Aviall Services v. Cooper Industries

Page 134

263 F.3d 134 (5th Cir. 2001)

AVIALL SERVICES INC., Plaintiff - Counter Defendant - Appellant, v. COOPER INDUSTRIES INC., Defendant - Counter Claimant - Appellee.

No. 00-10197

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

August 14, 2001

Appeal from the United States District Court For the Northern District of Texas

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Aviall Services, Inc. ("Aviall") appeals the summary judgment dismissal of its contribution claim based on the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9613(f)(1). The district court ruled that Aviall could not seek contribution from Cooper Industries, Inc. ("Cooper") unless Aviall had incurred or at least faced liability under a CERCLA administrative abatement or cost recovery action. We affirm, holding that the text of CERCLA requires this result.

I

Cooper ran an aircraft engine maintenance business at several of its industrial facilities. The rebuilding of aircraft engines required the use of petroleum and other hazardous substances, some of which seeped into the ground and groundwater through underground storage tanks and spills. Among the industrial facilities contaminated were Love Field, Carter Field and Forest Park (collectively, the "Facilities"). In 1981, Cooper sold its aircraft engine maintenance business, along with the Facilities, to Aviall. Several years later, Aviall began discovering some of the contamination that had occurred at the Facilities. Aviall admits, though, that the pollution of the Facilities continued under its stewardship as well.

Aviall notified the Texas Natural Resource Conservation Commission ("TNRCC") of the contamination at its Facilities. In turn, the TNRCC sent several letters to Aviall informing the company that it was in violation of Texas state environmental laws. Notably, the Environmental Protection Agency ("EPA") never contacted Aviall or designated the Facilities as contaminated sites. In 1984, Aviall began a decade-long environmental cleanup, spending millions of dollars. In early 1995, Aviall for the first time contacted Cooper seeking reimbursement. Aviall eventually sold the Facilities to another private party, but it contractually retained a continuing responsibility for the environmental cleanup.

In 1997, Aviall filed this lawsuit against Cooper based in part on CERCLA's § 107(a) "cost recovery" provision, which allows innocent persons to recover environmental response costs from liable parties. Aviall later amended its complaint dropping the § 107(a) cost recovery claim, while adding contribution claims under § 113(f)(1) of CERCLA as well as under the Texas Solid Waste Disposal Act, Tex. Health & Safety Code Ann. § 361.344(a) (West 1992 & Supp. 2001), and the Texas Water Code, Tex. Water Code Ann. § 26.3513(j) (West 2000). The district court granted Cooper's motion for summary judgment, dismissing the § 113(f)(1) CERCLA contribution claim and then declining to exercise supplemental jurisdiction over the state law contribution claims. Relying on the plain language of the statute, the court held that Aviall could not assert a § 113(f)(1) contribution claim unless it was subject to a prior or pending CERCLA action involving either § 106 (federal administrative abatement action) or § 107(a) (cost recovery action by the government or a private party).¹

On appeal, Aviall admits that neither the EPA nor any private party has filed a CERCLA claim against it. Notwithstanding this lack of federal action against it, Aviall claims that it can pursue CERCLA-based contribution because it voluntarily cleaned up the contamination, or at least it did so at the behest of a state environmental agency. Before discussing the merits of these arguments, we briefly review the structure and history of CERCLA.

II

Congress enacted CERCLA to facilitate the cleanup of hazardous waste sites, and to shift the costs of environmental response from the taxpayers to the parties who benefitted from the use or disposal of the hazardous substances. See OHM Remediation Serv. v. Evans Cooperage Co., Inc., 116 F.3d 1574, 1578 (5th Cir. 1997). The statute allows parties who incur environmental cleanup costs to recover from persons commonly referred to as "potentially responsible parties" ("PRPs"). See 42 U.S.C. § 9607(a). Subject to certain statutory exceptions, PRPs are broadly defined to include: (1) current owners and operators of vessels or facilities that accepted hazardous substances; (2) past owners or operators of facilities where hazardous substances were disposed; (3) persons who by contract or agreement arranged for the disposal or transport of hazardous substances; and (4) persons who accept or accepted hazardous substances for transport to disposal or treatment facilities. See 42 U.S.C. § 9607(a).

CERCLA provides two ways for parties to recover environmental response costs. The § 107(a) cost recovery provision permits the government or an "innocent" private party to recoup cleanup costs from PRPs. See 42 U.S.C. § 9607(a)(4) (stating that PRPs "shall be liable for--(A) all costs of removal or remedial action incurred by the United States Government or a State . . . [and] (B) any other necessary costs of response incurred by any other person. . ."). PRPs are held jointly and severally liable under this cost recovery provision. The other method of recovering environmental response costs involves § 113(f)(1), the contribution provision. See 42 U.S.C. § 9613(f)(1). It allows a PRP to seek contribution from other PRPs if it assumed a disproportionate share of the cleanup costs. Under § 113(f)(1), courts have the discretion to allocate the response costs equitably among the various PRPs. CERCLA additionally includes a provision (§ 106) for the federal government to seek an administrative abatement order (enforceable in court) against PRPs. See 42 U.S.C. § 9606.

Courts have elaborated on the distinction between a contribution action under § 113(f)(1) and a cost recovery action under § 107(a). A contribution claim involves actions between PRPs, while a cost recovery suit is initiated by a non-responsible party against a PRP. See, e.g., OHM, 116 F.3d at 1583. Thus, a PRP cannot file a § 107(a) suit against another PRP; it must pursue a contribution action instead. See id. In the present case, Aviall and Cooper concede that they are both PRPs because they both contributed to the contamination of the Facilities.² The issue presented in this case is whether a PRP seeking a § 113(f)(1) contribution suit must have an ongoing or adjudged § 106 or § 107(a) action against it.

III

After examining the text and structure of CERCLA, we hold that a party can seek a § 113(f)(1) contribution claim only if there is a prior or pending federal § 106 or § 107(a) action against it.³ While no directly binding case law exists, we believe that the majority of courts that have addressed this issue agree with our textual analysis. Moreover, the legislative history, as a secondary source, reinforces our interpretation. We review the district court's grant of summary judgment de novo, construing all facts and inferences in the light most favorable to the nonmoving party. See Uniroyal Chem. Co. v. Deltech Corp., 160 F.3d 238, 241 (5th Cir. 1998).

A

Any analysis of a statutory provision must be tethered and true to the text. See United States v. Alvarez-Sanchez, 511 U.S. 350, 356, 114 S.Ct. 1599, 1603, 128 L.Ed.2d. 319 (1994) ("When interpreting a statute, we look first and foremost to its text"). The contribution section of CERCLA states: "Any person may seek contribution from any other person who is liable or potentially liable under [§ 107(a)], during or following any civil action under [§ 106] or under [§ 107(a)]." 42 U.S.C. § 9613(f) (emphasis added).

A plain language reading of the statute requires a PRP seeking contribution from other PRPs to have filed a § 113(f)(1) claim "during or following" a federal CERCLA action against it. Aviall concedes that it did not file its § 113(f)(1) contribution claim "during or following" a § 106 or § 107(a) action against it, but it argues that neither action is necessary as long as it voluntarily cleaned up the Facilities. It alternatively contends that it can seek contribution because the TNRCC compelled it to clean up the Facilities--even though CERCLA does not expressly specify that contributions are allowed in the context of state agency enforcement orders.

We begin our analysis with the word "contribution" itself. The word "contribution" is defined as the "[r]ight of one who has discharged a common liability to recover of another also liable . . . . Under principle of 'contribution,' a tort-feasor against whom a judgment is rendered is entitled to recover proportional shares of judgment from other joint tort-feasors . . . ." Black's Law Dictionary 329 (6th ed. 1990). As further explained in Sections C and D, we believe that the commonly accepted definition of contribution requires a tortfeasor to first face judgment before it can seek contribution from other parties.

Notwithstanding the definition of "contribution," Aviall claims that the statutory language of CERCLA supports its view. It first notes that under § 113(f)(1), "[a]ny person may seek contribution . . . during or following any civil action under [§ 106] or under [§ 107(a)]." 42 U.S.C. § 9613(f) (emphasis added). The key question is whether the use of the word "may" signifies an exclusive means for contribution (as in a party "may only" or "must" seek contribution during or following a CERCLA action), or a non-exclusive means for contribution (as in a party "may choose one of several ways" to seek contribution, and one way is during or following a CERCLA action). Aviall adopts the latter view, arguing that § 113(f)(1) does not affirmatively exclude contribution suits initiated under other circumstances. If the former view was...