1 REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-30714.

OHM REMEDIATION SERVICES, Plaintiff-Counter Defendant-Cross

Defendant-Appellant,

v.

EVANS COOPERAGE CO., INC., Defendant-Third Party PlaintiffCounter Claimant-Cross Defendant Counter Defendant-Appellee,

Louisiana Oil Recycle/Reuse, Inc.; Coastal Leasing Services,

Inc.; Henrietta McCrary; Francis' Drilling Fluid, Inc.; Power

Too l Repair Service, Inc.; American Inspection and Testing

Laboratories, Inc.; American Manufacturing Company, Inc.; Atlas

Processing Co.; Aviation Laboratories Inc.; Boassa International

Inc.; Cabot Corporation; Caleb Brett USA; Castrol Inc.;

Catalyst Recovery of Louisiana Inc.; Cherry Picker Parts & Service

Company, Inc.; Cheyenne Services, Inc.; Conoco Inc.; Daniel Oil

Tools Co.; De Nova Oil and Gas, Drilling Measurements Inc.; Dravo

Lime Company; Dresser Industries Inc.; Dwaca Enterprises; Ebasco

Services, Inc.; Fruehauf Trailer Corporation; Howell Industries;

Iew Syst ems Inc.; Independent Tank Cleaning Services Inc.;

Ingersoll Rand Co.; Koch Service Inc.; KRC Southern Inc.; L & B

Transportation; Louisiana Bulk Carriers Inc.; Matlack Inc.;

Quality Diesel Service Inc.; Richard Oil Co.; Rubicon

Incorporated; Sabine Manufacturing; Saybolt Inc.; Schuylkill

Metals; Southern Natural Gas Company; Stupp Brothers Bridge and

Iron Company; Tube Alloy Corp.; Valley Electric Membership

Corporation; Verret Shipyard Inc.; Westlake Polymers Corp., Third

Party Defendants-Cross Defendants-Appellees,

Atlas Wireline; Dresser Pump; Geismar Marine Inc.; Greenville

Johnny of Louisiana Inc.; Intercoastal Truck; LA Interstate

Liquids Inc.; N L McCullough Industries; Novi Chemical; Southern

Pipe; Southern Scrap Metals Inc., Appellees,

Acadian Ambulance Service Inc., Third Party Defendant-Cross

Defendant-Third Party Plaintiff-Cross Cla imant-Counter ClaimantCounter Defendant-Appellee,

T T Barge Cleaning Inc., Third Party Defendant-Cross DefendantThird Party Plaintiff-Cross Claimant-Counter Claimant-Appellee,2

Florida Parishes Voc-Tech School, Third Party Defendant-Cross

Claimant-Counter Claimant-Cross Defendant-Appellee,

CCL Custom Manufacturing Inc.; Cedar Chemical Corp.; BP

Exploration and Oil Inc.; Constar Plastics Inc.; DSI Transports

Inc.; International Paper Company; Louisiana Industries;

Occidental Chemical Corporation; Oxy USA Inc.; Port Allen River

Plant Inc., Third Party Defendants-Counter Claimants-Cross

Defendants-Appellees,

Coastal Fluid Technologies Inc.; Deep South Chemical; MacKenzie

Corporation, Third Party Defendants-Appellees,

Koch Service Inc., Third Party Defendant-Cross Claimant-Appellee,

July 22, 1997.

Appeals from the United States District Court for the Middle

District of Louisiana.

Before EMILIO M. GARZA, PARKER and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

OHM Remediation Services appeals the district court's

dismissal of its action to recover response costs under the

Comprehensive Environmental Response, Compensation and Liability

Act ("CERCLA"), 42 U.S.C. §§ 9607 and 9613. In a case posing two

issues of first impression in the federal courts of appeal

regarding the response cost recovery and contribution provisions of

CERCLA, we reverse and remand.

I

The relevant facts here are not in dispute. Louisiana Oil

Recycle and Reuse ("Louisiana Oil") operated a fa cility in Baton

Rouge that recycled nonhazardous waste. In a critical two-year

period, Evans Cooperage sent at least s eventy-six shipments of

waste materials, the total volume of which exceeded 450,0003

gallons, to Louisiana Oil for treatment or disposal. At some point

after these shipments, a hazardous substa nce began escaping from

the Louisia na Oil facility, flooding the grounds of adjacent

property and spilling into the Baton Rouge storm sewer system. The

Louisiana Department of Environmental Quality ("DEQ") ordered

Louisiana Oil to take immediate action. Louisiana Oil contacted

OHM the same day, and over the next three months OHM contained the

release and recovered the spilled materials. According to the DEQ,

OHM's work successfully abated the emergency situation at the

facility and left the site in a secure condition. At no point was

OHM's relationship with Louisiana Oil anything other than

contractual; OHM has never had any ownership or leasehold interest

in the Louisiana Oil facility.

The DEQ shut Louisiana Oil down after issuing an order finding

that the materials spilled were "hazardous waste, namely hazardous

washwater which failed the characteristic test for corrosivity and

for chromium and lead." After it was shut down, Louisiana Oil went

out of business, and its insurance did not cover OHM's $3 million

bill for response costs. As Louisiana Oil was unable to pay for

its services, OHM sued Evans for recovery of clean-up costs under

CERCLA section 107(a), 42 U.S.C. § 9607(a). Evans named several

potentially responsible parties ("PRPs") as third-party defendants,

and two of th ese companies named numerous other parties as

third-party defendants. Based on documents obtained from Louisiana

Oil, the to t al number of third-party co-defendants eventually4

reached seventy, including OHM, which had delivered ten drums of

waste to Louisiana Oil in 1991. Although OHM did not admit that

the material it sent to Louisiana Oil was hazardous, nor that the

ten drums made OHM a potentially responsible party under the

statute, the company brought a contribution action against the

third-party defendants under CERCLA section 113(f), 42 U.S.C. §

9613(f).

Evans filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6),

part of which the district court converted to a motion for summary

judgment and grant ed. The court dismissed OHM's section 107(a)

claims on summary j udgment, holding that the language of the

statute implies that one must have a "protectable interest" in the

clean-up site to recover response costs. Because OHM had no such

interest in the Louisiana Oil site, the district court held that

OHM could not bring an action under section 107(a). The district

court also granted the Evans's motion to dismiss OHM's section

113(f) claims, holding: (1) that OHM could not maintain a section

113(f) contribution action because it had not shown that the

defen dants were "liable or potentially liable" in its original

section 107(a) claim, and (2) that, in any event, OHM could not

bring a contribution claim unless the company admitted that it was

jointly and severally liable as a potentially res ponsible party.

OHM appealed.

II

Congress enacted CERCLA in 1980, and amended it in 1986 by5

the Superfund Amendments and Reauthorization Act ("SARA").

CERCLA's broad, remedial purpose is to facilitate the prompt

cleanup of hazardous waste sites and to shift the cost of

environmental response from the taxpayers to the parties who

benefitted from the wastes that caused the harm. M atter of Bell

Petroleum Services, Inc., 3 F.3d 889, 894 (5th Cir.1993) (citing

United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1500 (6th

Cir.1989), cert. denied, 494 U.S. 1057, 110 S.Ct. 1527, 108 L.Ed.2d

767 (1990)). CERCLA section 107(a) provides for the recovery of

response costs from all persons responsible for the release of a

hazardous substance. Response actions include both "remedial" and

"removal" actions. B ell Petroleum, 3 F.3d at 894. Removal actions

generally are immediate or interim responses, and remedial actions

generally are permanent responses. Id. These response actions may

be undertaken by the United States, any state, an Indian tribe, or

"any other person" under section 107(a)(4)(A)-(B).

CERCLA makes four classes of "covered persons" lia ble for

response costs: (1) present owners and operators of facilities

that accepted hazardous substances, (2) past owners and operators

of such facilities, (3) generators of hazardous substances, and (4)

certain transporters of hazardous substances. CERCLA § 107(a).

The Act's broad reach extends liability all the way down the causal

chain, from those who generate waste through those who dispose of

it. S ee, e.g., B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 11986

(2d Cir.1992). Because the Act imposes strict liability, Bell

Petroleum, 3 F.3d at 8 97, plaintiffs generally need not prove

causation, only that the defendant is a "covered person." United

States v. Alcan Aluminum Corp., 990 F.2d 711, 721 (2d Cir.1993).

Where the harm is indivisible, liability under the Act is joint and

several. Bell Petroleum, 3 F.3d at 903. Responsible parties are

liable for a broad range of expenses, including all costs of

removal of substances consistent with the National Contingency Plan

("NCP"), damages for injury to natural resources, the cost of

health assessments, and all other necessary response costs. CERCLA

§ 107(a)(4).

The NCP, a set of guidelines drafted by the Environmental

Protection Agency, governs site cleanup and response actions under

CERCLA. 40 C.F.R. Part 300. The NCP sets performance standards,

identifies methods for investigating the environmental impact of a

release or threat ened release, and establishes criteria for

determining the appropriate extent of response activities. B ell

Petroleum, 3 F.3d at 894.

In addition to the cost recovery provisions of section 107(a),

CERCLA section 113(f) provides for contribution f rom "any other

person who is liable or potentially liable under section [107(a)

]." Section 113(f) allows courts to "allocate response costs among

liable parties using suc h factors as the court determines are

appropriate." CERCLA § 113(f)(1).7 III

A

First, we address whethe r recovery of response costs under

section 107(a ) is restricted to persons with a "protectable

interest" in the cleanup site. The district court dismissed OHM's

section 107 claim on a motion for summary judgment, holding that,

in order to satisfy the "statutory causation" requirement o f the

statute, the claimants must have a "p rotectable interest" in the

property. We review a district court's grant of summary judgment

de novo. Doddy v. Oxy USA, Inc., 101 F.3d 448, 460 (5th Cir.1996).

In doing so, we employ the same criteria as the district court and

construe all facts and inferences in the light most favorable to

the nonmoving party. I d. Summary judgment is appropriate where the

moving party establishes that "there is no genuine issue of

material fact and that [it] is entitled to a judgment as a matter

of law." Fed.R.Civ.P. 56(c). This appeal involves no question of

fact, only a question of law.

The relevant part of section 107(a), including the causation

requirement, provides that any "covered person" with respect to a

facility or site:

from which there is a release, or a threatened release which

causes the incurrence of response costs, of a hazardous

substance, shall be liable for—

(A) all costs of removal or remedial action incurred by

the United States Government or a State or an Indian

tribe not inconsistent with the national contingency

plan;8 (B) any other necessary costs of response incurred by any

other person consistent with the national contingency

plan; ...

CERCLA § 107(a)(4) (emphasis added). The district court determined

that the word "causes" implies a requirement of connection between

the plaintiff and the property satisfied only by an interest in the

site. It held that the spill only "caused" response costs for

Louisiana Oil, but did not cause the actions or costs of Louisiana

O il's contractors. According to this interpretation of section

107(a), OHM would presumably have a cause of action sounding in

contract against Louisiana Oil, who in turn could recover from

potentially liable parties ("PRPs") under CERCLA. Such a reading

of CERCLA would effectively bar independent contractors such as OHM

from recovering response costs under section 107(a).

This protectable interest requirement is no where in the

statute, and we decline to insert it. The text of section 107 does

not limit the class of plaintiffs who may recover response costs;

the only descriptions of who may recover are "the United States

Government or a State or an Indian tribe" in section 107(a)(4)(A)

and "any other person" in section 107(a)(4)(B). Far from a

limitation, t he combination of these two clauses in section 107

evidences congressional intent that anyone is eligible to recover

resp onse costs. In addition, we have been unable to find any

legislative hist ory in CERCLA or the SARA amendments suggesting

that Congress ever intended such a "protectable interest" inquiry.9

To read the word "caus es" to include a requirement of a

protectable interest conf ounds even a commonsense reading of

section 107. The word "causes" in section 107(a)(4) applies to

costs incurred by the governm ent under 107(a)(4)(A) and by

individuals under 107(a)(4 ) (B), so under the district court's

reading, the causation requirement would constrain the government

as well. Congress surely did not require the government to have a

protectable interest in any Superfund site for which it incurs

response costs, and it makes little sense to infer that requirement

for private parties. We have never required a showing of such an

interest as an element of section 107 recovery actions. In B ell

Petroleum, for example, we held that the Environmental Protection

Agency could recover the costs it incurred removing chromium from

the Trinity Aquifer near Odessa, Texas. 3 F.3d at 907-09. Neither

the EPA nor the United States has a "protectable interest" in the

aquifer, and we did not require one. To the contrary, we have held

that "a plaintiff who has incurred response costs meets the

liability requirement as a matter of law if it is shown that any

release violates, or any threatened release is likely to violate,

any applicable state or federal standard, including the most

stringent." A moco Oil Co. v. Borden, Inc., 889 F.2d 664, 671 (5th

Cir.1989) (emphasis added).

Evans argues that the spill did not "cause" OHM's response,

but that a contract with Louisiana Oil caused OHM's response costs.10

This is essentially a request that the court graft a rule of

privity onto CERCLA, allowing only the pr operty owner to recover

under the statute. However, the statute does not adopt such a

cramped view of causation. In the case at hand, if no release had

occurred, OHM would not have had to incur response costs cleaning

up the site. In that respect, the spill "caused" OHM's response

costs. The statute does not require OHM to show that it has any

more substantial relationship to the property than it does in this

case.

In short, section 107(a) does not impose a "protectable

interest" limitation on who may recover response costs, and such a

limitation is not fairly implied by the text of the statute, by the

legislative history, or by reading the statute as a whole. In

light of the clear intention of Congress to provide a private right

of action to "any other person" for recovery of response costs, we

decline to exclude by implication those without a protectable

interest in the cleanup site. No other court of appeals has

curtailed CERCLA recove ry in this way, and we decline to do so

today.

B

Next, we address whether section 113(f) contribution actions

may be brought by a party that is not liable or potentially liable.

After dismissing OHM's section 107(a) claim against Evans , the

distr ict court dismissed OHM's section 113(f) contribution claim

against the third-par ty defendants on two independent grounds.11

First, the court noted that section 113(f) allows actions against

t hird parties only after an initial determination of liability

under section 107(a). Section 113(f)(1) provides that "[a]ny

person may seek contribution from any other person who is liable or

potentially liable under section [107(a) ] of this title, during or

following any civil action under section 9606 of this title or

under section [107(a) ] of this title." A section 113(f)

c ontribution action is derivative of an action under section

107(a), if only a pending one. Accordingly, the district court's

dismissal of OHM's section 107(a) action served to void the

statutory prerequisite to suit under section 113(f). However, in

the prior section of this opinion, we reversed the district court's

dismissal and remanded OHM's section 107(a) claim to the district

court for determination. OHM still has a viable section 107(a)

claim pending in the district court, and the refore the district

court's first rationale for dismissing the company's section 113(f)

claims no longer holds.

The district court hel d, in the alternative, that a section

113(f) claim for contribution may only be brought by a party that

is liable or potentially liab le under the statute. OHM does not

concede that the ten drums of waste it deposited with Louisiana Oil

in 1991 were hazardous, nor does it admit that it is potentially

responsible for cleanup costs, and the district court has not made

any findings of liability. Instead of admitting that it is a PRP,

OHM argues that section 113(f) actions may be brought by non-PRP12

claimants.

1

Section 113(f)(1) reads in relevant part:

Any person may seek contribution from any other person who is

lia ble or potentially liable under section 9607(a) of this

title, during or following any civil action under section 9606

of this title or under section [107(a) ] of this title.... In

resolving contribution claims, the court may allocate response

costs among liable parties using such equitable factors as the

court determines are appropriate.

CERCLA § 113(f)(1) (emphasis added). The statute allows that

"[a]ny person" may seek contribution, but this must be read in

conjunction with the statute's description of who is liable: "any

other person." "Other" in this section refers back to the person

seeking contribution, and changes our understanding of who might

fill that role.

The ambiguity in section 113(f) rides on the proper

interpretation of the word "other." If, as OHM suggests, we read

"other" to modify only the single word following it, "person," the

word does nothing more than prevent the plaintiff from suing

himself for contribution. Such a reading would effectively mean,

"Any person may seek contribution from any other person in the

world, so long as the person from whomcontribution is sought is

liable or potent ially liable...." Under such a reading, section

113(f) would essentially parrot section 107(a), allowing anyone to

recover response costs from a PRP. However, if one reads the word

"other" to modify "person who is liable or potentially liable," as13

the district court did in this case, the phrase implies that the

person seeking contribution must be liable also. Such a reading

construes the statute to say, "Any person who is liable or

potentially liable may seek contribution from any other person who

is liable or potentially liable...."

T he rest of section 113 indicates that contribution actions

are app ropriate only to settle disputes among PRPs, allowing the

court to "allocate response costs among liable parties " using

equitable factors. Indeed, although we have never held as much, we

have suggested in dictum that section 113(f) actions may only be

brought among potentially responsible parties: "Under CERCLA, a

defendant has contribution rights only against other defendants who

have not resolved their liability in an administrative or

judicially approved settlement." B ell Petroleum, 3 F.3d at 902 n.

14; s ee also Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th

Cir.1989 ) ("When one liable party sues another to recover its

equitable share of the response costs, the action is one for

contribution....").

The legislative history of CERCLA reinforces t he conclusion

that only PRPs may bring actions for contribution. Section 107 was

the sole statutory basis for recovery of response costs in the

original CERCLA statute, which contained no provisi on for

apportioning costs among PRPs. Cases under the original statute

threatened minor polluters with joint and several liability, which14

prompted courts to find an implicit, federal common law right to

contribution. See County Line Inv. Co. v. Tinney, 933 F.2d 1508,

1515 (10th Cir.1991); O 'Nei l v. Picillo, 883 F.2d 176, 179 (1st

Cir.1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1115, 107 L.Ed.2d

1022 (1990); M ardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1 454,

1457 n. 3 (9th Cir.1986). The SARA amendments, including section

113, codified the federal common law right of contribution. S ee

United Technologies Corp. v. BFI, Inc., 33 F.3d 96, 98 (1st

Cir.1994), cert. denied,

--- U.S. ----, 115 S.Ct. 1176, 130 L.Ed.2d

1128 (1995). A principal objective of the new contribution

provision was to "clarif[y] and confirm[ ] the right of a person

held jointly and severally liable under CERCLA to seek contribution

from other potentially liable parties, when the person believes

that it has a ssumed a share of the cleanup or cost that may be

greater than its equitable share under the circumstances." S.Rep.

No. 11, 99th Cong., 1st Sess. 44 (1985). The legislative history

thus supports the ide a that section 113(f) was not meant to be

duplicative of section 107(a), but meant instead to allow

potentially responsible parties a cause of action to mitigate the

harsh effects of joint and several liability.

Few cases have addressed the specific question of whether a

non-PRP has a cause of acti on under section 113(f). In the only

case we have found directly on point, Companies for Fair Allocation

v. Axil Corp., a district court in Connecticut held that the plainW e expre ss no opinion on the separate question addressed by

the United Technologies court, whether a PRP may seek to hold other

parties jointly and severally liable under section 107(a) for

response costs.

15 language of the statute said that "[a]ny person" could sue for

contribution, so the claimant need not be a PRP: "Although the

statute provides that contribution may only be sought from parties

who are liable or potentially liable, the statute imposes no such

liability requirement on parties seeking contribution." A xil, 853

F.Supp. 575, 581 (D.Conn.1994).

The First Circu it has reached the opposite result, on

different procedural footing, in U nited Technologies v. BFI, 33

F.3d 96, 100-02 (1st Cir.1994). In interpreting section 113, the

United Technologies court employed a canon of statutory

construction, that legal terms used in fram ing a statute are

or dinarily presumed to convey their customary legal meaning, to

find that section 113(f) is meant to apportion costs among PRPs.

Id. at 99. 1 We agree that "contribution," as that word is used in

CERCLA, is best understood in its customary sense as a term of art

referring to actions brought among potentially responsible parties.

Black's Law Dictionary defines "contribution" as:

Right of one who has discharged a common liability to recover

of another also liable, the aliquot portion which he ought to

pay or bear. Under principle of "contribution," a tort-feasor

against whom a judgement is rendered is entitled to recover

proportional shares of judgment from other joint tort-feasors

whose negligence contributed to the injury and who were also

liable to the plaintiff.16

Black's Law Dictionary 328 (6th ed.1990). The United Technologies

court concluded that the struct ure of the statute, including

separate limitations periods for section 107 and section 113,

indicate that "contribution" in section 113 "refers to an action by

a responsible party to recover from another responsible party that

portion of its costs that are in excess of its p ro rata share of

the aggregate response costs...." U nited Technologies, 33 F.3d at

103. We agree, and we hold that section 113(f) contribution

actions may only be brought by persons who are liable or

potentially liable under CERCLA.

2

No court has determined that OHM is actually liable under the

statute, and the company disputes its liability, presumably because

of the de minimis nature of its contribution and its remoteness in

time from the actual release. Further, OHM denies that it is even

potentially liable, claiming that it is not a PRP. Therefore OHM's

own pleadings threaten to extinguish its section 113(f)

contribution claims.

The terms "l iable or potentially liable" and "potentially

responsible party" (or PRP), are not define d in the statute.

However, after examining the text and the structure of CERCLA, we

think that the most sensible reading of the statute demands that,

even before any determination of actual liability, a party may be

"potentially liable" simply by being sued under the statute. Cf.W e express no opinion as to whether a party may be considered

a PRP before being sued under CERCLA.

W e note that there may be significant overlap between OHM's

con tribution claims and its 107(a) claims for response costs

17 Amcast Industr. Corp. v. Detrex Corp., 2 F.3d 746, 748-49 (7th

C ir.1993) (once sued, a party may bring a counterclaim for

contribution without admitting liability under CERCLA). The courts

may eventually clear a CERCLA defendant or third-party defendant

from liability; but until it does, such a defendant is at least

potentially

liable.

This interpretation of potential liability under section 113

allows parties to bring contribution actions at least as soon as

they are sued under CERCLA. 2 By allowing parties to bring

contribution claims before any finding or stipulation of liability,

CERCLA makes possible the joinder of all potent ially responsible

parties in a single case, an early identification of potentially

responsible parties for purposes of settlement, and as a single

judicial apportionment of cleanup costs among responsible parties.

Such a reading also all ows parties to bring contribution actions

after settlements, stipulations, or judicial determination of

liability, within the three-year limitations period. Therefore we

hold that, regardless of whether t he company stipulates any

responsibility for the spill, and before any court determines

ultimate liability, OHM is nonetheless a potentially liable party

by virtue of its status as a defendant in the suit. 3against the same defendants, but CERCLA imposes no bar on multiple

grounds for recovery. We also note that if the district court

finds that OHM is not liable for response costs, the company

obviously will cease to be a liable or potentially liable party.

18 We hold that the language of CERCLA permits only PRPs to bring

contribution actions under section 113(f), but that OHM is a PRP

under the statute because it is a defendant in the suit. Therefore

we reverse e ach of the district court's alternative grounds for

dismissal of OHM's section 113(f) contribution claims as a matter

of law and remand for further proceedings.

IV

Evans presents three independent grounds for summary judgment

not addressed by the district court by which we may dismiss OHM's

revived section 107(a) claim. First, Evans asserts that, because

OHM is actually liable under the statute as a PRP, the company may

not bring an action under section 107(a). Second, Evans disputes

whether OHM may recover response costs, because it asserts that the

Louisiana Oil project was not a "CERCLA quality" cleanup. Third,

Evans charges that the work was not consiste nt with the NCP. We

need not address those is sues here. All involve difficult

questions of fact regarding the extent of cleanup and the nature of

OHM's involvement with the site. These questions should be decided

by the district court on a record more complete than the one

available to us here.

Therefore we REVERSE the district court's dismissal of OHM's

section 107(a) claim, as well as its dismissal of OHM's section19

113(f) contribution claims and REMAND both claims to the district

court.