September 12, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2253
UNITED TECHNOLOGIES CORPORATION, ET AL., Plaintiffs, Appellants,
v.
BROWNING-FERRIS INDUSTRIES, INC., ET AL., Defendants, Appellees.
ERRATA SHEET
The opinion of the court issued on August 19, 1994 is corrected as follows:
On page 4, last line delete citation
On page 5, line 11 change "in March, 1986" to "no later than early 1987"
On page 5, lines 16, 17, 18 change sentence beginning with "Here, . . . ." to "Here, the court entered the consent decree in March of 1986 and remedial construction apparently started at the Site within one year of that event."
On page 19 line 13 change "five" to "six"
For copy of appendix, please contact Clerk's Office. UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
UNITED TECHNOLOGIES CORPORATION, ET AL., Plaintiffs, Appellants,
BROWNING-FERRIS INDUSTRIES, INC., ET AL., Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Breyer,* Chief Judge,
Torruella and Selya, Circuit Judges.
Peter Buscemi, with whom Howard T. Weir, Thomas J. O'Brien,
Ellen B. Steen, Morgan, Lewis & Bockius, Jeffrey A. Thaler, and
Berman & Simmons, P.A. were on brief, for appellants.
Robert L. Gulley, with whom Samuel B. Boxerman, Sidley &
Austin, John A. Ciraldo, and Perkins, Thompson, Hinckley & Keddy
were on brief, for appellee Browning-Ferris Industries, Inc. Arlyn H. Weeks and Conley, Haley & O'Neil on brief for
appellee Central Maine Power Co. Edward E. Shea, Clayton A. Prugh, Elizabeth A. Bryson,
Windels, Marx, Davies & Ives, Nicholas M. Lanzilotta, and Colby &
Lanzilotta on brief for appellee Carleton Woolen Mills, Inc.
August 19, 1994
*Chief Judge Stephen Breyer heard oral argument in this matter but did not participate in the drafting or the issuance of the
panel's opinion. The remaining two panelists therefore issue this opinion pursuant to 28 U.S.C. 46(d).
SELYA, Circuit Judge. This appeal demands that we SELYA, Circuit Judge.
clarify the relationship between cost recovery actions and
contribution actions under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), 42 U.S.C.
9601-9675 (1987), as amended by the Superfund Amendments and
Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 101 et
seq., 100 Stat. 1613 (1986). Having completed our task, we
affirm the district court's entry of summary judgment terminating
appellants' action as time-barred.
I. BACKGROUND
The essential facts are not in dispute. In 1981, after
discovering hazardous substance contaminants at a landfill in
Winthrop, Maine (the Site), the United States Environmental
Protection Agency (EPA) placed the Site on its national priority
list. The EPA and Maine thereafter undertook a concurrent
investigation and determined that Inmont Corporation, since
acquired by plaintiff-appellant United Technologies Corporation
(UTC),1 had conducted contamination producing activities at the
Site from 1950 to 1975.
In 1982, the EPA notified Inmont that it was liable,
under CERCLA, to clean up the Site. Several years of dilly-
dallying eventually gave way to negotiations among Inmont and
1UTC acquired Inmont in 1979 and transferred its ownership to BASF Corporation (a UTC subsidiary) in 1985. Inmont then merged into BASF. UTC and BASF brought this suit jointly, and both appear here as appellants.
certain other potentially responsible parties (PRPs),2 on one
hand, and the appropriate federal and state officials, on the
second hand. The parties reached a tentative agreement and
prepared a consent decree. On January 29, 1986, the United
States filed a civil action against Inmont and others under
CERCLA, with a view toward securing a judicial imprimatur on the
proposed decree. The suit alleged that the named defendants were
jointly and severally liable for the costs the United States had
incurred, and would continue to absorb, in responding to releases
and threatened releases at the Site.
The district court promptly consolidated EPA's case
with a nearly identical case that Maine had filed against the
same defendants; and, on March 23, 1986, the court entered the
consent decree. Pursuant thereto, appellants agreed to undertake
and complete corrective work at the Site in accordance with a
plan for remedial action. The cleanup proved to be expensive:
appellants make the uncontradicted claim that remedial work cost
in excess of $13,000,000 to date, and that work yet to be done
likely will absorb an additional $20,000,000 or more. Appellants
also agreed to reimburse, and have since paid, the federal and
state sovereigns $475,000 for costs previously incurred with
respect to scouring the Site.
On October 16, 1992, appellants brought suit in federal
district court against several defendants, including Browning-
2The other PRPs were the Town of Winthrop, Everett Savage, and Glenda Savage. None of them are involved in this appeal.
Ferris Industries, Inc. (Browning).3 In their complaint,
appellants posited claims under both federal and state law. They
alleged that the defendants were wholly or partially responsible
for contamination of the Site and sought three separate kinds of
relief, namely, (1) recovery of cleanup costs paid directly by
them (hereinafter "first-instance costs"); (2) recovery of monies
paid by them to reimburse the EPA and Maine for cleanup costs
(hereinafter "reimbursed costs"); and (3) a declaration of rights
in respect to liability for future response costs.
Browning moved for summary judgment, hypothesizing that
CERCLA's statute of limitations barred appellants' federal
claims, and that the pendent state claims should, therefore, be
dismissed for lack of jurisdiction. Appellants voluntarily
dismissed their claims regarding the reimbursed costs (apparently
believing such claims to constitute time-barred contribution
claims), but otherwise opposed the motion. A magistrate judge
recommended granting brevis disposition with respect to
appellants' remaining claims. The district court agreed. See
1993 WL 66007 (D. Me. May 27, 1993). This appeal followed.4
3The other named defendants included Carleton Woolen Mills, Inc., Central Maine Power Company, Community Service Telephone Co., Progressive Iron Works, Inc., and Quaker Lace Company. Early in the proceedings, appellants voluntarily dismissed their action against Quaker Lace. The remaining defendants appear here as appellees.
4When Browning sought summary judgment, all the remaining defendants followed suit. They ultimately achieved an identical result. This proceeding embraces the district court's grant of summary judgment in favor of all defendants. For ease in reference we treat the appeal as if Browning alone were the appellee, but our resolution of it applies with full force to all
II. ANALYSIS
CERCLA and SARA together create two different kinds of
legal actions by which parties can recoup some or all of the
costs associated with cleanups: cost recovery actions, see 42
U.S.C. 9607(a), and contribution actions, see id. 9613(f)(1).
Cost recovery actions are subject to a six-year statute of
limitations, see id. 9613(g)(2), while contribution actions
must be brought within half that time, see id. 9613(g)(3).5
In this case appellants' cause of action, no matter how
it is visualized, accrued no later than early 1987. Compare id.
9613(g)(2)(B) (providing that the trigger date for a cost
recovery action is fixed by the "initiation of physical on-site
construction of the remedial action") with id. 9613(g)(3)(B)
(providing that the accrual period for contribution actions
begins when a "judicially approved settlement" is entered).
Here, the court entered the consent decree in March of 1986 and
remedial construction started at the Site in the same month that
the court entered the consent decree, namely, March of 1986.
Appellants brought suit roughly five and one-half years
thereafter. Thus, the sole question presented on appeal is
whether appellants' action is an action for cost recovery or one
for contribution. If appellants' action qualifies under the
former rubric, it is timely; but, if it is properly classified
the other appellees.
5We set out the text of the centrally relevant statutes, 42 U.S.C. 9607(a), 9613(f) & 9613(g), in an appendix hereto.
under the latter rubric, it comes too late.
Because the issue on appeal turns on the correct
interpretation of the relevant statutory provisions, we exercise
de novo review. See United States v. Gifford, 17 F.3d 462, 472
(1st Cir. 1994) (holding that questions of law engender plenary
appellate review); Liberty Mut. Ins. Co. v. Commercial Union Ins.
Co., 978 F.2d 750, 757 (1st Cir. 1992) (same).
A. The Contours of Contribution.
Four portions of the statute are of immediately obvious
relevance. The only one of the four found in the original CERCLA
legislation is 42 U.S.C. 9607(a)(4). This proviso makes
enumerated parties "liable for . . . all costs of removal or
remedial action incurred by [government entities and] any other
necessary costs of response incurred by any other person
consistent with the national contingency plan." The other three
provisions originated in SARA and are all codified within 42
U.S.C. 9613. Under 42 U.S.C. 9613(f)(1), "[a]ny person may
seek contribution from any other person who is liable or
potentially liable" for response costs. The same section
contains two statutes of limitations. One provides that an
action for cost recovery must be commenced within six years of
the accrual date.6 Id. 9613(g)(2). The other provides that
"[n]o action for contribution for any response costs or damages
may be commenced more than 3 years after . . . the date of . . .
6This subsection speaks in terms "of the costs referred to in [section 9607]." 42 U.S.C. 9613(g)(2).
entry of a judicially approved settlement with respect to such
costs or damages." Id. 9613(g)(3).
It is apodictic that our first recourse must be to
the statute's text and structure. See United States v. O'Neil,
11 F.3d 292, 295 (1st Cir. 1993); United States v. Charles George
Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987). Following this
path, it is evident that CERCLA differentiates between "action[s]
for recovery of . . . costs" and "action[s] for contribution."
Compare 42 U.S.C. 9613(g)(2) with id. 9613(g)(3). Although
Congress did not explicitly plot the boundary that divides these
two types of actions, we are not wholly without guidance. Under
accepted canons of construction, legal terms used in framing a
statute are ordinarily presumed to have been intended to convey
their customary legal meaning. See Bradley v. United States, 410
U.S. 605, 609 (1973) (holding that "the law uses familiar legal
expressions in their familiar legal sense") (citation omitted);
MCA, Inc. v. Wilson, 677 F.2d 180, 186 (2d Cir. 1981) (similar);
see also 2A Norman J. Singer, Sutherland Stat. Const. 47.30, at
262 (5th ed. 1992). This precept has special force when, as now,
there is no persuasive evidence that Congress aspired to use a
particular legal term in some unusual or unorthodox sense.
This canon measurably assists our effort to ascribe
meaning to the word "contribution." Contribution is a standard
legal term that enjoys a stable, well-known denotation. It
refers to a claim "by and between jointly and severally liable
parties for an appropriate division of the payment one of them
has been compelled to make." Akzo Coatings, Inc. v. Aigner
Corp., F.3d , (7th Cir. 1994) [1994 U.S. App. LEXIS
17028 at *5]; accord Northwest Airlines, Inc. v. Transport
Workers Union, 451 U.S. 77, 87-88 (1981); In re "Agent Orange"
Prod. Liab. Litig., 818 F.2d 204, 207 (2d Cir. 1987); see also
Black's Law Dictionary 399 (6th ed. 1990) (defining contribution
as a right "of one who has discharged a common liability to
recover of another also liable, the aliquot portion which he
ought to pay or bear").7 Accordingly, absent evidence that
Congress had a different, more exotic definition in mind, we are
inclined, in parsing 42 U.S.C. 9613, to give the word
"contribution" its generally accepted legal meaning.
The relevant external considerations counsel in favor
of this usage and, thus, solidify our inclination. Perhaps most
important, ascribing a traditional meaning to the term
"contribution" fits both CERCLA's language and its structure.
Under such a reading, the two statutes of limitations complement
each other and together exhaust the types of actions that might
be brought to recoup response costs: the shorter prescriptive
period, contained in 42 U.S.C. 9613(g)(3), governs actions
brought by liable parties during or following a civil action
7Most states have adopted contribution provisions that operate along substantially similar lexicographical lines. See
Northwest Airlines, 451 U.S. at 87 n.17 (collecting exemplars).
This is an important datum because CERCLA's legislative history evinces an intent that courts establish the scope and nature of CERCLA liability consistent with evolving principles of law. See, e.g., 126 Cong. Rec. 30,932 (1980) (statement of Sen.
Randolph); 126 Cong. Rec. 31, 965 (1980) (statement of Rep. Florio).
under 42 U.S.C. 9606-9607(a), while the longer statute of
limitations, contained in 42 U.S.C. 9613(g)(2), addresses
actions brought by innocent parties that have undertaken cleanups
(say, the federal, state or local government).8
This reading fits especially well with the language of
42 U.S.C. 9613(g)(2), which concerns actions for "recovery of
the costs." That phrase, reiterative of the subsection heading
"Actions for recovery of costs," suggests full recovery; and it
is sensible to assume that Congress intended only innocent
parties not parties who were themselves liable to be
permitted to recoup the whole of their expenditures. By
contrast, 42 U.S.C. 9613(g)(3) allows a "non-innocent" party
(i.e., a party who himself is liable) only to seek recoupment of
that portion of his expenditures which exceeds his pro rata share
of the overall liability in other words, to seek contribution
8It is possible that, although falling outside the statutory parameters established for an express cause of action for contribution, see 42 U.S.C. 9613(f)(1), a PRP who spontaneously
initiates a cleanup without governmental prodding might be able to pursue an implied right of action for contribution under 42 U.S.C. 9607(c). See Key Tronic Corp. v. United States, 114 S.
Ct. 1960, 1966 (1994) (explaining that CERCLA now "expressly authorizes a cause of action for contribution in [ 9613] and impliedly authorizes a similar and somewhat overlapping remedy in [ 9607]"); cf. In re Hemingway Transp., Inc., 993 F.2d 915, 931
(1st Cir.) (stating in dictum that "in the event the private- action plaintiff itself is potentially `liable' to the EPA for response costs, and thus is akin to a joint `tortfeasor,' section 9607(a)(4)(B) serves as the pre-enforcement analog to the
`impleader' contribution action permitted under section 9613(f)"), cert. denied, 114 S. Ct. 303 (1993). If, indeed, the
law allows such an implied right of action for contribution to be maintained a matter on which we take no view it is unclear to us whether such a cause of action would be subject to the three- year or the six-year prescriptive period. Because this appeal does not pose that question, we leave it for another day.
rather than complete indemnity. The statutory language thus
suggests that cost recovery and contribution actions are distinct
and do not overlap.
The pre-SARA caselaw and SARA's legislative history
dovetail to furnish strong support for imputing a traditional
meaning to the term "contribution" as it appears in 42 U.S.C.
9613. As originally written, CERCLA gave the EPA several
remedial choices. For example, it could (1) clean up a
contaminated site and then sue to recover its response costs, see
id. 9607(a)(4), (2) endeavor to compel a PRP to perform a
cleanup by administrative order, or, if the PRP proved
recalcitrant, by obtaining a judicial decree, see id. 9606, or
(3) negotiate a settlement, see id. 9622. Despite this array
of weapons, however, CERCLA was and still is silent as to the
extent of a particular PRP's liability. Judges abhor vacuums;
and the courts filled this lacuna in the statute, reading CERCLA
as imposing joint and several liability on the part of all
responsible parties to reimburse the government for cleanup
expenses and to pay response costs. See, e.g., In re Hemingway
Transp., Inc., 993 F.2d 915, 921 (1st Cir.), cert. denied, 114 S.
Ct. 303 (1993); O'Neil v. Picillo, 883 F.2d 176, 178 (1st Cir.
1989), cert. denied, 493 U.S. 1071 (1990).
Notwithstanding the presumed existence of joint and
several liability, there was much uncertainty prior to SARA's
passage as to whether a responsible party could recover from
other PRPs the portion of its cleanup costs that exceeded its pro
rata share. See, e.g., United States v. New Castle County, 642
F. Supp. 1258, 1262 (D. Del. 1986) (noting uncertainty).
Although most courts ultimately ruled that section 9607 conferred
an implied right of action for contribution in favor of a PRP
that paid more than its ratable share, see, e.g., O'Neil, 883
F.2d at 179; Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454,
1457 n.3 (9th Cir. 1986), the situation was clouded by the
Court's refusal to imply rights of action under other statutes in
the absence of an express direction from Congress, see, e.g.,
Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630,
639-40 (1981) (declining to imply right of action for
contribution under the antitrust laws); Northwest Airlines, 451
U.S. at 91-95 (finding no implied right to contribution under
either the Equal Pay Act of 1963 or Title VII of the Civil Rights
Act of 1964).
This background brings the origins of SARA into sharp
focus. A principal goal of the new section 9613 was to
"clarif[y] and confirm[] the right of a person held jointly and
severally liable under CERCLA to seek contribution from other
potentially liable parties, when the person believes that it has
assumed a share of the cleanup or cost that may be greater than
its equitable share under the circumstances." S. Rep. No. 11,
99th Cong., 1st Sess. 44 (1985), reprinted in 2 Legislative
History of the Superfund Amendments and Reauthorization Act of
1986, 636, Sp. Print 101-120 (101st Cong., 2d Sess.) (1990); see
also 131 Cong. Rec. 24,450 (1985) (statement of Sen. Stafford)
(predicting that section 9613 would "remove[] any doubt as to the
right of contribution"). Of paramount significance for present
purposes is that Congress, in enacting SARA, sought to codify the
case law, see O'Neil, 883 F.2d at 179 and the cases decided to
that point, without exception, employed the legal term
"contribution" in its traditional sense to cover an action by one
liable party against another liable party. See, e.g., Bulk
Distrib. Ctrs., Inc. v. Monsanto Co., 589 F. Supp. 1437, 1442-44
(S.D. Fla. 1984); Jones v. Inmont Corp., 584 F. Supp. 1425, 1428-
29 (S. D. Ohio 1984).
Taken in the aggregate, this impressive collection of
signposts canons of construction, other CERCLA language, the
statute's structure, the state of the case law antedating SARA's
passage, and SARA's legislative history point squarely to a
conclusion that Congress used the word "contribution" in the
conventional sense, and fully intended courts to give the word
its customary meaning. The authorities so hold. See Akzo
Coatings, F.3d at [1994 U.S. App. LEXIS 17028 at *7];
Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir. 1989);
Avnet, Inc. v. Allied-Signal, Inc., 825 F. Supp. 1132, 1137-38
(D.R.I. 1992); Transtech Indus., Inc. v. A & Z Septic Clean, 798
F. Supp. 1079, 1086 (D.N.J. 1992), appeal dism'd, 5 F.3d 51 (3d
Cir. 1993), cert. denied, 114 S. Ct. 2692 (1994); see also Key
Tronic Corp. v. United States, 114 S. Ct. 1960, 1965-66 (1994)
(observing that section 9613(f) expressly created a cause of
action permitting a responsible party to seek contribution from
other PRPs).
Applying this legal regime to the facts at hand, and
bearing in mind that appellants are by their own admission liable
parties, their claim against Browning must be classified as an
action for contribution. Hence, unless the claim can otherwise
be saved, it will fall prey to the three-year bar of 42 U.S.C.
9613(g)(3).
B. The Statutory Interface.
Appellants argue that, notwithstanding section
9613(f)(3), the broad, unqualified language to the effect that
responsible parties shall be liable to "any other person," 42
U.S.C. 9607(a)(4), provides an alternative avenue for the
maintenance of their suit. If this is so, appellants add, the
six-year statute of limitations found in section 9613(g)(2),
pertaining to actions for "recovery of the costs referred to in
[ ] 9607" must govern in this instance.
At face value, this expansive reading of section 9607
is untenable; carried to its logical extreme, such a reading
would completely swallow section 9613(g)(3)'s three-year statute
of limitations associated with actions for contribution. Since
courts must strive to give effect to each subsection contained in
a statute, indeed, to give effect to each word and phrase, see
United States v. Nordic Village, Inc., 112 S. Ct. 1011, 1015
(1992); United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52
(1st Cir. 1985), we refuse to follow a course that ineluctably
produces judicial nullification of an entire SARA subsection.
Recognizing this looming obstacle, appellants attempt
to skirt it by lowering their sights and, thus, preserving some
semblance of utility for 42 U.S.C. 9613(g)(3). In this vein,
they focus on the phrase "incurred by," as used in 42 U.S.C.
9607(a), and asseverate, based on this language, that section
9607(a) only covers actions to recoup cleanup costs directly paid
for (i.e., "incurred") by a responsible party (what we have
termed first-instance costs, see supra p. 4). If this
construction were adopted, then an action for recoupment of sums
paid by a responsible party to a government agency to compensate
it, pursuant to a settlement or judgment, for the funds it
expended in cleaning up a site (what we have termed reimbursed
costs, see supra p. 4), would lie under section 9613(f), but not
under section 9607(a). Hence, section 9613(g)(3) would retain
some measure of vitality, for an action by a responsible party
against other PRPs to recover that portion of the reimbursed
costs paid by the former in excess of its pro rata share would
constitute a contribution claim, subject to the three-year
prescriptive period.9
We are not persuaded by this sleight of hand. For one
thing, appellants' reading depends on excerpting phrases from
section 9607(a) without due regard for the statute's overall
9As an example, appellants suggest that an attempt to recover some part of the $475,000 payment they made to compensate the EPA and Maine for the latters' cleanup expenditures would be subject to the three-year limitations period, while an attempt to recover a portion of the response costs ($13,000,000 to date) paid directly by appellants could be brought under section 9607(a) and come within the six-year limitations period.
content. The full text of the relevant subsection, reproduced in
the appendix infra, makes selected parties liable for "any other
necessary costs of response incurred by any other person." This
unqualifiedly broad language comfortably accommodates all
response costs incurred by a private party, not just first-
instance costs. In a nutshell, accepting appellants' position
would require us to read section 9607's language ("any other
necessary costs") as containing an implicit qualification:
"except for monies paid to reimburse government entities' cleanup
costs." There is simply no rhyme or reason for reading that
condition into what appears on its face to be a straightforward
statutory directive. See, e.g., CIA v. Sims, 471 U.S. 159, 169-
70 (1985) (refusing to read limitations into broad and
unconditional statutory language). Under the reading that we
adopt, by contrast, the unqualified language "any other necessary
costs" remains as Congress wrote it, that is, without
qualification.10 We think that this reading is preferable.
For another thing, appellants' tracing of the statutory
interface is wholly dependent on an unusually cramped reading of
the term "contribution." Under appellants' theory, the term
refers only to reimbursed costs. This artificial circumscription
entirely omits from the sweep of section 9613 what might be
called "traditional" contribution actions. We know of no other
court that has given such an odd definition to the term
10As discussed above, see supra p. 11, 42 U.S.C.
9613(f)(1) explicitly confirms the cause of action for contribution that is implicit in the language of 9607(a).
"contribution" in this or any other context; and, though we
recognize that we are not bound to interpret the word as it is
defined by state law, see 42 U.S.C. 9613(f)(1) (providing that
claims for contribution "shall be governed by Federal law"), the
responsibility to develop federal common law is not a license to
override policy choices made by the Congress or to create
newfangled definitions for no better reason than that they suit a
party's convenience or strike a judge's fancy. The meaning to be
attributed to terms governed by federal law must, at the very
least, comport with the statutory scheme in which such terms
appear, and, wherever possible, effectuate discernible
congressional intent. Put bluntly, a court cannot rewrite a
statute by the simple expedient of calling a camel a horse,
overlooking obvious humps.
Appellants' suggested interpretation fails this
commonsense test on two grounds. First, 42 U.S.C. 9613 itself
appears to reject any distinction for the purposes of
contribution between first-instance costs and reimbursed costs.
After all, subsection 9613(f)(3)(B) authorizes a party to seek
contribution "for some or all of the response action or for some
or all of the costs of such action . . ." The simple reading of
this subsection is that the initial phrase refers to expenses
incurred in the course of a liable party's direction of a site's
cleanup while the second phrase refers to reimbursement of
cleanup costs incurred under the government's hegemony.
The legislative history confirms this explanation. In
formulating SARA, the Senate Committee on Environment and Public
Works viewed what is now section 9613(f) as intended to permit an
action for contribution when a party believed that it had
"assumed a share of the cleanup or cost that may be greater than
its equitable share." S. Rep. No. 11, supra. By like token, the
House Committee on Energy and Commerce stated that contribution
could be had under section 9613(f) by parties "who settle for all
or part of a cleanup or its costs . . ." H.R. Rep. No. 253, pt.
1, 99th Cong., 2d Sess. 80 (1985), reprinted in 1986 U.S.C.C.A.N.
2835, 2862. These statements show beyond serious question that
the drafters intended contribution, as that term is used in
section 9613, to cover parties' disproportionate payments of
first-instance costs as well as parties' disproportionate
payments of reimbursed costs.
Second, appellants' construction emasculates the
contribution protection component of CERCLA's settlement
framework. CERCLA seeks to provide EPA with the necessary tools
to achieve prompt cleanups. See United States v. Cannons
Engineering Corp., 899 F.2d 79, 90-91 (1st Cir. 1990). One such
tool is the ability to foster incentives for timely settlements.
See id. To this end, 42 U.S.C. 9613(f)(2) provides that a
party who settles with the government "shall not be liable for
claims for contribution regarding matters addressed in the
settlement." Because only the amount of the settlement, not the
pro rata share attributable to the settling party, is subtracted
from the aggregate liability of the nonsettling parties, see id.,
section 9613(f)(2) envisions that nonsettling parties may bear
disproportionate liability. This paradigm is not a scrivener's
accident. It "was designed to encourage settlements and provide
PRPs a measure of finality in return for their willingness to
settle." Cannons Engineering, 899 F.2d at 92; see also H.R. Rep.
No. 253, supra, 1986 U.S.C.C.A.N. at 2862.
This mechanism for encouraging settlement would be
gutted were courts to share appellants' view of the contribution
universe, for subsection 9613(f)(2) then would afford very little
protection. Although the subsection still would prevent a
settlor from being sued by another responsible party claiming
that the first settlor paid less than its ratable share of the
government's expenses (what we have termed "reimbursed costs"),
the statutory shield would not extend beyond that point. Most
disturbingly, if a party's direct, first-instance payments are
not grist for the contribution mill, but, instead, are to be
treated as recovery costs within the purview of section 9607(a),
a nonsettling or later-settling PRP would be entitled to bring an
action against a responsible party who settled at the earliest
practicable moment, but paid less than his ratable share of the
aggregate first-instance payments. Exposing early settlors who
make first-instance payments to later contribution actions not
only would create a needless asymmetry in the treatment of first-
instance costs as opposed to reimbursed costs, but also would
greatly diminish the incentive for parties to reach early
settlements with the government, thereby thwarting Congress's
discernible intent.11 This result makes little sense, and,
therefore, we reject appellants' tortured construction of the
statutory language.
III. CONCLUSION
The word "contribution" for purposes of 42 U.S.C.
9613(f) should be given its plain meaning. Adapted to an
environmental case, it refers to an action by a responsible party
to recover from another responsible party that portion of its
costs that are in excess of its pro rata share of the aggregate
response costs (including both first-instance costs and
reimbursed costs). Applying this definition, the instant action
clearly qualifies as an action for contribution under section
9613(f)(1). And because CERCLA's text indicates that
contribution and cost recovery actions are distinct, non-
overlapping anodynes,12 the action had to be commenced within
three years of its accrual. See 42 U.S.C. 9163(g)(3).
We need go no further. Appellants did not deign to sue
until some six and one-half years after entry of the consent
11It bears mention that CERCLA's contribution protection provisions also would be undermined if cost recovery actions were deemed to be overlapping with contribution actions.
12Envisioning contribution and cost recovery actions as non- overlapping is perfectly consistent with the Court's recent determination that 42 U.S.C. 9613 and 9707(a) create "similar and somewhat overlapping" actions for contribution. Key Tronic,
114 S. Ct. at 1966. The Key Tronic Court was discussing two
different species of contribution actions and expressed no views anent the relation between contribution and cost recovery actions.
decree. Their suit is, therefore, time-barred.13
Affirmed.
13The court below reached the same result based on somewhat different reasoning. While its rationale strikes us as problematic, we see little point in tilting at windmills. An appellate court is not chained to the lower court's reasoning, but may affirm the judgment below on any independently sufficient basis made manifest by the record. See Garside v. Osco Drug,
Inc., 895 F.2d 46, 49 (1st Cir. 1990); Polyplastics, Inc. v.
Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir. 1987). Thus, we
endorse the result reached below solely for the reasons stated herein.