).

In Colorado & Eastern, we attempted to clarify the

relationship between cost recovery actions under § 107

and contribution actions under § 113, specifically address-

ing who can recover under each provision. 50 F.3d at

1534-36. The original CERCLA legislation created only

the cost recovery mechanism of § 107, which makes cer-

tain enumerated parties (PRPs) “liable for (A) all costs of

removal or remedial action incurred by [government enti-

ties] ..., [and] (B) 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) and (B).

PRPs’ liability in cost recovery actions under § 107 is strict,

joint and several. Colorado & Eastern, 50 F.3d at 1535

(citing Farmland Indus. v. Morrison-Quirk Grain, 987 F.2d

1335, 1339 (8th Cir. 1993); County Line Inv. Co. v. Tin-

ney, 933 F.2d 1508, 1515 (10th Cir. 1991)). Defendants in

§ 107 actions could only escape joint and several liability

__and have cleanup costs apportioned between themselves

and other PRPs—if they could demonstrate that the harm

was divisible. This was usually impossible given the nature

of hazardous waste sites where wastes of varying degrees

of toxicity and migratory potential are mixed. Thus,

CERCLA, as originally enacted, left a PRP who was

singled out as a defendant in a cost recovery action with-

out any means of apportioning costs to other PRPs who

may have contributed much of the waste. Colorado &

Eastern, 50 F.3d at 1535. The courts generally responded

to this inequity by recognizing an implicit federal right to

contribution where PRPs who were subject to joint and

several liability incurred response costs in excess of their

pro rata share. Id.

Congress codified this implicit right to contribution

with the enactment of the Superfund Amendments and

Reauthorization Act of 1986 (SARA), which added

§ 113(f) (contribution ) and (g) (limitations periods) to

CERCLA’s scheme. We held that under this combined

statutory scheme, any action by a PRP who was a defend-

ant in a cost recovery action was a claim “by and between

jointly and severally liable parties for an appropriate divi-

sion of the payment one of them has been compelled to

make,” and was “the quintessential claim for contribu-

tion.” Id. at 1536. We reaffirmed this holding in Banc-

america Commercial, 100 F.3d at 800.

Plaintiffs argue that Colorado & Eastern is distinguish-

able. They claim that the Colorado & Eastern rule

is limited to those situations when the plaintiff PRP has

incurred cleanup costs pursuant to a civil action under

§§ 106 or 107, whereas Plaintiffs in this case incurred

cleanup costs without any such action. Thus, they argue,

they are not limited to a § 113 contribution claim, but

may also assert a cost recovery claim under § 107. We

are not persuaded.

The fact that Plaintiffs incurred cleanup costs by com-

plying with a unilateral administrative order, without forc-

ing the government to take them to court, does not change

their status as jointly and severally liable parties. They

concede that they generated wastes containing hazardous

substances that were transported to the Site. Thus, Plain-

tiffs’ claim is still by and between jointly and severally

liable parties, seeking the equitable apportionment of a

payment which Plaintiffs have been compelled to make,

and is still a claim for contribution. Bancamerica Com-

mercial, 100 F.3d at 800; Colorado & Eastern, 50 F.3d

at 1536.

II.

Plaintiffs’ attempted distinction of Colorado & Eastern

is not, however, without some merit. PRPs who have con-

tributed waste to a site are jointly and severally liable for

cleanup costs, and are limited to seeking contribution from

other PRPs.’ If those PRPs have never been defendants in

a civil action under §§ 106 or 107, however, it appears

that there is no statute of limitations governing their con-

tribution claims. Section 113(g)(3) establishes a three

year limitations period for contribution actions, but none

of the triggering events listed in that section will occur

unless the PRP incurs its cleanup costs pursuant to a

§ 106 or § 107 civil action brought by the government.

See Pinal Creek Group v. Newmont Mining Corp., 1997

WL 362462, at *7 (9th Cir. July 2, 1997). Thus, PRPs

1 We express no opinion on whether PRPs who assert their

innocence with regard to any waste at a site may be able to recover

all of their costs from other PRPs in an action under § 107. See

Redwing Carriers, Inc. v. Saraland Apts., 94 F.3d 1489, 1496 (11th

Cir. 1996) ; United Technologies v. Browning-Ferris Corp., 33 F.3d

96, 99-100 (1st Cir. 1994), cert. denied, 518 U.S. 1183 (1995);

Akzo Coatings, Inc. v. Aigner Corp., 30 F.8d 761, 764 (7th Cir.

1994).

who, like Plaintiffs here, incur cleanup costs pursuant to

a unilateral administrative order (or by a consent decree,

or in some cases, voluntarily) potentially have an unlim-

ited time in which to bring their contribution claims. The

district court reasoned that this anomaly was the result

of an inadvertent gap in the statute, and imported a trig-

gering event from another area of federal contribution

law. Plaintiffs argue that this was unnecessary. We agree.

As we made clear in Bancamerica Commercial, § 113(f)

did not create a new cause of action, nor did it create any

new liabilities. 100 F.3d at 800. “It is no more than a

‘mechanism for apportioning [CERCLA)]-defined costs.’ ”

Id. (quoting County Line, 933 F.2d at 1517). “Thus, of

necessity it must incorporate the liabilities set forth in

§ 107(a), as those are the costs to be equitably appor-

tioned.” Jd. See Pinal Creek, 1997 WL 362462, at *3

(“§ 107 created the right of contribution, [and] the ‘ma-

chinery’ of § 113 governs and regulates such actions”);

New Castle County v. Halliburton NUS Corp., 111 F.3d

1116, 1122 (3rd Cir. 1997) (“[S]ection 113 does not in

itself create any new liabilities; rather, it confirms the

right of a [PRP] under section 107 to obtain contribution

from other [PRPs].”).

2Section 113(f) of CERCLA governs contribution claims and

provides:

Any person may seek contribution from any other person

who is liable or potentially liable under section 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 Federal

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 determines are appropriate. Nothing in this subsection

shall diminish the right of any person to bring an action for

contribution in the absence of a civil action under section 9606

of this title or section 9607 of this title.

42 U.S.C. § 9613(f) (1).

_——————————

10a

] It is thus clear that “because § 113(f) incorporates the

liability provisions of § 107, . . . a § 113(f) action for

contribution is an action under § 107.” Bancamerica

Commercial, 100 F.3d at 801 (emphasis in original).

While a § 113 contribution action is not a “cost recovery”

action under § 107 as that action has been defined, be-

cause it does not impose strict, joint and several liability

on the defendant PRPs, it is an action for recovery of the

costs referred to in § 107. Under CERCLA’s statutory

scheme, therefore, a PRP’s contribution action seeks to

recover costs referred to in § 107 from PRPs whose liabil-

ity is defined by § 107, but is governed by the equitable

apportionment principles established in § 113(f). See

Pinal Creek, 1997 WL 362462, at *9 (“Because a claim

asserted by a PRP under § 107 requires the application of

§ 113, a PRP is limited to a contribution claim governed

by the joint operation of §§ 107 and 113.”).

The contours of all CERCLA claims by and between

PRPs who contributed waste to a site are thus governed by

the equitable contribution principles of § 113(f), and seek

to recover costs referred to in § 107. A close reading of

§ 113(g) makes it clear, however, that not all contribu-

tion claims have the same statute of limitations.

PRPs against whom the government has brought a civil

action under §§ 106 or 107 and who incur cleanup costs

will do so in one of two ways: either the suit will proceed

to judgment or the parties will enter into a settlement.

PRPs in either situation are expressly covered by the lan-

guage of § 113(f): “A person may seek contribution . . .

during or following any civil action under [§§ 106 or 107]

of this title.” In addition, whether by judgment or settle-

ment, the three year limitations period of § 113(g)(3)

will be triggered. If the suit proceeds to conclusion, the

limitations period begins running on the date of judgment.

42 U.S.C. § 9613(g)(3)(A). If the parties settle, the

limitations period begins running on the date of the ad-

lla

ministrative order embodying the settlement (for § 9622(g)

de minimis settlements or § 9622(h) cost recovery settle-

ments), or on the date of entry of a judicially approved

settlement. 42 U.S.C. § 9613(g)(3)(B). A judgment

has its own procedural safeguards, and CERCLA settle-

ments are subject to publication in the Federal Register

and a 30-day notice and comment period. 42 U.S.C.

§ 9622(i).

PRPs who have incurred cleanup costs in some other

way are also covered by the language of § 113(f):

“Nothing in this subsection shall diminish the right of any

person to bring an action for contribution in the absence

of a civil action under [§§ 106 or 107] of this title.” Such

PRPs, however, will not trigger the running of the limita-

tions period in § 113(g)(3), nor will their liability be

fixed with the procedural safeguards attendant to a civil

action.

Contrary to the district court’s ruling, however, this does

not create a gap in the statute of limitations, because

§ 113(g)(2) covers PRPs in this situation. It provides:

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 physical on-site construction of the re-

medial action....

42 US.C. § 9613(g)(2). As we previously noted, “a

§ 113(f) action for contribution is an action under § 107.”

Bancamerica Commercial, 100 F.3d at 801 (emphasis in

original). It is, by definition, an action for recovery of

the costs referred to in § 107. In this case, because no

previous action under §§ 106 or 107 has been filed with

respect to this site, Plaintiffs contribution action—while

governed by the equitable principles of § 113(f)—is the

“initial action” for recovery of such costs. Thus, Plaintiffs

12a

§ 113(f) contribution action is the “initial action for re-

covery of the costs referred to in section 9607 of this title,”

and must be commenced “within 6 years after initiation of

physical on-site construction of the remedial action.” 42

U.S.C. § 9613(g) (2) (B).

Defendants argue that § 113(g)(2) covers only the tra-

ditional “cost recovery” action under § 107—which im-

poses strict, joint and several liability on other PRPs and

which, as we have already held, is not available to Plain-

tiffs. We disagree because the language in question con-

tains no such limitation. By its own terms, § 113(g)(2)

covers the “initial action” for the recovery of “costs re-

ferred to” in § 107. There is no question that this lan-

guage covers a traditional § 107 cost recovery action

brought by the government or any other person who is

not a waste-contributing PRP. Nothing in that language,

however, excludes a contribution action, which also seeks

to recover an equitable portion of “costs referred to” in

§ 107, provided that particular contribution action is the

“initial action” to recover such costs.

Defendants also argue that the language of § 113(g)(3)

makes it clear that Congress expressly chose a three-year

limitations period for all contribution claims. Thus, they

argue, the six-year limitations period in § 113(g)(2)

cannot apply.* It is true that § 113(g)(3) is subtitled

“Contribution,” and provides that “[n]Jo action for contri-

bution for any response costs or damages may be com-

menced more than 3 years after—{the four enumerated

triggering events].” Contrary to Defendants’ arguments,

however, our construction of the statute is not inconsistent

with this language. A contribution claim which is the

“{nitial action,” and thus governed by the six-year limita-

8’ This rationale also was expressed in Ekotek Site PRP Commit-

tee v. Self, 881 F. Supp. 1516, 1522 n.2 (D. Utah 1995), but we

do not find exclusive reliance upon § 113(g)(3), see Ekotek, 881

F. Supp. at 1522-23, persuasive in these circumstances.

13a

tions period of § 113(g)(2), will not be commenced more

than three years after any of the four enumerated trigger-

ing events, because none of those triggering events will

ever occur.

By contrast, if a contribution action is not the initial

action, then by definition a previous action will have been

filed, and one of the four triggering events in § 113(g)(3)

will occur. In this way, Congress has provided an express

Statute of limitations to cover all CERCLA contribution

actions, regardless of how the PRPs in question incurred

their cleanup costs. In effect, there are two different types

of contribution actions under CERCLA, each governed

by the same equitable rules of § 113(f) and each seeking

to equitably apportion costs referred to in § 107, but

governed by different statutes of limitations. See Key

Tronic Corp. v. United States, 511 U.S. 809, 816 (1994)

(recognizing two “similar and somewhat overlapping”

contribution actions under §§ 107 and 113).

This construction of CERCLA is internally consistent

in its application of the language of the statute, and fol-

lows our precedents and the increasing body of law from

other circuits. Together, §§ 107 and 113 allow “any

person” who has incurred cleanup costs consistent with

the National Contingency Plan to recover some or all of

those costs from PRPs who were responsible for the

waste. A government entity (Federal, State or Indian)

or a party who did not contribute to the waste may re-

cover all of its expenditures in a traditional § 107(a)

“cost recovery” action against any PRP. Liability will be

Strict, joint and several. A PRP who contributed to the

waste may recover from other PRPs a portion of the costs

it expended in cleaning up the site in a contribution action

under § 113(f). Colorado & Eastern, 50 F.3d at 1536.

The liability of the other PRPs will be defined by § 107,

but under § 113(f), that liability will be several, and the

total cleanup costs—including responsibility for “orphan

l4a

shares” *—will be equitably apportioned among all the

PRPs, with the court being able to consider any factors

it deems relevant. 7d. If the PRP incurred its cleanup

costs pursuant to a civil action under §§ 106 or 107, it

will have three years from the date of judgment or settle-

ment in which to bring its contribution claim. 42 U.S.C.

§ 9613(g)(3). If the PRP incurred its cleanup costs in

some other way, without the attendant procedural safe-

guards of a judgment or CERCLA settlement, its contri-

bution action will be the initial action for recovery of

such costs. That PRP will have six years from the start

of remediation (or three years after completion of a re-

moval action) in which to file. 42 U.S.C. § 9613(g) (2).

This construction of §§ 107 and 113 also gives effect

to each section of the statute. See Colorado & Eastern,

50 F.3d at 1536 (rejecting a construction of the statute

that would render any part of § 113 meaningless). For

example, the Third Circuit expressed concern that if a

PRP were allowed to seek contribution under § 107, the

contribution defense of § 113(f)(2) could be circum-

vented, or read out of the statute. In re Reading

Co., 115 F.3d 1111, 1119 (3rd Cir. 1997). Under

§ 113(f)(2), any party who resolves its liability to the

government in an administrative or judicially approved

settlement has a defense against contribution claims

brought by other PRPs regarding any matters addressed

in the settlement. 42 U.S.C. § 9613(f)(2). To the ex-

tent that Reading would find fault with our construction

because it suggests the availability of a “§ 107 contribu-

tion action” for certain PRPs, we believe the Third Cir-

cuit’s concern reflects a misconception of the relationship

between §§ 107 and 113. Our construction of the statute

does not divide contribution actions into § 113 actions

and § 107 actions depending on the procedural posture

4“Orphan shares” are those shares of the waste responsibility

which are attributable to PRPs who either are insolvent or cannot

be located or identified. Pinal Creek, 1997 WL 362462, at *5.

a i a i anaes

15a

of the plaintiff PRP. On the contrary, our holding merely

recognizes that while all actions by and between jointly

and severally liable PRPs are “actions under § 107” for

purposes of liability, they are all still contribution actions

governed by § 113(f). By its terms, the contribution de-

fense embodied in § 113(f)(2) is applicable to any claim

for contribution. Thus, regardless of whether the plaintiff

PRP incurred costs pursuant to a civil action or through

some other proceeding, any defendant PRP who has re-

solved its liability to the government in an administrative

or judicially approved settlement may invoke the contribu-

tion defense contained in § 113(f) (2).

PRPs who have contributed to the waste at a site may

recover from other PRPs that portion of their cleanup

costs which exceeds their pro rata share. Such an action

is “the quintessential claim for contribution.” Colorado

& Eastern, 50 F.3d at 1536, and is governed by the equi-

table principles of §113(f). A PRP who incurred

cleanup costs pursuant to a civil action under §§ 106 or

107 will have its contribution claim governed by the

three year limitations period set out in § 113(g)(3). A

PRP who incurred cleanup costs in some other way, such

as pursuant to an EPA unilateral administrative order,

will have its contribution claim governed by the limita-

tions period in § 113(g)(2), which governs “initial ac-

tions” for recovery of such costs. Accordingly, we

AFFIRM the district court’s dismissal of Plaintiffs’ tradi-

tional cost recovery action under § 107. We REVERSE

the district court with respect to Plaintiffs’ § 113(f) con-

tribution claims, and REMAND for further proceedings.

16a

APPENDIX B

[Filed Mar. 20, 1996]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

No. 94-C-820-K

SuN CoMPANY, INC. (R&M),

a Delaware corporation,

and TExACo, INC.,

a Delaware corporation,

Plaintiffs,

Vs.

BROWNING-FERRIS, INC.,

a Delaware corporation, et al.,

Defendants.

ORDER

Now before this Court is the motion for summary judg-

ment by Defendant Group II (“Defendants”) against

Plaintiffs Sun Company, Inc. and Texaco, Inc. (“Plain-

tiffs”). Plaintiffs brought this action pursuant to the Com-

prehensive Environmental Response, Compensation, and

Liability Act (“CERCLA”), 42 U.S.C. § 9601, ef seq.,

1 Defendant Group II members include: Atlantic Richfield Com-

pany, Bankoff Oil Co., Inc., Beverage Products Corp., Borg Indus-

trial Group, Inc., d/b/a American Container Services, Browning-

Ferris, Inc., Consolidated Cleaning Service Co., Cowen Construc-

tion, Charles Forhan, d/b/a D & W Exterminating, National Tank

Co., Oil Capital Trash Services, Inc., Peevy Construction Co., Inc.,

Public Service Co. of Oklahoma, Steve Richey d/b/a Richey Refuse

Service, City of Sand Springs, John D. Shipley, Monte Shipley,

Shipley Refuse, Robert E. Sparks, d/b/a Tulsa Industrial Service,

Sun Chemical Corporation, Union Carbide Corp., and Waste Man-

agement of Oklahoma, Inc., successor to Tulsa Industrial Disposal

Services.

17a

for costs expended by Plaintiffs in response to an order

by the Environmental Protection Agency ( “EPA”) to

perform remediation at the Compass landfill site (“the

Site”), pursuant to section 106 of CERCLA, 42 U.S.C.

§ 9606. Plaintiffs also seek a declaratory judgment de-

claring their right to recover past and future response

costs attributable to cleanup of the Site. In addition,

Plaintiffs assert state law claims of contribution and/or

indemnity against Defendants.

I. Facts

The Site is a piece of property situated on the south

bank of the Arkansas River in Tulsa County. It is an

abandoned limestone quarry that was operated as a per-

mitted landfill from 1972 to 1976. During the time of

its operation, material containing hazardous substances

within the meaning of CERCLA section 101(14), 42

U.S.C. § 9601(14), were delivered to the Site. This ma-

terial began to be released into the soil, surface water,

and groundwater near and beneath the Site. The EPA

found amounts of hazardous substances in the soil and

groundwater beneath the Site, including chemicals listed

as hazardous substances within the meaning of section

101(14) of CERCLA, 42 U.S.C. § 9601(14).

In September 1984, the EPA placed the Site on the

National Priority List. 40 C.F.R. Part 300, App. B. On

September 29, 1987, the EPA issued a Record of Deci-

sion (“ROD”), which selected a remedy for the site that

was deemed by the EPA and the State of Oklahoma to be

consistent with CERCLA and the National Contingency

Plan (“NCP”), 33 U.S.C. § 1321(c); 42 U.S.C. § 9605;

40 C.F.R. Part 300, et seg. The remedy selected by the

EPA specified a “RCRA” quality cap or cover to be

placed over the contaminated material, with a synthetic

liner between the cap and the contaminated materials to

prevent seepage or drainage of rainwater, installation and

monitoring of wells for purposes of compliance monitor-

ing of groundwater, site grading, diversion of surface

18a

water, air emissions monitoring, installation of fences and

signs along the perimeter of the cap, monitoring of the

Site for a period of 30 years to ensure that no significant

contamination concentrations migrate from the Site, and

if necessary, collection and on-site treatment of contami-

nated groundwater. On May 31, 1989, in a Unilateral

Administrative Order styled, In the Matter of Braniff,

Inc., et al., United. States Environmental Protection

Agency, Region 6, Dallas, Texas, Docket Number

CERCLA VI-05-89, the EPA ordered Plaintiffs, pursuant

to section 106 of CERCLA, 42 U.S.C. §9606, to remedi-

ate the Site as set forth in the ROD. Plaintiffs Sun and

Texaco agreed to perform the remediation in compliance

with the Administrative Order and ROD. Plaintiffs began

remediation activities in January 1990. Response actions

were completed on or by August 29, 1991. Plaintiffs in-

curred response costs as a result of the Administrative

Order.

Plaintiffs filed the instant action on August 29, 1994,

seeking to recover from Defendants the costs that Plain-

tiffs expended in response to the Administrative Order and

seeking a declaratory judgment allocating liability for past

and future response costs.

II. Discussion

A. Summary Judgment Standard

Summary judgment, pursuant to Fed. R. Civ. P. 56,

is appropriate where “there is no genuine issue as to any

material fact” and “the moving party is entitled to judg-

ment as a matter of law.” Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986); Windon Third Oil and Gas

v. Federal Deposit Insurance Corporation, 805 F.2d 342,

345 (10th Cir. 1986), cert. denied, 480 U.S. 947

(1987). The Supreme Court explains:

[T]he plain language of Rule 56 (c) mandates the

entry of summary judgment, after adequate time for

Se ay eee ee ee ey ee

19a

discovery and upon motion, against a party who fails

to make a showing sufficient to establish the exist-

ence of an element essential to that party’s case, and

on which that party will bear the burden of proof

at trial.

Celotex, 477 U.S. at 322. “The questions of statutory con-

struction and legislative history raised herein present legal

questions properly resolved by summary judgment.” State

of Oklahoma v. Weinberger, 741 F.2d 290, 291 (10th

Cir. 1983), cert. denied sub nom Farrah v. United States,

466 U.S. 971 (1984) (citing Union Pacific Land Re-

sources Corporation v. Moench Investment Company,

Ltd., 696 F.2d 88 (10th Cir.), cert. denied, 460 U.S.

1085 (1982) ).

B. CERCLA Causes of Action

The first issue is which causes of action are available

to Plaintiffs under CERCLA, as amended by the Super-

fund Amendment and Reauthorization Act of 1986

(“SARA”), 100 Stat. 1613 (1986). In United States vy.

Colorado & Eastern Railroad, 50 F.3d 1530 (10th Cir.

1995), the Tenth Circuit explained that CERCLA pro-

vides two types of legal actions by which parties can

recoup some or all of their costs associated with hazard-

Ous waste cleanup: cost recovery actions under CERCLA

section 107(a), 42 U.S.C. § 9607(a), and contribution

actions under CERCLA section 113(f), 42 U.S.C.

§ 9613(f). Id. at 1535. Plaintiffs assert causes of action

under both sections; Defendants contend that Plaintiffs

can only bring a section 113(f) contribution action.

Although the circuits are divided, the Tenth Circuit has

decided this question, and this Court must follow the

precedent of the Tenth Circuit regardless of this Court’s

views concerning the advantages of the precedent of our

sister circuits. United States v. Spedalieri, 910 F.2d 707,

709 n.2 (10th Cir. 1990). In Colorado & Eastern, the

Tenth Circuit held that “claims between [Potentially Re-

20a

sponsible Parties (“PRPs”)] to apportion costs between

themselves are contribution claims pursuant to § 113 re-

gardless of how they are pled.” Colorado & Eastern Rail-

| road, 50 F.3d at 1539. Therefore, the only cause of

action available to a PRP seeking to recover from another

PRP for cleanup costs is a § 113(f) contribution action.

Id. at 1536. See also Bancamerica Commercial Corp. v.

Trinity Industries, 900 F. Supp. 1427, 1450 (D. Kan.

1995) (“The Tenth Circuit recently held that when one

potentially responsible party sues another to recover ex-

penditures incurred in cleanup and remediation, the claim

is one for contribution and is controlled by § 113(f).”)

(Citing Colorado & Eastern).

There is no genuine issue as to the classification of

Plaintiffs as PRPs under CERCLA section 107(a), 42

U.S.C. § 9607(a). Although Plaintiffs apparently dispute,

parenthetically, that they are PRPs (Plaint. Resp. at 5),

they concede that they generated wastes containing haz-

ardous substances that were transported to the Site. (See

Plaint. Resp. at 4 (not disputing Defendants’ statement

of undisputed material fact No. 7).)* “Generator” or

“arranger” liability under section 107 (a) (3) of CERCLA

is imposed on

any person who by contract, agreement, or otherwise

arranged for disposal or treatment, or arranged with

a transporter for transport for disposal or teratment,

of hazardous substances owned or possessed by such

person, by any other party or entity, at any facility

or incineration vessel owned or operated by another

party or entity and containing such hazardous sub-

stances....

42 U.S.C. § 9607(a) (3).

2 See also EPA’s First Amended Unilateral Order, attached at

Def. Br. Supp. Summ. J. Ex. A at 9-11 (classifying Sun and

Texaco as responsible parties pursuant to section 107 of CERCLA) ;

Plaintiffs’ Allocation Sheet, attached at Def. Br. Supp. Summ. J.

Ex. C (listing selves as PRPs); EPA Allocation Sheet, attached

at Def. Br. Supp. Summ. J. Ex. D (listing Plaintiffs as PRPs).

—————E——

2la

Courts have construed this section broadly in holding

generators liable under CERCLA. See United States v.

Hardage, 750 F. Supp. 1444, 1458 (W.D. Okla. 1990);

United States v. Aceto Agricultural Chemicals Corp., 872

F.2d 1373, 1380 (8th Cir. 1989) (noting that courts

have concluded that a liberal judicial interpretation of

arranger liability provision is consistent with CERCLA’s

remedial statutory scheme). A generator need not have

selected the site; indeed, courts have held defendants “ar-

ranged for” disposal of wastes at a particular site even

when defendants did not know the substances would be

deposited at that site or in fact believed they would be

deposited elsewhere. See id. at 1381; United States v.

Ward, 618 F. Supp. 884, 895 (E.D. N.C. 1985); State

of Missouri v. Independent Petrochemical Corp., 610 F.

Supp. 4, 5 (E.D. Mo. 1985); United States v. Wade, 577

F. Supp. 1326, 1333 n.3 (E.D. Pa. 1983).

Under CERCLA, a party who generates hazardous sub-

stances and arranges for their disposal is strictly liable for

all costs of remediating environmental damages at the site

where the substances ultimately are deposited, regardless

of whether the party was at fault or whether the sub-

stance actually caused or contributed to any damages.

See St. Paul Fire and Marine Ins. v. Warwick Dyeing,

26 F.3d 1195, 1197-98 (1st Cir. 1994). Since Plaintiffs

admit generating the substances that were transported and

ultimately deposited at the Site, and since Plaintiffs’ wastes

were by their own estimation present at the Site at the

time of the cleanup, and given the fact that Plaintiffs have

proffered no evidence, nor even a cogent argumnet, con-

trary to a finding that they are PRPs, this Court finds

that Plaintiffs are PRPs. See Cook v. Jackson Nat. Life

Ins. Co., 844 F. Supp. 1410, 1412 (D.Colo. 1994) (hold-

ing that party opposing summary judgment motion “must

produce specific facts showing that there remains a gen-

uine issue of material fact for trial;” mere assertions not

enough to survive summary judgment) (citing Branson v.

Price River Coal Co., 853 F.2d 768, 771-72 (10th Cir.

ida ii

22a

1988)).° Therefore, since the instant CERCLA action

involves PRPs seeking to recover from other PRPs for

cleanup costs, Plaintiffs are limited to a contribution ac-

tion pursuant to CERCLA section 113(f). See Colorado

& Eastern Railroad, 50 F.3d at 1536, 1539.

Plaintiffs contend that under Key Tronic v. United

States, 114 S.Ct. 1960 (1994), they are entitled to bring

both a CERCLA section 107(a) action as well as a sec-

tion 113(f) action, and that Colorado & Eastern can be

distinguished from the instant case. In Key Tronic the

Court considered whether CERCLA permitted the recov-

ery of attorney fees; the Court did not focus on the exclu-

sivity of section 113 actions in disputes between PRPs.

The Court indicated that with the passage of SARA, both

sections 107 and 113 provide a cause of action for private

parties seeking to recover cleanup costs. “[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.” Id. at 1966. Plaintiffs con-

tend that Key Tronic supports their argument that both

sections 107 and 113 provide viable causes of action in

the instant case.

This Court does not believe Colorado & Eastern is

distinguishable from the instant case; therefore, Colorado

& Eastern controls.* Plaintiffs point to the fact that Key

Tronic involved a claim for response costs incurred inde-

pendently of a civil action, as in the instant litigation;

whereas, Colorado & Eastern involved claims asserted

8 Since Defendants’ status as PRPs is a condition precedent to

recovery by Plaintiffs under CERCLA, it is assumed for purposes

of this order that Defendants are PRPs as well.

* Moreover, this Court presumes that Colorado & Eastern is con-

sistent with Key Tronic which was decided nine months prior to

Colorado & Eastern. See also United Technologies Corp. v. Brown-

ing-Ferris Industries, 33 F.3d 96, 108 n.12 (1st Cir. 1994) (noting

that its holding that a PRP was limited to a § 113(f) contribution

action was consistent with Key Tronic), cert. denied, 115 S.Ct.

1176 (1995).

23a

subsequent to a civil action. Without pointing to language

by either the Supreme Court or Tenth Circuit, Plaintiffs

argue that when, as here, a party incurs response costs

prior to a civil action, it may bring either a section 107

or 113 action (or both) against other PRPs; whereas,

when a party incurs response costs subsequent to a civil

action, it may only bring a section 113 action. The Tenth

Circuit, however, makes no such distinction. It states sim-

ply, “Whatever label [Appellee] may wish to use, its claim

remains one by and between jointly and severally liable

parties for an appropriate division of the payment one of

them has been compelled to make.” Colorado & Eastern,

50 F.3d at 1536. Noting that the two parties were PRPs,

the Court held that any claim that would reapportion costs

between them “is the quintessential claim for contribu-

tion.” Id. at 1536 (citing Restatement (Second) of Torts

§ 886A and Amoco Oil Co. v. Borden Inc., 889 F.2d 664,

672 (5th Cir. 1989)).° Since the instant case involves

claims between PRPs to apportion costs between them-

selves, Plaintiffs are confined to bringing a section 113(f)

contribution action, regardless of how they plead their

claims. As a Utah district court explained, it is the parties’

status as PRPs that limits Plaintiffs to a section 113 con-

tribution claim, in accordance with Colorado & Eastern.

See Ekotek Site PRP Committee v. Self, 881 F. Supp.

1516, 1521 (D. Utah 1995) (holding that cost recovery

action by one PRP against another PRP is limited to a

section 113(f) contribution action and declining to dis-

tinguish Colorado & Eastern based on whether claimant

had voluntarily incurred response costs).

5 A civil action clearly is not a precondition for bringing a con-

tribution action, either under CERCLA, see § 113(f)(1) (“Nothing

in this subsection shall diminish the right of any person to bring

an action for contribution in the absence of a civil action under

section 9606 of this title or section 9607 of this title.’’), or common

law, see Restatement (Second) of Torts § 886A.

24a

C. Statute of Limitations for CERCLA Action

Neither Plaintiffs nor Defendants dispute that the ap- °

plicable statute of limitations for a section 113 contribu-

tion action is three years. See 42 U.S.C. § 9613(g) (3).

The issue in dispute is when the statute of limitations be-

gins to accrue. Both parties agree that under the literal

terms of the statute, no triggering event has yet occurred

in the present case. The statute of limitations section gov-

erning contribution actions provides as follows:

No action for contribution for any response costs or

damages may be commenced more than three years

after—

(A) the date of judgment in any action un-

der this chapter for recovery of such costs or

damages, or

(B) the date of an administrative order un-

der section 9622(g) of this title (relating to de

minimis settlements) or 9622(h) of this title

(relating to cost recovery settlements) or entry

of a judicially approved settlement with respect

to such costs or damages.

42 U.S.C. § 9613(g)(3). Plaintiffs incurred cleanup costs

in response to an EPA § 106 Administrative Order, not

one of the triggering events listed above.

Therefore, the question is whether the statute of limita-

tions has yet to accrue—and as Defendants point out, may

never accrue—or whether this Court must supply a trig-

gering event for accrual of the statute of limitations. One

district court in this circuit has held that when a PRP.

incurs response costs as a result of an EPA consent order,

that PRP’s subsequent contribution action is not subject to

the statute of limitations because the consent order is not

one of the four triggering events under CERCLA section

113(g)(3). Ekotek Site PRP Committee v. Self, 881

F. Supp. 1516, 1522-24 (D. Utah 1995). See also Gould,

iad sehaibaialte

bs tli a Peed

‘

25a

Inc. v. A&M Battery and Tire Service, 901 F. Supp. 906,

914-15 (M.D. Pa. 1995) (holding that since none of the

four § 113(g)(3) triggering events had occurred, plain-

tiff's contribution claim was not time barred).

This Court disagrees. Such a result would provide a

loophole at odds with the purposes of CERCLA. The

structure of the statute indicates a legislative intent to

restrict cost recovery and contribution actions to definite

periods of time. See 42 U.S.C. § 9613(g). No public

policy interest consistent with CERCLA would be served

by allowing certain PRPs unlimited time in which to bring

a contribution action simply because they happen to incur

cleanup costs in response to a particular species of gov-

ernmental prodding.* Rather, Congress’ failure to supply

a triggering event for cases such as the instant one—

where cleanup costs are incurred as a result of an EPA

§ 106 administrative order—appears to be an inadvertent

omission. This Court does not discern an intent by Con-

gress to allow PRPs in Plaintiffs’ circumstances to keep

other PRPs on the hook indefinitely. Indeed, there are

strong public policy interests that militate against allowing

parties, such as Plaintiffs, who do not enter into a settle-

ment with the EPA but incur response costs as a result

of prodding by an EPA administrative order, to evade a

Statute of limitations on subsequent contribution actions.

Since the CERCLA statute does not provide a triggering

event for cases such as the instant one, this Court must

supply one, looking to federal common law for guidance.

See Baker v. Bd. of Regents, Kansas, 991 F.2d 628, 632

(10th Cir. 1993) (“Federal law controls questions relat-

* Plaintiffs’ remediation of the Site can hardly be characterized

as voluntary. As Plaintiffs acknowledge, a party receiving an EPA

§ 106 order “is faced with little choice but to comply.” (Plaint.

Resp. at 3.) Challenges to ordered remedial action are limited under

the statute, and penalties for noncompliance are severe. See 42

U.S.C. § 9606(b).

26a

ing to accrual of federal causes of action.”) (citing

Newcomb v. Ingle, 827 F.2d 675, 678 (10th Cir. 1987) ).

While the Tenth Circuit has not established a federal com-

mon law rule for the accrual of contribution actions, the

Third Circuit has. This Court adopts that standard:

Absent a judgment, a cause of action for contribution does

not arise until the party seeking contribution has paid

more than her fair share of a common liability. Sea Land

Service, Inc. v. United States, 874 F.2d 169, 171 (3rd

Cir. 1989). See also Bradford v. Indiana & Michigan

Elec. Co., 588 F. Supp. 708, 714 (D. W.Va. 1984)

(quoting Northwest Airlines, Inc. v. Glenn L. Martin

Co., 161 F. Supp. 452, 458 (D. Md. 1958)). See gen-

erally, Maurice T. Brunner, Annotation, When Statute of

Limitations Commences to Run against Claim for Con-

tribution or Indemnity Based on Tort, 57 ALR 3d 867,

877 (“[T]he cause of action for contribution accrues—

becomes a right enforceable in a court action—when one

of the joint tortfeasors pays more than his proportionate

share of the damages. On the date of such payment the

inchoate claim ripens into maturity, and whatever the

applicable period of limitations, the time then starts to

run.”).

D. Statute of Limitations for State Law Cause of Action

Again there is a dispute as to the applicable statute of

limitations for a contribution action brought under Okla-

homa law. Although section 832 of title 12 of the Okla-

homa Statutes provides a right of contribution among two

or more persons who become jointly or severally liable

in tort for the same injury to persons or property, there

is no provision within title 12 or any other statute that

establishes a statute of limitations for contribution actions.

Nevertheless, section 95(2) of title 12 establishes a three-

year statute of limitations for “an action upon a liability

created by statute other than a forfeiture or penalty.”

Since Plaintiffs bring a contribution claim under a statute

—Okla. Stat. tit. 12, § 832 (1996)—their action falls

———_araE

27a

under the terms of the section 95(2) limitation provision.’

Both parties agree that Oklahoma has the same accrual

rule for contribution actions as that described above under

federal common law. See Wilson v. Crutcher, 56 P.2d

416, 417 (Okla. 1936) (“[T]he statute of limitations does

not begin to run against a claim for contribution until the

plaintiff has discharged the common debt, or paid more

than his share of it.”). Therefore, Plaintiffs’ state law

action for contribution is under the same time limitations

as their CERCLA contribution action: three years from

the point in time at which Plaintiffs paid more than their

fair share of the response costs.

E. Is Plaintiffs’ Entire Contribution Claim Time Barred?

There remains the question of whether the three-year

statute of limitations bars Plaintiffs’ entire claim if they

filed the instant action more than three years after they

paid their pro rata share, or whether they are simply

barred from recovering any costs paid prior to the three-

year cutoff. While the law in the Tenth Circuit and in

Oklahoma is not clear on this question, state courts in

Kansas, Kentucky and Wisconsin have employed the fol-

lowing rule: Where one of multiple co-obligors, between

whom there may be contribution, makes partial payments

on the obligation, the_statute of limitations begins to run

as to such payments from the time he pays the creditor

more than his proportion of the debt, and runs separately

on each payment made after the co-obligor pays his fair

* Plaintiffs contend that the appropriate statute of limitations is

provided by a residual catch-all provision in title 12 which estab-

lishes a five-year limitations period for “[a]n action for relief, not

hereinbefore provided for... .” Okla. Stat. tit. 12, §95(9) (1996).

Since section 95(2) clearly provides the statute of limitations in

the instant case, the residual provision does not apply. Defendants

argue, inter alia, that contribution claims are governed by the

same limitation period as the underlying cause of action, citing

Gilliland v. Snedden, 159 P.2d 734 (Okla. 1944). This Court does

not read Gilliland to stand for that proposition.

28a

share, and is computed separately on each payment from

the date upon which it is made. See Kee v. Lofton, 737

P.2d 55, 59 (Kan. App. Ct. 1987) (citing Robinson v.

Jennings, 70 Ky. 630 (1870)); Bushnell v. Bushnell, 46

N.W. 442 (Wis. 1890). In other words, if one co-obligor

has made partial payments aggregating more than his

share of the debt, but the statute of limitations has run

as to some of those payments, he is entitled to judgment

against his co-obligors for the full amount of payments on

which the statute has not run, provided such sum is less

than the defendant co-obligor’s proportion of the debt,

and the payments on which the statute has run equal or

exceed the claimant’s proportion. See 18 Am. Jur. 2d

Contributions § 104 (1964).

This Court finds this rule just and equitable under the

instant circumstances and adopts it for determining what

expenditures by Plaintiffs are within the period of limita-

tions. Although it appears that the bulk of Plaintiffs’

claims for contribution are time-barred, Plaintiffs are en-

titled to recover by contribution any payments made

within three years of their filing of the instant action,

provided they paid their fair share prior to that date.

F. Declaratory Judgment

Plaintiffs seek, inter alia, a declaratory judgment allocat-

ing liability for past and future response costs. Defendants

argue that Plaintiffs are not entitled to a declaratory judg-

ment because they are limited to a section 113 contribu-

tion action, and CERCLA section 113(g)(2) provides

for declaratory relief only in section 107 actions. Defend-

ants are only partially correct.

Since this Court has determined that Plaintiffs are

limited to a section 113 contribution action, they are

not entitled to a declaratory judgment under section

113(g)(2). However, this Court retains inherent author-

ity, absent an express statutory command to the contrary,

to fashion appropriate remedies in civil suits over which

29a

it has jurisdiction. See 28 U.S.C. § 2201(a).* This Court

may enter a declaratory judgment on a question if it pre-

sents a definite and concrete controversy, touching the

legal relations of parties having adverse legal interests.

The controversy “must be . . . real and substantial . . .

admitting of specific relief through a decree of a con-

clusive character.” Kunkel v. Continental Casualty Co.,

866 F.2d 1269, 1273-74 (10th Cir. 1989); Maryland

Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270,

273 (1941); Aetna Life Ins. Co. v. Haworth, 300 U.S.

227, 240-41 (1937). Cf. U.S. National Bank of Oregon

v. Independent Insurance Agents, 113 S.Ct. 2173, 2178

(1993) (“The exercise of judicial power under Art. III

of the Constitution depends on the existence of a case or

controversy,” and “a federal court [lacks] the power to

render advisory opinions.” ).

Given the circumstances and facts alleged in the in-

Stant case, there is no doubt that the question of what

rule governs apportionment of response costs between par-

ties presents a real and substantial controversy, touching

the legal relations of parties having adverse legal inter-

ests.” Although it is not clear what, if any, expenses Plain-

® The Declaratory Judgment Act provides:

In a case of actual controversy within its jurisdiction, . . . any

court of the United States, upon the filing of an appropriate

pleading, may declare the rights and other legal relations of

any interested party seeking such declaration, whether or not

further relief is or could be sought. Any such declaration shall

have the force and effect of a final judgment or decree and shall

be reviewable as such.

28 U.S.C. § 2201(a).

® Several circuits have considered whether CERCLA claims, which

by their nature are often speculative, support a declaratory judg-

ment. The Sixth Circuit noted that it is not essential that the

threatened injury be absolutely immediate and real; only sufficiently

immediate and real. Kelley v. E.l. DuPont De Nemours and Co.,

17 F.3d 836, 845 (6th Cir. 1994). See also Emory v. Peeler, 756

F.2d 1547, 1552 (11th Cir. 1985) ( holding that a party seeking

30a

tiffs incurred within the limitations period, Plaintiffs allege

that they “will continue to incur response costs that are

consistent with the NCP with respect to the site to abate

the alleged release or threatened release of hazardous sub-

stances into the environment which has occurred or may

occur from the site.” (Third Amend. Compl. 4 107.)

The remedy required by the EPA involves likely future

expenditures, including continuing monitoring and possible

future treatment. See discussion of required remediation

supra page 2-3.

Therefore, since the question of the apportionment

scheme for past and future response costs does present a

real controversy, and a ruling will clarify a legal question

at issue and mitigate uncertainty, a declaratory judgment

is appropriate. See Kunkel, 866 F.2d at 1275. However,

given the uncertainty as to the amount of response costs

incurred within the limitations period, and the amount

likely to be incurred in the future, this Court need not,

indeed it cannot, issue a ruling defining the precise con-

tours of an apportionment scheme. The Tenth Circuit has

explained that the declaratory relief granted need not

entirely dispose of the matter; necessary and proper relief

based upon factual disputes not yet resolved may be

sought at a later time. Kunkel, 866 F.2d at 1274 (citing

28 U.S.C. §§ 2201-02).

Insofar as this Court can clarify, to some degree, the

legal relations between the parties, it holds as follows.

Since Plaintiffs are limited to a section 113 contribution

action, they are not automatically entitled to seek joint

and several liability from Defendants, as are section 107

plaintiffs; rather, Plaintiffs are limited to seeking Defend-

ants’ equitable share. However, given the uncertainty as

to the amount of claims available to Plaintiffs, it is not

presently possible to determine what equitable factors

declaratory relief in a CERCLA action must allege facts to support

a likelihood that his opponent’s injurious conduct has continued or

will be repeated in the future).

3la

should govern the apportionment of response costs. See

42 U.S.C. § 9613(f)(1) (“In resolving contribution

claims, the court may allocate response costs among the

liable parties under such equitable factors as the court

determines are appropriate.”) The Tenth Circuit has ex-

plained that a district court “has considerable discretion

in apportioning equitable shares of response costs. It can

allocate the response costs among the liable parties using

any equitable factors it deems appropriate.” FMC Corp.

v. Aero Indust., 998 F.2d 842, 846 (10th Cir. 1993).

Analogously, this Court must consider equitable factors

presented by the present case in determining what precise

apportionment scheme to apply. Assuming that Plaintiff

paid their fair share prior to the initiation of the three-

year limitations period, the question remains whether

Plaintiffs may impose joint and several liability against

all Defendants for all costs incurred after that date, in

which case the Defendants would bear the burden of

splitting their share, or whether Plaintiffs are limited to

recovering from each Defendant on a several basis.”

For the same reasons, it is premature to rule on the

appropriate credit rule. As Judge Brett observed, a dis-

trict court “has the discretion to apply the credit rule

which under the facts of the instant case will best achieve

the overriding purpose and objectives of CERCLA.” At-

10 Several district courts that have addressed this question have

limited plaintiffs pursuing a section 113 contribution action to

obtaining several liability against defendants. See Plaskon Elec-

tronic Materials v. Allied-Signal, 904 F. Supp. 644, 651 (N.D. Ohio

1995) (noting that liability under § 107(a) is joint and several,

while liability under § 113(f) is merely several) (citing Kaufman

& Broad-South Bay v. Unisys Corp., 868 F. Supp. 1212, 1213-15

(N.D. Cal. 1994)) ; Gould Inc. v. A & M Battery and Tire Service,

901 F. Supp. 906, 913 (M.D. Pa. 1995) (“Since liability under a

§ 113 action is several, not joint and several, each party is only

responsible for their proportionate share of the harm caused at the

[CERCLA site].”). Nevertheless, this Court may devise an appor-

tionment scheme based on equitable principles suitable to the cir-

cumstances of the instant case.

32a

lantic Richfield Co. v. American Airlines, 836 F. Supp.

763, 766 (N.D. Okla. 1993). Since the actual amount

in controversy is unclear, it is not possible to determine

which credit rule—the proportionate rule or the pro tanto

rule—would be most equitable and efficacious in the in-

stant case.

IiI. Conclusion

Defendants’ motion for summary judgment is granted

in part and denied in part. Plaintiffs’ first, second and

third claims for relief under CERCLA section 107(a) are

dismissed. Plaintiffs may pursue a CERCLA 113(f) con-

tribution claim and state law contribution claim as to

those response costs incurred within three years of the

filing of the instant action—that is, on or after August 30,

1991. This Court reserves ruling on Plaintiffs’ request

for declaratory relief regarding the nature of Defendants’

liability pending the submission of supplemental briefs by

both parties detailing response costs incurred on or after

August 30, 1991, as well as those costs likely to be in-

curred in the future, and discussing appropriate equitable

factors that the Court should consider in deciding the na-

ture of Defendants’ liability and the appropriate credit

rule. Parties are directed to file supplemental briefs within

30 days of the filing of this Order.

IT IS SOQ ORDERED THIS 19 DAY OF MARCH,

1996.

/s/ Terry C. KERN

TERRY C. KERN

United States District Judge

33a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

No. 94-C-820-K

SUN COMPANY, INC. (R&M),

a Delaware corporation,

and TEXxAco, INc.,

a Delaware corporation,

Plaintiffs,

vs.

BROWNING-FERRIS, INC.,

a Delaware corporation, et al.,

Defendants.

May 20, 1996, Decided

May 21, 1996, FILED

Now before this Court is the motion by Plaintiffs Sun

Company, Inc. and Texaco, Inc. for reconsideration of

this Court’s Order of March 21, 1996. Plaintiffs’ motion

raises several issues of contention. Plaintiffs disagree with

this Court’s ruling that they are not entitled to bring an

action under CERCLA § 107, 42 US.C. § 9607. And

with respect to their remaining cause of action under

34a

CERCLA § 113, 42 U.S.C. § 9613, Plaintiffs take excep-

tion with the accrual rule devised by the Court for the

statute of limitations.’

At the outset, this Court reaffirms its ruling that the

Tenth Circuit has unequivocally decided the question of

whether a CERCLA § 107 action is available to PRPs,

such as Plaintiffs, seeking to reapportion response costs

among other PRPs. In United States v. Colorado & East-

ern Railroad, 50 F.3d 1530, 1539 (10th Cir. 1995), the

Tenth Circuit foreclosed § 107 actions to such claimants,

and this Court is duty-bound to follow the circuit, notwith-

standing Plaintiffs’ public policy arguments to the con-

trary. United States v. Spedalieri, 910 F.2d 707, 709 n.2

(10th Cir. 1990).

Plaintiffs are therefore limited to a CERCLA § 113

contribution action. This Court held that the three-year

statute of limitations for Plaintiffs’ § 113 contribution

action accrued once they had paid more than their fair

share of the common liability. Plaintiffs disagree. They

advance an interpretation of CERCLA whereby the stat-

ute of limitations potentially would never accrue against

PRPs, such as Plaintiffs, who incur response costs pur-

suant to a § 106 unilateral administrative order. In other

words, under Plaintiffs’ literal construction of the statute,

CERCLA provides for a three-year statute of limitations

for contribution actions that in some instances never begin

to run.

1 Plaintiffs also suggest in a footnote that this Court applied the

wrong statute of limitations. Plaintiffs contend that the proper

statute of limitations for their contribution action is six years,

pursuant to § 113(g)(2)(B). As Defendants correctly point out,

§ 113(g)(2)(B) establishes a six-year statute of limitations for a

§ 107 action, which this Court determined is not available to Plain-

tiffs. Since Plaintiffs are limited to bringing a § 113 contribution

action, they are subject to the three-year statutory period estab-

lished in § 113(g) (3).

. aL Pitre as da dS acca aURENE Matin othe ache CO Sat Ae OSS cg. Sabet ae oma teed wate ares

35a

This position is untenable in light of both general

Principles of law and the Structure and purpose of the

CERCLA statute. The Supreme Court has explained,

Statutes of limitations . . . represent a pervasive legis-

lative, judgment that it is unjust to fail to put the

adversary on notice to defend within a specified pe-

riod of time and that “the right to be free of ‘stale

claims in time comes to Prevail over the right to

prosecute them.” Railroad Telegraphers y. Railway

Express Agency, 321 U.S. 342, 349, 64 S. Ct. 582,

586, 88 L. Ed. 788 (1944). These enactments are

Statutes of repose; and although affording plaintiffs

what the legislature deems a reasonable time to pre-

sent their claims, they protect defendants and the

courts from having to deal with cases in which the

search for truth may be seriously impaired by the

loss of evidence, whether by death or disappearance

of witnesses, fading memories, disappearance of doc-

uments, or otherwis-. United States y. Marion, 404

U.S. 307, 322, n. 14, 92 S. Ct. 455, 464, n. 14,

30 L. Ed. 2d 468 (1971); Burnett v. New York

Central R. Co., 380 US. 424, 428, 85 S. Ct. 1050,

1054, 13 L. Ed. 2d 941 (1965); Chase Securities

Corp. v. Donaldson, 325 U.S. 304, 314, 65 S. Ct.

1137, 1142, 89 L. Ed. 1628 (1945); Missouri K.

& T.R. Co. v. Harriman, 227 U.S. 657, 672, 33

S. Ct. 397, 401, 57 L. Ed. 690 (1913); Bell v.

Morrison, 26 U.S. 351, 1 Pet. 351, 360, 7 L. Ed.

174 (1828).

United States v. Kubrick, 444 U.S. 111, 117, 62 L. Ed. 2d

259, 100 S. Ct. 352 (1979).

These principles clearly informed the drafting of

CERCLA, which establishes specific and definite statutes

of limitations for the various causes of actions available

under its terms. This Court held, therefore, that to con-

strue the statute, as Plaintiffs do, to give a certain species

36a

of claimants unlimited time to bring a contribution action

would frustrate CERCLA’s legislative purpose. Conse-

quently, this Court endeavored to interpret the CERCLA

statute in a manner consistent with its overriding purpose

in order to avoid such an absurd result. Griffin v. Oceanic

Contractors, Inc., 458 U.S. 564, 575, 73 L. Ed. 2d

973, 102 S. Ct. 3245 (1982) (holding interpretations of

a statute which would produce absurd results are to be

avoided if alternative interpretations consistent with the

legislative purpose are available). Referring to federal

common law for guidance in deriving an operable statute

of limitations for actions such as Plaintiffs’, see Baker v.

Bd. of Regents, Kansas, 991 F.2d 628, 632 (10th Cir.

1993), this Court held that the statute of limitations for

Plaintiffs’ contribution action would accrue once they had

paid more than their fair share of the common liability.

See Sea Land Service, Inc. v. United States, 874 F.2d 169,

171 (3rd Cir. 1989).

Plaintiffs assert that it is unfair and inconsistent with

CERCLA’s statutory scheme to trigger a three-year statute

of limitations against a party who has incurred response

costs “prior to a fixed determination of liability.” (Plaint.

Br. Mot. Recon. at 6.) This Court does not agree. Parties

who have incurred response costs pursuant to an EPA

unilateral administrative order have ample notice that

they must seek contribution from other PRPs. Under the

accrual rule devised by this Court, such parties have more

than three years from the issuance of the order to file

their contribution action—that is, three years in addition

to the time it takes to expend more than their fair share *

2 Incidentally, this is more time than that allotted to claimants

who bring contribution actions after one of the triggering events

enumerated in § 113(g)(3). Cf. Ekotek Site PRP Committee v.

Self, 881 F. Supp. 1516, 1524 (1995) (opining that claimants whose

liability has been fixed by settlement as provided in § 113(g) (3)

“may be required to bring any claim for contribution sooner than

persons whose liability has not been so fixed”’).

37a

Nor is it inconsistent with the operation of CERCLA to

trigger the statute of limitations before liability is “fixed.”

CERCLA, as amended by the Superfund Amendment and

Reauthorization Act of 1986 (“SARA”), 100 Stat. 1613

(1986), fully anticipates that the total extent of liability

may not be known at the time of litigation and therefore

provides mechanisms such as declaratory relief, see § 113

(g)(2)(B), to establish liability for costs to be incurred

in the future. See Kelley v. E.l. DuPont De Nemours and

Co., 17 F.3d 836, 844-45 (6th Cir. 1994).*

For the reasons explained herein, Plaintiffs’ motion for

reconsideration is DENIED.

IT IS SO ORDERED This 20th day of May, 1996.

/s/ Terry C. Kern

United States District Judge

3 Further, as Defendants point out, even those events listed in

§ 113(g) (3), which trigger the running of a three-year statute of

limitations, do not entirely “fix” liability. For instance, the entry

of a consent decree, which is listed as a triggering event in

§ 113(g)(3), does not establish the liability of the settlor. See

42 U.S.C. § 9622(d)(1)(B), (C).

38a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 96-732

TExaco, INc., a Delaware corporation;

SuN CoMPANY, INC. (R&M), a Delaware corporation,

Petitioners,

BROWNING-FERRIS, INC., a Delaware corporation; STAN

DoyYLE; FLEMINGS ROOFING AND SHEET METAL Com-

PANY; GRANT GILL, doing business as Gill Sanitation;

ARK WRECKING COMPANY OF OKLAHOMA, INC.; Hous-

ING AUTHORITY FOR THE CITY OF TULSA; INSULATION

SERVICES, INC.; PEDRICK LABS; PET CARE CEMETARY;

J. B. STALLINGS, doing business as Stallings Construc-

tion Company; TULSA CONSTRUCTION & MANAGEMENT,

Inc.; TULSA COUNTY PUBLIc FACILITIES AUTHORITY;

WRG CONSTRUCTION COMPANY, INC.; ART WEEDIN;

BANK IV OKLAHOMA, N.A.

Respondents.

ORDER

Filed September 11, 1996

Before TACHA, BRORBY, Circuit Judges.

This matter comes on for consideration of the plain-

tiffs’ Petition for Leave to Appeal from Certified Inter-

locutory Order and the response filed thereto.

39a

This appeal will be given an appeal number when this

court is notified by th edistrict court that the fee has

been paid.

Upon consideration thereof, the petition is GRANTED.

The date of this order shall be deemed the date the notice

of appeal was filed.

Entered for the Court

PATRICK FISHER, Clerk

By: /s/ Ellen Rich Reiter

ELLEN RICH REITER

Appeal Expediter

40a

APPENDIX E

[Filed Aug. 1, 1996]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

No. 94-C-820-K

SuN CoMPANny, INc. (R&M),

a Delaware corporation,

and Texaco, INc.,

a Delaware corporation,

Plaintiffs,

VS.

BROWNING-FERRIS, INC.,

a Delaware corporation, et al.,

Defendants.

ORDER

Now before this Court is the motion of Plaintiffs Sun

Company, Inc. (R&M) and Texaco Inc. to amend this

Court’s Order of March 21, 1996, Sun Co. v. Browning-

Ferris, Inc., 919 F. Supp. 1523 (N.D. Okla. 1996)

(“the Order”), reaffirmed on denial of recon., 926 F.

Supp. 170 (N.D. Okla. 1996), granting partial summary

judgment for Defendants. Plaintiffs request that this

Court amend the Order to include certification of an

interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

Specifically, Plaintiffs identify two of this Court’s rulings

for appellate review: first, that under United States v.

Coiorado & Eastern R.R. Co., 50 F.3d 1530 (10th Cir.

1995), Plaintiffs, as PRPs, are not entitled to assert a

cost recovery action pursuant to § 107 of the Compre-

hensive Environmental Response, Compensation and Lia-

bility Act of 1980 (“CERCLA”), 42 U.S.C. § 9607; and

second, that Plaintiffs’ contribution claims prior to August

30, 1991 are time-barred under CERCLA § 113(g),

42 U.S.C. § 9613(g).

4la

Under 28 U.S.C. § 1292(b), a federal district court

may, in the exercise of its discretion, certify orders for

interlocutory appeal.* Interlocutory appeal is warranted

when three conditions exist: (1) the otherwise unappeal-

able order involves a controlling question of law; (2)

there is substantial ground for difference of opinion as

to the controlling question of law; and (3) an immediate

appeal may materially advance the ultimate termination

of the litigation.

This Court believes that the Order involves at least one

question that meets these requisite elements: when the

statute of limitations under CERCLA § 113(g) accrues

in cases where cleanup is compelled by a CERCLA

§ 106 Unilateral Administrative Order. This is certainly

a controlling question of law since it governs whether

most, if not all, of Plaintiffs’ contribution claims are time

barred. There is substantial ground as to a difference of

opinion on this question since it is a matter of first im-

pression and compelled this Court to craft a novel solu-

tion. An immediate appeal would materially advance the

ultimate termination of the litigation and likely save a

substantial amount of judicial time and resources. This

is a complex case involving numerous parties and difficult

factual questions. Plaintiffs anticipate that trial will take

several months. An immediate appeal would avert the

possibility of a second trial after a prodigious expenditure

of the Court’s and the parties’ time and resources. Fur-

ther, an immediate appeal would likely increase the chance

of settlement, since the parties would have a better under-

standing of the stakes of the litigation.

? 28 U.S.C. § 1292(b) provides in pertinent part :

When a district judge, in making in a civil action an order

not otherwise appealable under this section, shall be of the

opinion that such order involves a controlling question of law

as to which there is substantial ground for difference of opinion

and that an immediate appeal from the order may materially

advance the ultimate termination of the litigation, he shall so

state in writing in such order.

42a

While this Court specifically identifies the CERCLA

§ 113(g) statute of limitations question for interlocutory

appeal, this Court acknowledges that the jurisdiction of

the Tenth Circuit under 28 U.S.C. § 1292(b) “is not

confined to the question certified for appeal.” In Re

M & L Business Machine Co., 75 F.3d 586, 589 n.4

(10th Cir. 1996) (citing Homeland Stores, Inc. v. RTC,

17 F.3d 1269, 1272 (10th Cir.), cert. denied, 115 S. Ct.

317 (1994)). If the Tenth Circuit finds that a particular

question other than that identified by this Court controls

the disposition of the Order, the Tenth Circuit may ad-

dress that question as well. See Homeland Stores, 17

F.3d at 1272. Although this Court believes that the first

question identified by PlaintiffsS—whether a CERCLA

§ 107 action is available to PRPs—has been addressed and

answered in the negative by the Tenth Circuit, see Colo-

rado & Eastern, it is certainly a controlling question in

this litigation. Should the Tenth Circuit decide to re-

affirm its holding in Colorado & Eastern or distinguish

that case from the instant one, such a ruling would ma-

terially advance the ultimate termination of the litigation.

For the reasons stated herein, this Court hereby deter-

mines that the conditions for interlocutory appeal exist.

Plaintiffs’ motion to amend is therefore GRANTED, and

the Order is hereby amended nunc pro tunc to include

certification of interlocutory appeal under 28 U.S.C.

§ 1292(b).

IT IS SO ORDERED THIS 31 DAY OF JULY, 1996.

/s/ Terry C. Kern

Terry C. KERN

United States District Judge

43a

APPENDIX F

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;

44a

or loss of natural reosurces, 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

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 par-

——_———————

45a

ties using such equitable factors as the court de-

termines are appropriate. Nothing in this subsection

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.

(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).

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.

46a

(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

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

Priorities 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 (i)

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.

47a

(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

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—

48a

(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

(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

tegin 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.

49a

APPENDIX G

ADDENDUM TO STATEMENT REQUIRED

BY RULE 29.6

Corporate Entities In Which Petitioner Atlantic Richfield

Company Holds Equity Interests

Agro Internacional, S. de R.L. de C.V.

Alpine Pipelines Company

Alyeska Pipeline Service Company

AM/PM Japan Ltd.

ARCO Solar Nigeria, Ltd.

Badger Lake Pipe Line Company

Black Lake Pipeline Company

Blair Athol Joint Venture

Border Pipe Line Company

Candelaris Exploration Corporation

Casitas Pipeline Company

Chartwin Enterprises Limited

China Coal Bed Methane Ltd.

Clermont Joint Venture

Coal Resources of Queensland Pty. Ltd.

Compania de Petrolea Ganso Azul, Ltda

Compania Mexicana de Petroleo El Charro S.A.

Compania Petrolera Carco

Cook Inlet Pipe Line Company

Curragh Coal Sales Co., Pty. Ltd.

Curragh Queensland Mining, Limited

Cuyama Pipeline Company

Delta Housing Inc.

Dixie Pipeline Company

Dos Pueblos Golf Links I-V, Ltd.

East Texas Salt Water Disposal Company

El-Biar Real Estate Holdings, Inc.

EnArco Resin S.p.A.

Eurogen C.V.

F & H Pipeline Company

50a

Gordonstone Coal Management Pty., Ltd.

Gordonstone Coal Sales Pty., Ltd.

Grant Gathering Company

Greater Pacific Limited

Guangzhou Wittenberg Oil Co. Ltd.

Gulfstream Sinclair Joint Venture Co. Limited

HAB Assets, Inc.

Hutzhou Wittenberg Petroleum Supply Co. Ltd.

Inversiones ARCO. S. DE R.L. DE CV.

Jiu Feng ARCO Shipping Company, Ltd.

JSC Oil Company LUKOIL

Kuparuk Pipeline Company

Kuparuk Transportation Company

Kuparuk Transportation Capital Corporation

Little Thunder Leasing Company

Los Angeles Export Terminal, Inc.

Los Patacios Exploration Corporation

LUKARCO B.V.

LUKARCO Finance B.V.

LUKARCO Limited

LUKARCO Services B.V.

LUKOIL

Mountain Coal Company

New Cure, Inc.

Nihon Oxirane Co., Ltd.

Oliktok Pipeline Company

Olympic Pipeline Company

Orinoco Joint Venture

Oxirane Chemical Company

Pan American Petroleum Company of California

PayPoint Electronic Payment Systems, Inc.

Portview International Ltd.

POSM Delaware, Inc.

POSM II Limited Partnership, L.P.

POSM II Properties Partnership, L.P.

‘ |

Sla

Prestige Stations, Inc.

Prince William Sound Oil Spill Response Corporation

Products Cogeneration Company

P.T. ARCO Chemical Indonesia

Rodas Exploration Corporation

Santa Cruz Exploration Corporation

Seaway Pipeline Company

Shine Top International Investment Limited

Silva Exploration Corporation

South Kerkennah Oil Company

Streamelec B.V.

Tertiary Services, Inc.

Texas-New Mexico Pipe Line Company

The Council for Environmentally Sound Deicing, Inc.

The Meadows Corporation

Thunder Basin Coal Company, L.L.C.

Thunder Basin Coal Holdings, Inc.

Tricentrol

Val Verde Pipeline, L.P.

Vastar Gas Marketing, Inc.

Vastar Holdings, Inc.

Vastar Power Marketing, Inc.

Ventway Pty., Ltd.

Wallani Pty., Ltd.

Western Energy Cogen, Inc.

Wilburton Hub, Inc

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