# Petition for Writ of Certiorari — Browning-Ferris, Inc. v. Sun Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1906%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 522 U.S. 1113 ## Text “ere 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, Ws 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. ii 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. iv 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 i 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 py > ge Nt), tg SESS viii nn ne aeuabentesnconpiaaiacis 1 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 ix 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 x 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 2 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”’). 3 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. 4 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 5 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 6 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, or (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. d. 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- 7 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). 8 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). 9 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. 10 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. as —T Se ee 11 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. 12 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). 13 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. 14 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 ee ene Ce me rec tiannha 35 Nath Shakti Ahi SiO ible Sted Ah rate we 15 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. 16 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. 17 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. 18 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 19 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 20 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). 21 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 22 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, 23 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- 24 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 25 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. 26 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 j iene tinal 27 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). 28 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). 29 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 la 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 2a 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. 3a 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- 4a 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 5a 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 6a 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). I. 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 7a 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 8a 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). 9a 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). Il 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 rl 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 © ORAS? Awe yy APES MEN OPK RAL ET CIENT NOR: SIREN IE A EL LG CORA NITED NI: SP atin. alae * bs tli a Peed & o ‘ & - 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 contributi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1906%3A1. Public record. Not legal advice.