33 F.3d 96 (1st Cir. 1994), 93-2253, United Technologies Corp. v. Browning-Ferris Industries, Inc.

Docket Nº:93-2253.
Citation:33 F.3d 96
Party Name:UNITED TECHNOLOGIES CORPORATION, et al., Plaintiffs, Appellants, v. BROWNING-FERRIS INDUSTRIES, INC., et al., Defendants, Appellees.
Case Date:August 19, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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33 F.3d 96 (1st Cir. 1994)

UNITED TECHNOLOGIES CORPORATION, et al., Plaintiffs, Appellants,


BROWNING-FERRIS INDUSTRIES, INC., et al., Defendants, Appellees.

No. 93-2253.

United States Court of Appeals, First Circuit

August 19, 1994

Heard April 7, 1994.

Peter Buscemi, with whom Howard T. Weir, Thomas J. O'Brien, Ellen B. Steen, Morgan, Lewis & Bockius, Washington, DC, Jeffrey A. Thaler, and Berman & Simmons, P.A., Lewiston, ME, were on brief, for appellants.

Robert L. Gulley, with whom Samuel B. Boxerman, Sidley & Austin, Washington, DC, John A. Ciraldo, and Perkins, Thompson, Hinckley & Keddy, Portland, ME, were on brief, for appellee Browning-Ferris Industries, Inc.

Arlyn H. Weeks and Conley, Haley & O'Neil, Bath, ME, on brief for appellee Central Maine Power Co.

Edward E. Shea, Clayton A. Prugh, Elizabeth A. Bryson, Windels, Marx, Davies &

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Ives, New York City, Nicholas M. Lanzilotta and Colby & Lanzilotta, Augusta, ME, on brief for appellee Carleton Woolen Mills, Inc.

Before BREYER, [*] Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This appeal demands that we clarify the relationship between cost recovery actions and contribution actions under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Secs. 9601-9675 (1987), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, Sec. 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.


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 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-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

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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, see, e.g., Brennan v. Hendrigan, 888 F.2d 189, 196 (1st Cir.1989) (explaining that pretrial termination of federal-law claims forces dismissal of pendent state-law claims in the absence of any other cognizable basis for federal 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. This appeal followed. 4


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. Sec. 9607(a), and contribution actions, see id. Sec. 9613(f)(1). Cost recovery actions are subject to a six-year statute of limitations, see id. Sec. 9613(g)(2), while contribution actions must be brought within half that time, see id. Sec. 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. Sec. 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. Sec. 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 apparently started at the Site within one year of that event. 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 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).

  1. 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. Sec. 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. Sec. 9613. Under 42 U.S.C. Sec. 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. Sec. 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 ... entry of a judicially

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    approved settlement with respect to such costs or damages." Id. Sec. 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. Sec. 9613(g)(2) with id. Sec. 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, 93 S.Ct. 1151, 1154-55, 35 L.Ed.2d 528 (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. Sec. 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., 30 F.3d 761, 764 (7th Cir.1994); accord Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 87-88, 101 S.Ct. 1571, 1578-79, 67 L.Ed.2d 750 (1981); In re "Agent Orange" Prod. Liab. Litig...

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