ELR Citation: ELR 21356
No(s). 93-2253 (1st Cir. Aug 19, 1994)

The court holds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(g)(3)'s three-year statute of limitations for contribution actions bars an action by potentially responsible parties (PRPs) to recover from other PRPs some of their costs of cleaning up a contaminated landfill in Winthrop, Maine, and some of their costs of reimbursing the U.S. Environmental Protection Agency (EPA) for the Agency's expenditures at the site. The court first holds that the appellants' cause of action accrued no later than early 1987, five-and-one-half years before they brought suit. Thus, if the action is one for cost recovery, it is timely under §113(g)(2), while if it is a contribution suit, it comes too late.

The court notes that the customary legal meaning of the term "contribution" is 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. This usage of the term is supported by CERCLA's language and structure and the fact that §113(g)(2) is entitled "actions for recovery of costs," suggesting full recovery. In contrast, §113(g)(3) allows a party who is itself liable only to seek recoupment of that portion of its expenditures that exceed its pro rata share of liability—but not complete indemnity. The court holds that the contribution provision's legislative history indicates that the provision was intended to codify prior case law, which without exception employed the legal term "contribution" in its traditional sense to cover an action by one liable party against another liable party. The court holds that canons of construction, other CERCLA language, the statute's structure, prior case law, and the provision's legislative history all point to the conclusion that Congress used the word "contribution" in the conventional sense.

The court next holds that despite §107's language to the effect that responsible parties shall be liable to "any other person" without qualification as to whether that other person is also liable, §107 does not provide an alternate avenue for the appellants' suit. Such a reading would completely swallow §113's three-year statute of limitations associated with actions for contribution. The court next holds that contribution does not only refer to actions in which a PRP tries to recover money it paid to reimburse the government for the government's costs (reimbursed costs), and cost recovery does not only refer to a PRP's attempt to recover all other money it paid directly for cleanup (first-instance costs). CERCLA §107(a)'s language authorizing recovery of "any necessary costs of response" accommodates all response costs incurred by a private party, including reimbursed costs. Limiting §113 to reimbursed costs entirely omits "traditional" contribution actions, and §113 appears to reject any distinction between first-instance costs and reimbursed costs. Also, the legislative history shows that Congress intended the provision to cover parties' disproportionate payment of first-instance costs as well as of reimbursed costs. Limiting §113 to reimbursed costs would emasculate CERCLA's contribution protection for settlors, leaving a responsible party who settled at the earliest practicable moment, but paid less than its ratable share of the aggregate first-instance costs open to suit.

Counsel for Plaintiffs
Peter Buscemi
Morgan, Lewis & Bockius
1800 M St. NW, Washington DC 20036
(202) 467-7000

Counsel for Defendants
John A. Ciraldo
Perkins, Thompson, Hinckley & Keddy
One Canal Plaza
P.O. Box 426, Portland ME 04112
(207) 774-2635

Before Breyer^* and Torruella, JJ.: