Sun Co., Inc. (R&M) v. Browning-Ferris, Inc.
| Decision Date | 14 August 1997 |
| Docket Number | INC,BROWNING-FERRI,No. 96-5222,96-5222 |
| Parties | , 143 A.L.R. Fed. 755, 27 Envtl. L. Rep. 21,465, 97 CJ C.A.R. 1611 SUN COMPANY, INC. (R&M), a Delaware corporation; Texaco, Inc., a Delaware corporation, Plaintiffs--Appellants, v., a Delaware corporation; Ark Wrecking Company of Oklahoma, Inc.; Housing Authority for the City of Tulsa; Pedrick Labs; John Doe D/B/A Pedrick Labs; Art Weedin; Beverage Products Corp.; 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 Oil Company; Borg Industrial Group Inc., D/B/A American Container Services; Consolidated Cleaning Service Co. Inc.; 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, Deceased; Shipley Refuse; Robert E. Sparks, d/b/a Tulsa Industrial Services; Union Carbide Corp.; Waste Management of Oklahoma, Inc., Defendants-Appellees, and Bank IV Oklahoma, N.A.; Stan Doyle; Flemings Roofing and Sheet Metal Company; Grant Gill, D/B/A Gill Sanitation; Insulation Services, Inc.; WRG Construction Company, Inc.; W.R. Grimshaw, D/B/A WRG Construction; Tulsa County public facilities authority; James P. Evatt; F & G Excavation; John Doe, D/B/A F & G Excavation; Nellie Farris; First Tower Construction; John Doe, D/B/A First Tower Construction; Marvin R. Hall; Sm Roof; John Doe, D/B/A Sm Roof; Estate of Ross Scoggins, Sr., Deceased; Tandy Industries, Inc.; W & D Building; John Doe, D/B/A W & D Building; Wade Trash; John Doe, D/B/A Wade Trash; Compass Industries, Inc.; Estate of Jack Dyer, Deceased; Roy L. Farris; Noland Construction Co.; John Doe, D/B/A Noland Construction Co.; Mannon Trucking; John Doe, D/B/A Mannon Trucking; Mobile Waste Controls; John Doe, D/B/A Mobile Waste Controls; Tulsa Tank Cleaning; John Doe, D/B/A Tulsa Tank Cleaning; Apartment Container Service, Inc.; Carnes Brothe |
| Court | U.S. Court of Appeals — Tenth Circuit |
John H. Tucker, Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, Oklahoma (Robert P. Redemann and Michael F. Smith with him on the brief), for Plaintiffs-Appellants.
William C. Anderson, Doerner, Saunders, Daniel & Anderson, Tulsa, Oklahoma (Russell W. Kroll with him on the brief), for Defendants-Appellees.
Before KELLY, McWILLIAMS and HENRY, Circuit Judges.
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 Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9607 and 9613. 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 district 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 remediation costs. With this as the accrual date, the bulk of Plaintiffs' contribution claims were time-barred. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm in part and reverse in part.
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 landfill from 1972 to 1976. During this time, hazardous materials 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. Remediation activities began in January 1990, and were completed 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 summary judgment on the § 107 action, holding that PRPs 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 limitations 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 damages, or
(B) the date of an administrative order under section 9622(g) of this title (relating to de minimis settlements) or 9622(h) of this title (relating to cost recovery settlements) or entry of a judicially approved settlement with respect to such costs or damages.
42 U.S.C. § 9613(g)(3). Plaintiffs incurred cleanup costs in response to an EPA unilateral administrative order under § 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 possible future costs, as the EPA's remediation order provides for thirty years of maintenance and review of the Site. Thus, it declined to rule on Plaintiffs' declaratory action regarding apportionment of such future costs, and requested further briefing on the issue. Such briefing has been abated pending the outcome of this appeal.
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). Summary 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 correctly applied by the district court." Id. .
In Colorado & Eastern, we attempted to clarify the relationship between cost recovery actions under § 107 and contribution actions under § 113, specifically addressing 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 certain enumerated parties (PRPs) "liable for (A) all costs of removal or remedial action incurred by [government entities] ...; [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...
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