AVIALL SERVICES INC., Plaintiff - Counter Defendant - Appellant, versus COOPER INDUSTRIES INC., Defendant - Counter Claimant - Appellee.
No. 00-10197
UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
August 14, 2001
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
Appeal from the United States District Court For the Northern District of Texas
Aviall Services, Inc. (“Aviall“) appeals the summary judgment dismissal of its contribution claim based on the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA“),
Cooper ran an aircraft engine maintenance business at several of its industrial facilities. The rebuilding of aircraft engines required the use of petroleum and other hazardous substances, some of which seeped into the ground and groundwater through underground storage tanks and spills. Among the industrial facilities contaminated were Love Field, Carter Field and Forest Park (collectively, the “Facilities“). In 1981, Cooper sold its aircraft engine maintenance business, along with the Facilities, to Aviall. Several years later, Aviall began discovering some of the contamination that had occurred at the Facilities. Aviall admits, though, that the pollution of the Facilities continued under its stewardship as well.
Aviall notified the Texas Natural Resource Conservation Commission (“TNRCC“) of the contamination at its Facilities. In turn, the TNRCC sent several letters to Aviall informing the company that it was in violation of Texas state environmental laws. Notably, the Environmental Protection Agency (“EPA“) never contacted Aviall or designated the Facilities as contaminated sites. In 1984, Aviall began a decade-long environmental cleanup, spending millions of dollars. In early 1995, Aviall for the first time contacted Cooper seeking reimbursement. Aviall eventually sold the Facilities to another private party, but it contractually retained a continuing responsibility for the environmental cleanup.
In 1997, Aviall filed this lawsuit against Cooper based in part on CERCLA‘s
On appeal, Aviall admits that neither the EPA nor any private party has filed a CERCLA claim against it. Notwithstanding this lack of federal action against it, Aviall claims that it can pursue CERCLA-based contribution because it voluntarily cleaned up the contamination, or at least it did so at the behest of a state environmental agency. Before discussing the merits of these arguments, we briefly review the structure and history of CERCLA.
II
Congress enacted CERCLA to facilitate the cleanup of hazardous waste sites, and to shift the costs of environmental response from the taxpayers to the parties who benefitted from the use or disposal of the hazardous substances. See OHM Remediation Serv. v. Evans Cooperage Co., Inc., 116 F.3d 1574, 1578 (5th Cir. 1997). The statute allows parties who incur environmental cleanup costs to recover from persons commonly referred to as “potentially responsible parties” (“PRPs“). See
CERCLA provides two ways for parties to recover environmental response costs. The
Courts have elaborated on the distinction between a contribution action under
III
After examining the text and structure of CERCLA, we hold that a party can seek a
A
Any analysis of a statutory provision must be tethered and true to the text. See United States v. Alvarez-Sanchez, 511 U.S. 350, 356, 114 S.Ct. 1599, 1603, 128 L.Ed.2d. 319 (1994) (“When interpreting a statute, we look first and foremost to its text“). The contribution section of CERCLA states: “Any person may seek contribution from any other person who is liable or potentially liable under [§ 107(a)], during or following any civil action under [§ 106] or under [§ 107(a)].”
A plain language reading of the statute requires a PRP seeking contribution from other PRPs to have filed a
We begin our analysis with the word “contribution” itself. The word “contribution” is defined as the “[r]ight of one who has discharged a common liability to recover of another also liable . . . . Under principle of ‘contribution,’ a tort-feasor against whom a judgment is rendered is entitled to recover proportional shares of judgment from other joint tort-feаsors . . . .” BLACK‘S LAW DICTIONARY 329 (6th ed. 1990). As further explained in Sections C and D, we believe that the commonly accepted definition of contribution requires a tortfeasor to first face judgment before it can seek contribution from other parties.
Notwithstanding the definition of “contribution,” Aviall claims that the statutory language of CERCLA supports its view. It first notes that under
Aviall‘s analysis is inconsistent with our canons of statutory construction. Depending on the context, the word “may” can have the permissive definition of “have liberty to,” or alternatively, it can denote exclusivity as in “shall [or] must.” WEBSTER THIRD NEW INTERNATIONAL DICTIONARY 1396 (3d ed. 1993). We have held that when the word “may” is used аs an enabling provision creating a cause of action (as it is here), it establishes an exclusive cause of action and means “shall” or “must.”4 Accordingly, a party can file a contribution claim only if it has been alleged or deemed liable under
Our reasoning in Resolution Trust Corp v. Miramon, 22 F.3d 1357 (5th Cir. 1994), is instructive. In Miramon, the Resolution Trust Corporation disputed the district court‘s interpretation of the Financial Institutions Reform, Recovery and Enforcement Act, which states that a “director or officer . . . may be held personally liable for monetary damages in any civil action . . . for gross negligence.” Id. at 1360-61 (emphasis added). The issue was whether or not the statute adopted an exclusive gross negligence standard. The RTC offered the exact same argument that Aviall maintains today: it argued that “[i]f that section were meant to be exclusive . . . it would have said ‘may only.‘” Id. at 1361. We rejected that argument, holding that the word “may,” when used in the context of
Aviall also relies on the last sentence of
We reject Aviall‘s reading of the savings clause, and instead interpret it to mean that the statute does not affect a party‘s ability to bring contribution actions based on state law. If we adopted Aviall‘s interpretation, it would render superfluous the first sentence of
Additionally, we have held that “[r]eading the savings clause to nullify the substantive portion of the section would ‘violate the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative.‘” Miramon, 22 F.3d at 1361. Aviall‘s reading would further violate another canon of construction that the specific governs the general. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S.Ct. 2031, 2037, 119 L.Ed.2d 157 (1992) (interpreting a savings clause). We will not read “CERCLA‘s savings clause . . . to gut provisions of CERCLA.” PMC, Inc. v. Sherwins-Williams Co., 151 F.3d 610, 618 (7th Cir. 1998) (analyzing the CERCLA savings clause under
A more reasonable reading of the savings clause suggests that Congress wanted to “merely nix an inference that the statute in which it appears is intended to be the exclusive remedy for harms caused by the violation of the statute.” Id. More specifically, the savings clause was likely intended to preserve state law-based claims of contribution. See id. (“The purpose of CERCLA‘s savings clause is to preserve to victims of toxic wastes the other remedies they may have under federal or
In short, we hold that, as a matter of statutory text and structure, CERCLA requirеs a party seeking contribution to be, or have been, a defendant in a
B
The legislative history of CERCLA reinforces our analysis of the statutory text. While legislative history sometimes is of limited value due to its potential ambiguity, it can nevertheless be useful when it overwhelmingly supports one side, as it does in this case. See Boureslan v. Aramco, 857 F.2d 1014, 1018 (5th Cir. 1988) (stating that “[l]egislative history is relegated to a secondary source behind the language of the statute in determining congressional intent; even in its secondary role legislative history must be used cautiously.“)
The original CERCLA statute did not explicitly state whether one PRP could sue another PRP for contribution, although several district courts had implied such a right. In 1986, Congress
A House of Representatives conference report on SARA emphasized that a party seeking contribution must have first incurred (or at least must face potential) cleanup costs pursuant to either
The House report added that a contribution action exists even if a CERCLA action is merely pending: “The section contemplates that if an action under section 106 or 107 of the Act is under way, any related claims for contribution or indemnification may be brought in such an action.” H.R. REP. NO. 00-253(I), 1985 WL 25943 at 26. The legislative history never mentions that SARA intended to allow contribution in the absence of either a pending or prior
C
The majority of the courts addressing
A helpful district court decision is Estes v. Scotsman Group, Inc., 16 F.Supp.2d 983 (C.D. Ill. 1998), a case factually similar to Aviall‘s situation. In Estes, Nicholas Estes purchased an industrial site contaminated with hazardous substances, which he moved and handled in violation of environmental regulatory guidelines. After the Illinois Environmental Protection Agency sent Estes an enforcement notice letter, he undertook a cleanup of the site. Estes then filed a CERCLA claim based on
Similarly, another district court dismissed a PRP‘s contribution claim as “premature and improper” because the PRP was “yеt to be found liable” under CERCLA. See Deby, Inc. v. Cooper Indus., No. 99C2464, 2000 WL 263985, *6 (N.D. Ill. Feb. 29, 2000) (“Contribution is a remedy
In addition to these district courts, two Circuit courts—including this one—have suggested in dicta that a party cannot file a contribution claim unless it is a defendant in a federal cost recovery or administrative action. The Seventh Circuit analyzed the “during or following” language in
A few district court cases have adopted the contrary view that a PRP can bring a
Aviall cites several other cases to support its contention that a
Aviall‘s reliance on Geraghty & Miller is misplaced. First, unlike Aviall—which had never been a defendant in any CERCLA action—Conoco/Vista was a CERCLA defendant at the time it filed its contribution claim against G&M, and thus had met
Similarly, Sun Co., Inc. v. Browning-Ferris, Inc., 124 F.3d 1187 (10th Cir. 1997), mentioned
Aviall also cites favorable language from Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 351 (6th Cir. 1998) (“It was enough that a plaintiff act under some compulsion or legal obligation to an injured when he or she discharged the payment“). The Sixth Circuit‘s ruling can be distinguished factually because the plaintiff in Centerior initiated a cleanup after the EPA had issued an administrative order under
Lastly, Aviall lists a string of cases where a PRP undertook cleanup and then filed for contribution, although only a state agency had issued an administrative order against the PRP. See, e.g., Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Cir. 1989). Aviall thus argues that the TNRCC‘s administrative orders were sufficient to allow it to proceed with its
D
Finally, Aviall makes a general policy argument that the district court‘s ruling would discourage voluntary cleanups because parties would not be able to seek contribution unless they were actually sued or faced EPA administrative orders. Some courts have conceded this disincentive, but have nevertheless ruled that Congress required this result. See Rumpke, 107 F.3d at 1240 (“We acknowledge, as other courts have, that this seems to provide a disincentive for parties voluntarily to undertake cleanup operations, because a § 106 or § 107(a) action apparently must either be ongoing or already completed before § 113(f)(1) is available. This appears to be what the statute requires, however“). We agree that the text trumps policy preferences, and that we cannot substitute Congress’ wishes with our own.
In any event, we believe that our interpretation of the statute is wholly consistent with the policy goals of CERCLA. When Congress passed SARA, it did not intend to create an expansive federal cause of action. As the legislative history shows, Congress wanted only a limited right of contribution when parties are found or alleged to be liable under CERCLA. See S. REP. NO. 99-11 at 44 (stating that
We also doubt that our interpretation of
IV
After examining CERCLA‘s text, legislative history and case law, we hold that a PRP seeking contribution from other PRPs under
AFFIRMED.
In reaching its holding that a PRP can only sue another PRP on a
I.
The Text
Neither I nor anyone else can quarrel with the majority‘s incantation of the truism that when we analyze a statute we must look first and foremost to its language. Accordingly, I begin with the full text of
Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) [§ 107(a)] of this title, during or following any civil action under section 9606 [§ 106] of this title or under section 9607(a) [§ 107(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.10
We cannot simply analyze statutory terms in a vacuum, however, but are constrained to consider them in the context of the statute as a whole.11 The majority perverts this canon of statutory construction by seizing on and unduly elevating the phrase “during or follоwing” in
For openers, nowhere does the plain language of the statute specify that actions for contribution are allowed “only” during or following litigation under CERCLA. Thus the majority‘s holding —— “that a party can seek a
“Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the аbsence of a civil action under [§ 106] of this title or [§ 107(a)] of this title.”12
I find baffling the majority‘s dismissive reference to Aviall‘s argument —— that the absence of the word “only” from the statute at least raises a question as to whether the “during or following” language is exclusive —— as “inconsistent with our canons of statutory construction” because I am aware of no canon that gives the judiciary a license to rewrite statutory language. To the contrary, it is not our province to add even one word to a statute —— here, to restrict its reach —— when Congress itself has chosen not to include that word and thus not to limit the scope of the statute. It is obvious that, by inserting the word “only” into the statute, the majority has converted a permissive provision to one of exclusivity. When Congress wants to make a statute exclusive, it certainly knows how to do so.13
The majority‘s related attempt to cabin the savings clause by insisting that it means nothing more than that “the statute does not affect a party‘s ability to bring contribution actions based on state law” is yet another judicial trespass on the legislative turf. In this instance, the majority‘s interpretation of the savings clause requires still another insertion of an omitted word —— “state” —— thereby creating a distinction that Congress did not see fit to make and that we of the “Third Branch” should not presume to legislate. When Congress intends to distinguish between federal and state law, it certainly knows how to do so. For instance, CERCLA‘s general savings clause provides,
Nothing in this chapter shall affect or modify in any way the
obligations or liabilities of any person under other Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants.14
If, as the majority contends, Congress meant for the savings clause merely to acknowledge that a party seeking contribution for environmental clean-up may bring a state action in response to state orders or judgments (something Congress need not say or do because —— short of making CERCLA preemptive —— it cannot prohibit it) surely Congress would have made that distinction explicit, as it did in CERCLA‘s general savings clause.15
Second, the majority‘s own conclusion that a PRP seeking contribution from other PRPs “must have a pending or adjudged § 106 administrative order or § 107(a) cost recovery action against it” (emphasis added) puts the lie to its contorted reading of the savings clause. Section 113(f)(1) states that a PRP may seek contribution “during or following any civil action under [§ 106] or under [§ 107(a)].”16 Administrative orders are not “civil actions.” They are not “actions” at all.17 And no amount of saying so can make it so. The majority‘s Orwellian insistence that the term “civil actions” includes “administrative orders” stretches the language of the statute beyond the breaking point —— needlessly, because the savings clause makes clear that “the absence of a civil action under [§ 106]”
The majority cannot have it both ways. If, as the majority claims, the language of the savings clause means only that § 113(f)(1) does not preempt state-law contribution claims, then not even an abatement order issued pursuant to § 106(a) triggers a PRP‘s right to seek contribution under § 113(f)(1), because such an administrative order is not a “civil action” during or following which a contribution claim may only, as the majority would have it, be brought. No amount of interpretive sleight-of-hand on the majority‘s part can avoid this logic. Thus the majority‘s assertion that a PRP can file a contribution claim “if the government has ordered it to clean up contaminated sites under § 106” flatly contradicts its own (erroneous) interpretation of the savings clause as merely preserving state-law remеdies. When properly interpreted, the language of the savings clause makes clear that a PRP may “bring an action for contribution in the absence of a civil action under [§ 106] . . . or [§ 107(a)]”19 —— and I see nothing in the statute to justify the majority‘s dubious distinction between federal administrative orders, which, as even the majority agrees, trigger contribution claims under § 113(f)(1), and state administrative orders which, the majority has decreed, somehow do not.
Third, the majority unquestionably misspeaks by adopting its own uniquely narrow definition of the critical statutory term “contribution.” As § 113(f)(1) does not define the term “contribution,” we must abide by the well-established maxim of interpretation that legal terms not defined in a statute are ordinarily presumed to convey their customary legal meaning and accord the term “contribution” its full common-law meaning: “[W]here Congress borrows terms of art . . . it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from
Section 107 was the sole statutory basis for recovery of response costs in the original CERCLA statute, which contained no provision for apportioning costs among PRPs. Cases under the original statute threatened minor polluters with joint and several liability, which prompted courts to find an implicit, federal common law right to contribution. The SARA amendments, including section 113, codified the federal common law right of contribution. A principal objective of the new contribution provision was to “clarif[y] and confirm[] the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties, when the person believes that it has assumed a share of the cleanup or cost that may be greater than its equitable share under the circumstances.”21
We are constrained to “take it as a given that Congress has legislated with an expectation that the [common-law] principle will apply except when a statutory purpose to the contrary is evident.”22
The term “contribution,” as this court has explained, “is best understood in its customary sense as a term of art referring to actions brought among potentially responsible parties.”23 Black‘s Law Dictionary defines “contribution” as the “[r]ight of one who has discharged a common liability to recover of another also liable, the aliquot portion which he ought to pay or bear.”24 Similarly, the
The equity for contribution arises at the time of the creation of the relationship between the parties which gives rise to the right and ripens into a cause of action for reimbursement in favor of a party when, under a legal duty, he satisfies, by payment or otherwise, more than his just proportion of the common obligation or liability. Or, stated in terms applicable to actions at law, the implied promise to contribute is considered as made at the time the common liability is assumed, and the right to sue thereon arises when a party has paid the whole of the obligation or more than his share thereof.27
None of these authorities requires, as a condition precedent, that a party be sued or adjudged liable before seeking contribution; rather, the right to seek contribution arises independently when one tortfeasor, acting under a legal duty, discharges more than his fair share of a liability shared by joint tortfeasors.
I acknowledge that some jurisdictions have statutorily restricted the right to seek contribution to actions between tort-feasors against whom judgment has been rendered.28 Eschewing any such limitation, however, the “during or following” language in § 113(f)(1) confirms that a PRP need not wait until it is hit with a final judgment in a court of law to seek contribution from other PRPs for
One might argue, as does the majority, that by expressly providing for contribution “during or following” a civil action under § 106 or § 107(a), Congress impliedly excluded the common-law right to seek contribution in the absence of suit. Obviously mindful of the possibility of such an overly restrictive reading, Congress took explicit care to add the savings clause, thereby foreclosing this narrow construction of the statute: “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] of this title or [§ 107(a)] of this title.”30
Unlike the majority, I read the savings clause to mean precisely what it says: Nothing in § 113(f)(1) —— particularly not its “during or following” language —— diminishes the right of any person to bring an action for contribution in the absence of a civil action under § 106 or § 107(a). Just as the “during or following language” confirms that the class of those who have the “right . . . to bring an action for contribution” is not limited to PRPs against whom a judgment already has been rendered, the savings clause clarifies that a PRP may seek contribution in the absence of suit so long as the prerequisites for a contribution claim have otherwise been met.
Rather than deal squarely with this argument, the majority opts to mischaracterize it. My argument is neither that Congress “deliberately” made the enabling provision “unclear,” nor that it
The savings clause, then, serves as a prior restraint to rebut аny unintended inference of expressio unius lest some court in the future try to ascribe that maxim to the language. Stated differently, the savings clause rules out any construction that would purport to read “during or following” as the exclusive portal through which a contribution claim must pass. Particularly in the absence of the word “only” preceding the phrase “during or following,” the savings clause makes abundantly clear that “during or following” are but two of the many times and circumstances when one PRP may seek contribution from another.
The majority‘s reliance on Resolution Trust Corp. v. Miramon31 is thus misplaced. The statute at issue in that case abrogated a federal common-law provision, whereas in our case, section § 113(f)(1) “confirms” the federal common law of contribution under CERCLA. Furthermore, the savings clause at issue in Miramon expressly stated that “[n]othing in this paragraph shall impair or affect any right of the [Resolution Trust] Corporation under other applicable law.”32 Focusing on the term “other,” we concluded that the savings clause did not preserve federal common law actions for simple negligence when the enabling provision of the statute solely referenced actions for gross negligence:
The savings clause provides that the RTC‘s rights under other applicablе law will not be impaired or affected. This clearly implies that the RTC‘s rights under some law is being impaired or affected. Under the RTC‘s construction of the savings clause, though, there is no law that is impaired or affected because all previous common law remains effective and [the statute] merely grants the RTC an additional option. Had Congress intended this result it would have drafted the clause to read that “[n]othing in this paragraph shall impair or affect any right of the Corporation under any applicable law.33
The language of § 113(f)(1)‘s savings clause, however, is even more expansive and explicit in preserving the PRP‘s common-law right to bring an action for contribution in the absence of suit: “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] of this title or [§ 107(a)] of this title.”34 Unlike the statute at issue in Miramon, section 113(f)(1) contains no language even remotely suggesting that the “during or following” language is meant to be exclusive or restrictive. Neither is there anything that expressly or implicitly limits the savings clause to state “actions.” In view of Congress‘s express intention to “confirm” the federal common law of contribution under CERCLA, I must disagree with the majority when it insists that we should read into § 113(f)(1) a limitation оn the right to seek contribution that a straightforward reading of the plain language of the statute expressly rejects.
II.
Legislative History
The majority‘s resort to legislative history to shore up its problematical reading of the statute aptly demonstrates the pitfalls of traversing such uncertain terrain, especially when —— as here —— there is no claim or finding of ambiguity. In support of its bald assertion that the legislative history
By any standard, the language of the statute ultimately enacted by Congress is more permissive than either of the more restrictive versions on which the legislative history cited by the majority comments. The legislative history does not reveal reasons for these changes, and I hesitate to place too much weight on what may be a slim reed. At a minimum, though, it can hardly be said —— at least not without blushing —— that the legislative history supports the majority‘s contention
The majority would also make much of the fact that the legislative history “never mentions that SARA intended to allow contribution in the absence of either a pending or prior § 106 or § 107(a) action.” I am mystified by the majority‘s willingness to cast aside its healthy skepticism about legislative history to read so much into the absence of legislative discussion on this issue, especially when the plain language of the statute, through its savings clause, expressly contemplates actions for contribution in the absence of civil actions under § 106 or § 107(a). Surely the majority has not forgotten Justice Scalia‘s admonition that we are not concerned with what Congress intended, but what it enacted: “[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”37
The one thing —— perhaps the only thing —— that is clear from the legislative history is that § 113(f)(1) “clarifies and confirms” the federal common-law right to seek contribution from other potentially liable parties under CERCLA.38 Taken together, (1) Congress‘s intentional omission of “only” before “during or following,” and of “state” before “action” in the savings clause, (2) the expansive common-law understanding of the term “contribution” to include actions instituted prior to suit or
III.
Case Law
The majority admits, as it must, that in a “string of cases,” federal courts of appeal (including this one) have permitted § 113(f)(1) contribution suits to go forward in the absence of civil actions under § 106 or § 107(a).39 Most recently, in Crofton Ventures LP v. G & H Partnership,40 the Fourth Circuit, in an opinion authored by Judge Niemeyer, allowed a § 113 suit by a PRP who, just like Aviall, had notified a state environmental agency of the contamination and then cleaned up the facility. It was of no moment in Crofton that neither an administrative charge nor a § 106 or § 107 action had been brought against the plaintiff in that case.
Faced with this line of federal appellate cases, what does the majority choose to rely on but a district court case —— from another circuit —— Estes v. Scotsman Group, Inc.,41 which in turn relied on diсta from the Seventh Circuit‘s opinion in Rumpke of Indiana, Inc. v. Cummins Engine Co, Inc.:42
We acknowledge, as other courts have, that this seems to provide a disincentive for parties voluntarily to undertake cleanup operations, because a § 106 or § 107(a) action apparently must either be ongoing or already completed before § 113(f)(1) is available. This appears to be what the statute requires, however.43
In Ninth Ave. Remedial Group v. Allis Chalmers Corp.,44 however, a different district court in the same circuit refused to “be guided by the equivocal dicta in Rumpke” and held that “[i]n light of the express language of Section 113(f)(1) . . . [a] PRP can bring a section 113 action even when no prior or pending section 106 or 107
Similarly, in Mathis v. Velsicol Chemical Corp.,46 a district court in the Eleventh Circuit rejected an attempt to plead, as an affirmative defense to a § 113(f)(1) claim, that “no civil action under [§ 106] or [107(a)] is pending.”47 Underscoring the broad language of the savings clause, the Mathis court held that § 113(f)(1) “by its plain terms and meaning prevents . . . [the maintenance of] a defense concerning the pendency of a civil action under CERCLA.”48 Likewise, in Johnson County Airport Comm‘n v. Parsonitt Co., Inc,49 the district court held that “nothing in the language of section 113(f)” prohibits a PRP from asserting claims for contribution under the statute in the absence of a civil action under § 106 or § 107(a).50 Most recently, in Coastline Terminals of Connecticut, Inc. v. USX Corp.,51 the district court held that a § 113(f)(1) claim is not barred merely because the PRP has not been threatened with liаbility in the form of a § 106 or § 107
Instead, the majority cobbles together a hodgepodge of other district court cases, none of which is apposite. For example, the district court in Deby, Inc. v. Cooper Indus.53 dismissed the PRP‘s contribution claim as “premature and improper” because the PRP had “yet to be found liable” in a CERCLA action then actually pending against the PRP in another district court. The Deby court therefore concluded that “[i]t would run contrary to judicial economy, efficiency, and consistency to have t[w]o courts determine Deby‘s liability.”54
The majority likewise cites the district court opinion in United States v. Compaction Sys. Corp.55 for support, but that case merely held that the act of settling with the United States satisfies § 113(f)(1)‘s liability requirement even though there has been no formal admission of liability.56 In the same vein, the majority cites to the district court‘s opinion in Southdown v. Allen57 even though it has no applicability whatsoever to the
I recognize that the district court in Rockwell Intern. Corp. v. IU Intern. Corp.59 rejected my view that § 113(f)(1) permits claims for contribution in the absence of a federal civil action under § 106 or § 107(a); but it also rejected the majority‘s view that the “during or following” language “precludes any claim sounding in contribution except when brought by a party defending against or found liable in a [§ 106] or [§ 107(a)] action.”60 In Rockwell, the plaintiff sought a declaratory judgment under §
The majority finally turns to this court‘s own precedent and strains mightily to glean from it an “intimat[ion] that a § 106 or § 107(a) action must be pending or adjudicated for a party to pursue contribution costs” from dicta in our OHM opinion.63 Reminiscent of the Emperor‘s new clothes, however, that opinion suggests no such thing. Directly to the contrary, in fact, what we actually observed in OHM is that § 113(f)(1) “allows parties to bring contribution actions at least as soon as they are sued under
Neither does our discussion of the common-law principle of contribution in OHM “imply” that a party must be alleged or held to be liable before it may seek contribution under § 113(f)(1). In OHM, we observed that the term “contribution” refers to “an action by a [PRP] to recover from another [PRP] that portion of its costs that are in excess of its pro rata share of the aggregate response costs[.]”65 This definition comports with the authoritative view that the right to sue for contribution “arises when a party has paid the whole of the obligation or more than his share thereof[.]”66
Contrary to the majority‘s contentions, the definition of
In short, the majority‘s claim of widespread jurisprudential support for its textual analysis vanishes like the mist when exposed to the sunshine of objective scrutiny. If one robin does not make a spring, then surely a light dusting of equivocal district court cases and a wisp of dicta from another circuit does not persuasive authority make. The paucity of case law —— particularly federal appellate case law —— directly on point mandates a holding that the plain language of § 113(f)(1) expressly
IV.
Policy
The majority mouths adherence to the prudential rule that when the meaning of statutory language is clear, courts “need not determine which way . . . various policy arguments cut.”70 Nevertheless, the same majority goes on to claim, astonishingly, that its interpretation of the statute furthers rather than frustrates the policy goals of CERCLA that this court has identified as “facilitat[ing] the prompt cleanup of hazardous waste sites and . . . shift[ing] the cost of environmental response from the taxpayers to the parties who benefitted from the wastes that caused the harm.”71 The majority weakly contends that it “seems unlikely that Congress enacted a contribution right broad enough to encompass . . . the situation[] where neither the federal government nor any private party has filed a CERCLA action . . . and the EPA has not designated [the facilities] as contaminated sites.” But such “logic” is exposed as flawed by the undeniable recognition that the overarching goal of CERCLA is to create strong incentives for responsible parties to perform cleanups of sites without waiting for the hammer of litigation to drop. In my view,
Irrespective of the policy arguments, though, if the text of § 113(f)(1), legitimately read, limited the right to seek contribution to those PRPs against which pending or adjudged § 106 or § 107(a) actions were extant, I would be the first to acknowledge and enforce that limitation. As I am convinced, however, that the plain language of the statute creates no such limitation but, to the contrary, expressly permits an action for contribution to be brought “in the absence of a civil action” under § 106 or § 107(a), I must respectfully dissent.