Waterville Industries, Inc. v. Finance Authority of Maine, s. 92-1225

• Citation: 984 F.2d 549
• Decision Date: 06 October 1992
• Docket Number: Nos. 92-1225,92-1338,s. 92-1225
• Parties: , 36 ERC 1969, 61 USLW 2503, 23 Envtl. L. Rep. 20,752 WATERVILLE INDUSTRIES, INC., Plaintiff, Appellee, v. FINANCE AUTHORITY OF MAINE, Defendant, Appellant. WATERVILLE INDUSTRIES, INC., Plaintiff, Appellant, v. FINANCE AUTHORITY OF MAINE and First Hartford Corporation, Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 549

984 F.2d 549

36 ERC 1049, 36 ERC 1969, 61 USLW

2503, 23 Envtl. L. Rep. 20,752

WATERVILLE INDUSTRIES, INC., Plaintiff, Appellee, v. FINANCE AUTHORITY OF MAINE, Defendant, Appellant.

WATERVILLE INDUSTRIES, INC., Plaintiff, Appellant, v. FINANCE AUTHORITY OF MAINE and First Hartford Corporation,

Defendants, Appellees.

Nos. 92-1225, 92-1338.

United States Court of Appeals, First Circuit.

Heard Oct. 6, 1992.

Decided Feb. 3, 1993.

Martha C. Gaythwaite with whom Harold J. Friedman, Friedman & Babcock, Stephen A. Canders and Elizabeth Bordowitz, Augusta, ME, were on brief, for Finance Authority of Maine.

Jotham D. Pierce, Jr. with whom Adam H. Steinman, Eileen J. Griffin, and Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, ME, were on brief, for Waterville Industries, Inc.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

Waterville Industries, Inc., brought suit against the Finance Authority of Maine ("FAME") seeking contribution to "response costs" assessed against Waterville Industries by the Environmental Protection Agency under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. FAME, claiming the protection of statutory exceptions to CERCLA liability, appeals from the district court's decision that it is responsible for 60 percent of those costs. Waterville Industries cross-appeals from the district court's refusal to order FAME to contribute to its attorneys' fees. We conclude that FAME is exempt from contribution under CERCLA and therefore do not reach the cross-appeal relating to the amount of contribution.

I.

This action arises out of efforts to clean up two waste water lagoons located at a defunct textile mill in Waterville, Maine. Although the genesis of the mill is neither clear from the record nor critical to the case, it appears that the First Hartford Corporation developed the mill in the early 1970's with state assistance. ¹ In or about 1972, First Hartford acquired the property, sold it to Waterville Textile Development Corporation--a quasi-public corporation unconnected with the appellee in this case--and then leased it back. Loans in connection with the project were made to First Hartford by Society for Savings, an out-of-state lender, and secured by mortgages on the property, which Society for Savings held. The loans were guaranteed by appellant FAME, an instrumentality of the state of Maine. ²

In 1980, First Hartford defaulted on the loans. As a result, FAME pursuant to its guarantee made substantial payments to Society for Savings to cure the defaults, assumed First Hartford's future obligations to Society for Savings, and received from the latter an assignment of the mortgages. On the same day that it received the mortgages, March 14, 1980, FAME accepted a deed in lieu of foreclosure from Waterville Textile Development Corporation and became the holder of title to the property.

On the same day, FAME leased the property back to First Hartford to allow First Hartford to continue to operate the mill. The new lease required First Hartford to make monthly payments directly to Society for Savings to cover obligations coming due on the original debt which FAME had assumed. The lease also required First Hartford to pay an additional $22,340 per month directly to FAME. During the period in which First Hartford operated the mill as a lessee of FAME, First Hartford released certain hazardous wastes into two lagoons associated with the mill.

First Hartford continued to experience financial trouble after the March 14, 1980, transactions, and filed for Chapter 11 bankruptcy protection on February 20, 1981. First Hartford ceased operations at the mill on October 6, 1981. Apparently a dispute then occurred between First Hartford and FAME as to whether First Hartford had a continuing interest in the property. This dispute was resolved in a "settlement stipulation" approved by the bankruptcy court on July 29, 1982, which provided that "title to the Real Property is vested solely in [FAME]," but which gave First Hartford until October 15, 1982, to find a buyer for the property.

First Hartford did not find a buyer by October 15, 1982, and on or about March 29, 1983, FAME contracted with an auctioneer to sell the property. An auction was held on August 19, 1983, and MKY Realty was the high bidder. On September 23, 1983, FAME and MKY Realty entered into a contract for the sale of the property, and on November 15, 1983, FAME conveyed the property to Gano Industries, the nominee of MKY Realty. Gano Industries later changed its name to Waterville Industries, the appellee in this case.

II.

In September 1988, the EPA filed an administrative complaint against Waterville Industries seeking penalties and response costs under CERCLA in connection with the clean-up of the lagoons. As the current owner of the property, Waterville Industries was liable for such costs under the statute. 42 U.S.C. § 9607(a)(1). Waterville Industries entered into a consent agreement with EPA to clean up the property. It has now incurred substantial engineering costs in connection with the clean-up, and further expenses are expected. Waterville Industries then brought this action pursuant to CERCLA contending that FAME, as a former owner of the property, is liable for contribution. 42 U.S.C. § 9613(f) (authorizing contribution action against "any other person who is liable or potentially liable" for clean-up costs).

CERCLA holds several categories of persons liable for the clean-up of hazardous substances at a facility, including "any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of[.]" 42 U.S.C. § 9607(a)(2). Waterville Industries argues that FAME is liable for contribution because it "owned" the property between March 14, 1980, and October 6, 1981, during which time hazardous substances were released into the lagoons by First Hartford. The statute, however, contains exceptions to the definition of an "owner," one of which excludes from that status "a person, who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect his security interest in the vessel or facility." 42 U.S.C. § 9601(20)(A).

FAME has contended throughout the litigation that it falls within this security interest exception from CERCLA liability. Waterville Industries' main response is that when FAME accepted a deed in lieu of foreclosure on March 14, 1980, it "became the owner in fee simple of the land, and the mortgages merged into the deed and disappeared." At that point, Waterville Industries argues, FAME no longer had a "security interest" to protect because it was the outright owner of the property, and therefore the secured creditor exception by its terms became inapplicable. The district court accepted this reasoning, holding:

From March 14, 1980, to October 6, 1981 [the date First Hartford ceased operations,] [FAME] was an owner with a leasehold relationship to the operator and was during that time no longer protecting a security interest as it might have been had it been a mortgagee or as it might have done prior to its taking the March 14, 1980, deed.

Our own analysis begins with the construction of CERCLA's security interest exception, plainly an issue of law. ³ The purpose of the exception, apparent from its language and the statutory context, is to shield from liability those "owners" who are in essence lenders holding title to the property as security for the debt. Congress may have been concerned with maintaining sources of credit or may have thought that CERCLA's far-reaching liability should be limited to those owners who had the real equity interest in the property. In all events, legislative history and case law confirm that Congress had in mind not only the classic case of the bank mortgage but also equivalent devices serving the same function, such as lease financing arrangements. ⁴

Our review of the record persuades us that what FAME received from Waterville Textile Development Corporation through the March 14, 1980, transactions was the nominal title typical of the lender in a lease financing transaction. Waterville Textile Development Corporation was a quasi-public development corporation used in connection with the 1972 loans in order to hold title to the property; it purchased the property from First Hartford for $1 and then leased it back to First Hartford. That lease in turn gave First Hartford an option to buy the property for $1 at the end of the lease (or, based on formula payments, even before the lease expired if it chose). This is an ordinary lease financing arrangement, commonly called a sale and lease back. See, e.g., In re PCH Assocs., 949 F.2d 585, 599-600 (2d Cir.1991).

When FAME acquired title from Waterville Textile Development Corporation on March 14, 1980, it simultaneously re-leased the property to First Hartford, altering the payment terms as already described. But the new lease, which is part of the record, also provides that "[e]xcept as modified or referred to by the terms of this Agreement, in all other respects, the Underlying Leases and Sublease between [Waterville Textile] Development, [First Hartford] Realty and First Hartford shall remain in full force and effect." Thus, First Hartford's payment obligations were altered but its option to buy the property for $1 remained in force and the lease financing character of the transaction remained unchanged.

The payments required under the new March 14, 1980, lease reinforce our conclusion. First Hartford was committed to continue payments to Society for Savings just as before and also to make monthly payments of just over $22,000 directly to FAME. Although Waterville Industries points to the latter payment as "profits" inconsistent with the supposed passive-lender role of...