118 F.3d 1298 (9th Cir. 1997), 96-16334, Pinal Creek Group v. Newmont Min. Corp.

Docket Nº:96-16334.
Citation:118 F.3d 1298
Party Name:97 Cal. Daily Op. Serv. 5266, 97 Daily Journal D.A.R. 8565 The PINAL CREEK GROUP, consisting of Cyprus Miami Mining Corporation, Inspiration Consolidated Copper Company, and Magma Copper Company, Plaintiff-Appellee, v. NEWMONT MINING CORP.; Occidental Petroleum Corporation; Canadianoxy Offshore Production Company; Atlantic Richfield Company; Phelps
Case Date:July 02, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1298

118 F.3d 1298 (9th Cir. 1997)

97 Cal. Daily Op. Serv. 5266,

97 Daily Journal D.A.R. 8565

The PINAL CREEK GROUP, consisting of Cyprus Miami Mining

Corporation, Inspiration Consolidated Copper

Company, and Magma Copper Company,



NEWMONT MINING CORP.; Occidental Petroleum Corporation;

Canadianoxy Offshore Production Company; Atlantic

Richfield Company; Phelps Dodge

Corporation, Defendants-Appellants.

No. 96-16334.

United States Court of Appeals, Ninth Circuit.

July 2, 1997

Argued and Submitted Dec. 12, 1996.

Page 1299

Shane R. Swindle, Dalton, Gotto, Samson & Kilgard, Phoenix, AZ, for Newmount Min. Corp.

Michael D. Young, Tiffany Hedgpeth, McClintock, Weston, Benshoof, Rochefort, Rubalcava & MacCuish LLP, Los Angeles, CA, for Phelps Dodge Corp.

Michael J. Gallagher, Davis, Graham & Stubbs, Denver, CO, for ARCO.

Michael P. Berman, Kim E. Williamson, Lowe & Berman, Phoenix, AZ, for Occidental Petroleum and Canadianoxy.

Nicholas J. Wallwork, Muchmore & Wallwork, Phoenix, AZ, for Plaintiff-Appellee.

Jeremy Heep, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, for amicus curiae United States.

Tamara L. Huddleston, Assistant Attorney General, Phoenix, AZ, for amicus curiae State of Arizona.

Craig J. Reece, Assistant City Attorney, Hugh H. Marthinsen, Squire, Sanders & Dempsey, Phoenix, AZ, for amicus curiae City of Phoenix, AZ.

Barbara R. Goldberg, Assistant City Attorney, Scottsdale, AZ, for amicus curiae City of Scottsdale, AZ.

Karen S. Gaylord, Assistant City Attorney, Tempe, AZ, for amicus curiae City of Tempe, AZ.

Appeal from the United States District Court for the District of Arizona; Roslyn O. Silver, District Judge, Presiding. D.C. No. CV-91-01764-ROS.

Before: GOODWIN, FERGUSON and TASHIMA, Circuit Judges.

TASHIMA, Circuit Judge:

This case requires us to decide whether the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 ("CERCLA"), provides a party who is partly liable for the cleanup of a hazardous waste site with a claim against other potentially responsible parties

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("PRPs") for the joint and several recovery of the totality of its cleanup costs. We answer in the negative.


"CERCLA was a response by Congress to the threat to public health and the environment posed by the widespread use and disposal of hazardous substances. Its purpose was to ensure the prompt and effective cleanup of waste disposal sites, and to assure that parties responsible for hazardous substances bore the cost of remedying the conditions they created." Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1455 (9th Cir.1986).

Plaintiff is composed of three mining companies who have engaged in the voluntary cleanup of the Pinal Creek Drainage Basin, a hazardous waste site located in Arizona. In order to coordinate cleanup efforts, plaintiff companies formed the Pinal Creek Group (collectively, the "Pinal Group"). The Pinal Group commenced this action in an effort to recover all (or, alternatively, some) of its cleanup costs from other PRPs.

Although the Pinal Group has admitted that it is partly responsible for a portion of these cleanup costs, it has asserted a claim for the totality of these costs and seeks to impose joint and several liability on defendants for that amount. The Pinal Group contends that defendants would then be entitled to assert a contribution claim against it (the Pinal Group) to recover that portion of the costs for which the Pinal Group would be responsible.

All defendants moved to dismiss the claim that sought to impose on them joint and several liability for all response costs incurred by the Pinal Group. The district court denied defendants' motion to dismiss. However, it certified its order for an immediate interlocutory appeal, pursuant to 28 U.S.C. § 1292(b). We granted the petition for interlocutory review. Thus, we have jurisdiction under 28 U.S.C. § 1292(b), and we reverse.


A. Overview

The district court's interpretation of a statute is a question of law which we review de novo. Parravano v. Babbitt, 70 F.3d 539, 543 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 2546, 135 L.Ed.2d 1066 (1996). Our appellate jurisdiction under 28 U.S.C. § 1292(b) applies to the order certified to us and is not "tied to the particular question formulated by the district court." Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, ----, 116 S.Ct. 619, 623, 133 L.Ed.2d 578 (1996). As the Seventh Circuit has stated, "it is the order that is before us on appeal, rather than the questions themselves." Rumpke of Ind., Inc. v. Cummins Engine Co., 107 F.3d 1235, 1239 (7th Cir.1997) (citing Yamaha ).

Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), authorizes suits against certain "statutorily defined 'responsible parties' to recover costs incurred in cleaning up hazardous waste disposal sites." Mardan, 804 F.2d at 1455. Under § 107, each such PRP 1 shall be liable for:

(A) all costs ... incurred by the United States Government or a State or an Indian tribe ... [and]

(B) any other necessary costs of response incurred by any other person....

42 U.S.C. § 9607(a)(4)(A) & (B).

Because CERCLA originally did not explicitly recognize a claim for contribution, Congress amended it in 1986 to clarify and confirm that CERCLA did incorporate such a claim. Key Tronic Corp. v. United States, 511 U.S. 809, 814-18, 114 S.Ct. 1960, 1965-66, 128 L.Ed.2d 797 (1994); United Tech. Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 100-01 (1st Cir.1994). Section 113(f) was thus enacted, explicitly recognizing and regulating contribution claims under CERCLA. 2

Page 1301

The Pinal Group argues that, under § 107, it is entitled to recover, jointly and severally, the totality of its response costs from defendants (the "Newmont PRPs"). The Pinal Group relies on the language of § 107 which makes all PRPs liable for "any ... necessary costs of response incurred by any other person." 42 U.S.C. § 9607(a)(4)(B).

The Newmont PRPs counter that, even if the Pinal Group is free to assert a claim under § 107, their liability to the Pinal Group would be for contribution under the combined effect of §§ 107 and 113. Accordingly, the Newmont PRPs argue that the liability of each of them would be several, and not joint, and would extend only to each party's own equitable share of the costs incurred by the Pinal Group. We agree.

Because all PRPs are liable under the statute, a claim by one PRP against another PRP necessarily is for contribution. A PRP's contribution liability will correspond to that party's equitable share of the total liability and will not be joint and several. 3 CERCLA simply does not provide PRPs who incur cleanup costs with a claim for the joint and several recovery of those costs from other PRPs. As discussed below, our holding today is mandated by the text, structure, and legislative history of §§ 107 and 113, as well as by precedent.

B. Analysis

The text of § 107 leads to the conclusion that only a claim for contribution lies between PRPs. Under the literal language of § 107, the Pinal Group, as a PRP, is partly responsible for its cleanup costs and, as "any other person" under § 107, can also hold other PRPs liable for a portion of those same costs. This duality is best implemented by permitting a PRP who has incurred cleanup costs to assert only a contribution claim against other PRPs. Viewed in that way, the Pinal Group is responsible only for that portion of the liability which it equitably should bear anyway, while being entitled to hold other PRPs severally liable for each of their, respective, equitable shares of the total costs. That is the essence of a claim for contribution which, albeit implicitly, is imbedded in the text of § 107.

This conclusion--that § 107 implicitly incorporates a claim for contribution--is unremarkable; most courts had so held even before Congress settled the issue by enacting § 113(f). Key Tronic, 511 U.S. at 809, 814-15 & 816 n. 7, 114 S.Ct. at 1960, 1965 & 1965 n. 7 (recognizing that "numerous cases" interpreted § 107...

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