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Sun Co. v. Browning-Ferris, Inc.

ELR Citation: 27 ELR 21465
Nos. 96-5222, 124 F.3d 1187/(10th Cir., 08/14/1997) Aff'g in part & rev'g in part

The court holds that the six-year limitations period in §113(g)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) governs the contribution claims of potentially responsible parties (PRPs) who incurred cleanup costs pursuant to a CERCLA §106 unilateral administrative order. The court first holds that plaintiff PRPs' claim against other PRPs is one for contribution, rather than cost recovery, because it is a claim by and between jointly and severally liable parties seeking the equitable apportionment of a payment that plaintiffs have been compelled to make. The court rejects plaintiffs' argument that because they did not incur cleanup costs pursuant to a civil action under §106 or §107, plaintiffs are not limited to a §113 contribution claim, but may assert a §107 cost recovery claim. The fact that plaintiffs incurred cleanup costs by complying with a unilateral administrative order, without forcing the government to take them to court, does not change their status as jointly and severally liable parties.

The court next holds that §113(g)(2)'s six-year limitations period governs plaintiffs' claims. While §113(g)(3) establishes a three-year limitations period for contribution actions, none of the triggering events listed in that section will occur unless a PRP incurs its cleanup costs pursuant to §106 or §107 civil action by the government. Thus, PRPs who, like plaintiffs here, incur cleanup costs pursuant to a unilateral administrative order potentially have an unlimited time in which to bring their contribution claims. The court notes that under CERCLA's statutory scheme, a PRP's contribution action seeks to recover costs referred to in §107 from PRPs whose liability is defined by §107, but is governed by the equitable apportionment principles established in §113(f). The court holds that a close reading of §113(g) makes it clear that not all contribution claims have the same statute of limitations. Section 113(f)'s language expressly covers PRPs against whom the government has brought a civil action under §106 or §107 and who incur cleanup costs, thus triggering §113(g)(3)'s three-year limitations period. Section 113(f)'s language also covers PRPs who incur cleanup costs in some other way, but such PRPs will not trigger §113(g)(3)'s three-year limitations period. The court holds that contrary to the district court's ruling, this does not create a gap in the statute of limitations, because §113(g)(2) covers PRPs in this situation. Section 113(g)(2) provides that an initial action for the recovery of the costs referred to in §107 must be commenced within six years after initiation of physical on-site construction of the remedial action. As the court has already noted, a §113(f) action for contribution is an action for recovery of the costs referred to in §107. In this case, because no previous action under §106 or §107 has been filed with respect to the site, plaintiffs' §113(f) contribution action is the initial action for recovery of the costs referred to in §107.

The court rejects defendant PRPs' argument that §113(g)(2)'s limitations period covers only the traditional cost recovery action under §107, which, as the court has already held, is not available to plaintiffs. By its own terms, §113(g)(2) covers the "initial action" for the recovery of "costs referred to" in §107. Nothing in that language excludes a contribution action, which also seeks to recover an equitable portion of "costs referred to" in §107, provided that the particular contribution action is the "initial action" to recover such costs. The court also rejects defendants' argument that §113(g)(3)'s language makes clear that Congress expressly chose a three-year limitations period for all contribution claims. In effect, there are two different types of contribution actions under CERCLA, each governed by the same equitable rules of §113(f) and each seeking to equitably apportion costs referred to in §107, but each governed by different statutes of limitations. This construction is internally consistent in its application of the language of the statute, and follows court precedents and the increasing body of law from other circuits. This construction also gives effect to both §107 and §113.

Counsel for Plaintiffs
John H. Tucker
Rhodes, Hieronymus, Jones, Tucker & Gable
Oneok Plaza
100 W. 5th St., Ste. 400, Tulsa OK 74121
(918) 582-1173

Counsel for Defendants
William C. Anderson
Doerner, Saunders, Daniel & Anderson
320 S. Boston Ave., Ste. 500, Tulsa OK 74103
(918) 582-1211