PUBLISH

UNITED STATES COURT OF APPEALS

Filed 12/18/96

TENTH CIRCUIT

_____________________

BANCAMERICA COMMERCIAL

CORPORATION, a Pennsylvania corporation;

ASARCO, INC.,

 Plaintiffs-Appellees-Cross-Appellants,

v.

MOSHER STEEL OF KANSAS, INC., a

Kansas corporation; TRINITY INDUSTRIES,

INC., a Texas corporation,

 Defendants-Appellants-Cross-Appellees.

Nos. 95-3385 & 95-3396

_____________________

Before PORFILIO, TACHA and BRORBY, Circuit Judges.

_____________________

ORDER

_____________________

On November 13, 1996, we issued an opinion in these cases affirming the

judgment of the district court, with the exception of reversing and remanding for

the granting of prejudgment interest to Plaintiffs in accordance with 42 U.S.C.

§ 9607(a) (1994). Nos. 95-3385, 95-3396, 1996 WL 657870 (10th Cir. Nov. 13,

1996).
*

 The Advisory Committee Notes to Fed. R. App. P. 37 make it clear that

recall and reformation of the mandate is appropriate to answer the question of

postjudgment interest:

Since the rule directs that the matter of interest be disposed of by the

mandate, in cases where interest is simply overlooked, a party who

conceives himself entitled to interest from a date other than the date

of entry of judgment in accordance with the mandate should be

entitled to seek recall of the mandate for determination of the

question.

-2-

Our opinion, contrary to the prescription of Fed. R. App. P. 37, contained

no instructions to the district court concerning the award of postjudgment interest. 

Consequently, Plaintiffs Bancamerica Commercial Corp. and ASARCO, Inc.

moved that we reform the mandate to indicate interest should be awarded from the

date of the district court's original judgment. We agree that interest should accrue

on the entire judgment, including the forthcoming award of prejudgment interest,

from August 2, 1995, the date of the district court's original judgment, and amend

our mandate accordingly.

Postjudgment interest from the entry of the district court's judgment is

mandatory. 28 U.S.C. § 1961(a) (1994). Rule 37 provides further guidance: "If

a judgment is modified or reversed with a direction that a judgment for money be

entered in the district court, the mandate shall contain instructions with respect to

allowance of interest." Failing to previously supply such instructions, we now

repair our error.*
-3-

In determining whether postjudgment interest should accrue from the date

of the district court's original judgment or the date of a later judgment, we

examine "the extent to which the case was reversed." Northern Natural Gas Co.

v. Hegler, 818 F.2d 730, 737 (10th Cir. 1987), cert. dismissed, 486 U.S. 1063 &

487 U.S. 1265 (1988). Where the original judgment lacks an evidentiary or legal

basis, postjudgment interest accrues from the date of the second trial court

judgment, see Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835-

36 (1990); "where the original judgment is basically sound but is modified on

remand, post-judgment interest accrues from the date of the first judgment." 

Cordero v. De Jesus-Mendez, 922 F.2d 11, 16 (1st Cir. 1990); see also, e.g., Dunn

v. Hovic, 13 F.3d 58 (3d Cir.) (awarding plaintiff postjudgment interest from date

of original judgment even though original judgment was $26.3 million and

ultimate judgment following appeal and remittiturs was $1.5 million), cert.

denied, 510 U.S. 1031 (1993); Coal Resources, Inc. v. Gulf & W. Indus., 954 F.2d

1263, 1273-75 (6th Cir. 1992) (awarding postjudgment interest from date of first

judgment).

Here, our reversal was limited to the district court's failure to grant

Plaintiffs prejudgment interest, whereas we affirmed all other aspects of the

district court's lengthy decision. As in Northern Natural Gas, "reversal for such

a purpose was not to a large 'extent' or an extent sufficient to change the
-4-

determinative judgment for . . . purposes [of the commencement of accrual of

postjudgment interest]." 818 F.2d at 738. Accordingly, postjudgment interest

should accrue from August 2, 1995, the date of the district court's original

judgment.

Moreover, the monetary award upon which postjudgment interest should

accrue is the entire award granted by the district court, including the forthcoming

award of prejudgment interest. That is the dollar figure to which Plaintiffs justly

became entitled on August 2, 1995, and failure to award Plaintiffs postjudgment

interest on the prejudgment interest would wrongly decrease the present value of

their monetary judgment. See Northern Natural Gas, 818 F.2d at 736-37

(approving award of postjudgment interest on accrued prejudgment interest).

Plaintiffs additionally filed a bill of costs pursuant to Fed. R. App. P. 39,

seeking recovery of $1,455.64. Recovery of many of the itemized costs for which

they seek to recover is not allowable under Rule 39. However, Plaintiffs' costs

incurred in producing necessary copies of their second and fourth briefs on appeal,

and their appendix, are allowable. The cost of eleven copies of their second brief

(75 pages) at 7¢ per page totals $57.75, and the cost of eleven copies of their

fourth brief (56 pages) at 7¢ per page totals $43.12. We also allow $388.00 for
** This sum consists of five times the cost of 820 copies at 7¢ per copy,

two oversize copies at 10¢ per copy, and 40 color copies at 50¢ per copy. 

(Although Plaintiffs list the actual cost of the color copies as 99¢ per copy,

pursuant to 10th Cir. R. 39.1 the taxable cost of reproducing necessary copies will

in no event exceed 50¢ per page, regardless of reproductive process.)

-5-

the cost of producing five copies of their appendix,

** reaching a grand total of

$488.87. Accordingly, we order costs of $488.87 to be taxed against Defendants

Trinity Industries, Inc. and Mosher Steel Co.

Entered for the Court:

WADE BRORBY
PUBLISH

UNITED STATES COURT OF APPEALS

Filed 11/13/96

TENTH CIRCUIT

_____________________

BANCAMERICA COMMERCIAL

CORPORATION, a Pennsylvania corporation;

ASARCO, INC.,

 Plaintiffs-Appellees-Cross-Appellants,

v.

MOSHER STEEL OF KANSAS, INC., a

Kansas corporation; TRINITY INDUSTRIES,

INC., a Texas corporation,

 Defendants-Appellants-Cross-Appellees.

Nos. 95-3385 & 95-3396

_____________________

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 90-CV-2325-GTV)

_____________________

Elizabeth Drill Nay (Thomas M. Martin with her on the briefs) of Lewis, Rice &

Fingersh, L.C., Kansas City, Missouri, for Bancamerica Commercial Corporation.

Earl K. Madsen of Bradley, Campbell, Carney & Madsen, Golden, Colorado, for

Asarco, Incorporated.

Frederick W. Addison, III (Elizabeth E. Mack with him on the briefs) of Locke

Purnell Rain Harrell, Dallas, Texas, for Defendants-Appellants-Cross-Appellees.

_____________________

Before PORFILIO, TACHA and BRORBY, Circuit Judges.

_____________________
-2-

BRORBY, Circuit Judge.

_____________________

After a series of settlements and party realignments, Plaintiffs Bancamerica

Commercial Corp. ("Bancamerica") and ASARCO, Inc. ("ASARCO") sued

Defendants Trinity Industries, Inc. and a subsidiary, Mosher Steel Co.,

(collectively "Trinity") under the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 for contribution to costs the Plaintiffs

incurred in an environmental cleanup of an industrial site. Additionally,

Bancamerica asserted a pendant state law breach of contract claim. The district

court held Trinity partially responsible for the site's environmental contamination,

and ordered Trinity to reimburse Bancamerica and ASARCO for the $555,293.55

in expenses attributable to cleanup of Trinity's pollution. It also held Trinity

liable to Bancamerica for $70,178.07 in unpaid taxes on Bancamerica's breach of

contract claim. We reverse and remand the district court's refusal to grant

Bancamerica and ASARCO prejudgment interest on the Comprehensive

Environmental Response, Compensation, and Liability Act award, and affirm the

remainder of the district court's opinion.

The district court's opinion, found at Bancamerica Commercial Corp. v.

Trinity Indus., 900 F. Supp. 1427 (D. Kan. 1995), contains a detailed description of
-3-

the facts; we provide only a synopsis. From 1899 to 1902 ASARCO operated

what was at that time one of the world's largest lead smelters at the site. From

1907 to 1984 nonparties to this suit operated a steel fabrication facility on the

site, using large amounts of lead-based paints and solvents. In 1984 Bancamerica

obtained the site through a deed in lieu of forfeiture. Bancamerica immediately

leased the site to Trinity, who occupied it until 1987. Trinity also used large

amounts of lead-based paints and solvents on the site. ASARCO, the nonparties,

and Trinity all contaminated the site to some extent. Id. at 1448-49.

Trinity and Bancamerica canceled the lease in 1987, at which time Trinity

discontinued operations at the site. In conjunction with this cancellation,

Bancamerica contracted to purchase certain cranes located on the site from Trinity

for $200,000.00. Trinity claims Bancamerica has not yet paid this sum, and

argues this alleged debt offsets the $70,178.07 it owes Bancamerica for unpaid

taxes.

Upon entry on and investigation of the site, Bancamerica discovered a

variety of contamination problems. Trinity left approximately 300 barrels on the

site, some of which were leaking and/or contained hazardous substances. Trinity

had buried approximately eighty of these barrels in a pit. Three underground
-4-

storage tanks were leaking gasoline into the soil. Most seriously, the site was

highly contaminated with lead. The lead originated from three sources: slag and

smelter ash (for which ASARCO was solely responsible), and lead-based paint

(for which the nonparties and Trinity were responsible). Id. at 1449.

In 1989, the Environmental Protection Agency notified Bancamerica,

ASARCO, and Trinity of their potential liability under the Comprehensive

Environmental Response, Compensation, and Liability Act. In 1990, the

Environmental Protection Agency and Bancamerica entered into an

Administrative Consent Order that required Bancamerica to engage in a cleanup

of the site. Thereafter, in 1991, the Environmental Protection Agency issued a

Unilateral Comprehensive Environmental Response, Compensation, and Liability

Act § 106 Order to ASARCO, requiring it to assist in the completion of the

cleanup. Bancamerica and ASARCO, without assistance from Trinity, completed

the cleanup. They then brought this suit seeking contribution from Trinity.

The parties raise seven issues on appeal. The first four, raised by Trinity,

are: (1) whether the Environmental Protection Agency orders required

Bancamerica and ASARCO to meet the public comment requirements of the

national contingency plan; (2) if the district court should have decided whether
-5-

the cleanup was a "remedial" or a "removal" action; (3) whether Bancamerica was

entitled to recover costs incurred in 1988 and 1989, prior to the Administrative

Consent Order; and (4) whether Trinity was entitled to an offset against

Bancamerica's claim for unpaid taxes. The issues raised by Bancamerica and

ASARCO are: (5) whether Bancamerica and ASARCO were entitled to prejudgment interest; (6) whether the district court erred in considering only toxicity

and volume in allocating responsibility (and liability) for cleanup of the lead

contamination; and (7) whether Trinity breached its lease with Bancamerica

through improper maintenance or operation of the underground storage tanks. We

reverse the district court's refusal to award Bancamerica and ASARCO prejudgment interest, and affirm the district court on all other issues. We address

these issues in the order presented to us.

I

Did the Environmental Protection Agency orders require Bancamerica and

ASARCO to comply with the public comment requirements of the national

contingency plan?
3

 "Response actions" refer to cleanup actions taken in response to a release

of hazardous substances into the environment. See 42 U.S.C. § 9601(23), (24),

(25) (1994).

4

 The national contingency plan is a set of regulations promulgated by the

Environmental Protection Agency that "establish[es] procedures and standards for

responding to releases of hazardous substances, pollutants and contaminants." 42

U.S.C. § 9605; see 40 C.F.R. Part 300 (1995).

-6-

In order for Bancamerica and ASARCO to obtain contribution from Trinity,

their response actions3

 must have been "consistent with the national contingency

plan." 42 U.S.C. § 9607(a)(4)(B) (1994).4

 Importantly, a regulation in the

national contingency plan provides that "[a]ny response action carried out in

compliance with the terms of an order issued by [the Environmental Protection

Agency] pursuant to section 106 of [the Comprehensive Environmental Response,

Compensation, and Liability Act] ... will be considered 'consistent with the

[national contingency plan].'" 40 C.F.R. § 300.700(c)(3)(ii) (1995). Both of the

orders under which Bancamerica and ASARCO acted were issued by the

Environmental Protection Agency pursuant to § 106, and the district court found

that Bancamerica and ASARCO complied with the terms of these orders. 

Bancamerica, 900 F. Supp. at 1451 n.2, 1452-53. Accordingly, the court held

their response actions were consistent with the national contingency plan. Id. at

1453.
5

 The national contingency plan requires private parties engaged in a

cleanup to provide the general public an opportunity to comment on the selection

of the response action. County Line Inv. Co. v. Tinney, 933 F.2d 1508, 1514

(10th Cir. 1991); see 40 C.F.R. §§ 300.415(n), 300.430(f)(3) (1995).

6

 In United States v. Colorado & E. R.R. Co., 50 F.3d 1530, 1538 (10th

Cir. 1995), we reviewed the district court's finding that response costs were

incurred consistent with the national contingency plan as a finding of fact entitled

to the clearly erroneous standard. Here, we instead engage in de novo review

because Trinity's argument raises questions of statutory interpretation, see United

States v. Diaz, 989 F.2d 391, 392 (10th Cir. 1993) (statutory construction issues

reviewed de novo), and contract interpretation, see Reese Exploration, Inc. v.

Williams Natural Gas Co., 983 F.2d 1514, 1518-19 (10th Cir. 1993)

(interpretation of unambiguous contract terms reviewed de novo), rather than

focusing on factual questions of the actions Bancamerica and ASARCO did or did

not take.

-7-

On appeal, Trinity contends Bancamerica and ASARCO failed to comply

with all of the terms of their orders, and, therefore, the regulation's presumption

of consistency with the national contingency plan is inapplicable. In particular,

Trinity claims that language in the orders required Bancamerica and ASARCO to

satisfy the national contingency plan's public comment requirements,5 and that

Bancamerica and ASARCO failed to do so. We review this issue de novo,6

 and

finding Trinity's argument unconvincing, affirm the district court's holding.

Trinity relies on a provision in the Environmental Protection Agency order

to Bancamerica that states "all actions required to be taken pursuant to the terms

of this Order shall be undertaken in accordance with the requirements of all
-8-

applicable local, state, and Federal laws and regulations," and an analogous

provision in the Environmental Protection Agency's order to ASARCO. Trinity

contends these provisions required Bancamerica and ASARCO to comply with all

the regulations of the national contingency plan (including the public comment

requirements) to comply with the Environmental Protection Agency orders. That

is, only by satisfying all the requirements of the national contingency plan could

Bancamerica and ASARCO comply with the terms of their orders so as to obtain

the regulation's presumption of acting "consistent with the national contingency

plan."

We decline to accept this argument because, as the district court correctly

noted, such an interpretation of the Environmental Protection Agency orders

"would in effect render meaningless the regulation that deems actions taken in

compliance with such orders to be consistent with the [national contingency

plan]." Id. The fallacy of Trinity's argument is obvious. To obtain the

regulation's presumption of consistency with the national contingency plan,

Bancamerica and ASARCO would actually need to satisfy every requirement of

the plan, thus eliminating any need for the presumption. Furthermore, in the

order to Bancamerica, the Environmental Protection Agency expressly stated the

work to be performed pursuant to the order, if properly performed, would be
7

 The Environmental Protection Agency first promulgated the national

contingency plan in 1982, reissued it in 1985, and then substantially revised it in

1990. Analytical Measurements, Inc. v. Keuffel & Esser Co., 843 F. Supp. 920,

932 (D.N.J. 1993). The Environmental Protection Agency added the regulation at

issue in 1990. See 55 Fed. Reg. 8666 (1990).

-9-

"consistent with the provisions of the National Contingency Plan." Thus, Trinity's

interpretation of the "applicable law" provisions similarly would render

meaningless this provision of the Environmental Protection Agency order.

Contrary to Trinity's allegations, our holding does not make meaningless

the "applicable law" provisions. Such provisions protect the Environmental

Protection Agency from foreclosing additional enforcement options and ensure

private persons engaged in a cleanup comply with applicable state and local laws

and regulations. Our holding does not impair the accomplishment of these goals.

The Environmental Protection Agency's comments on its regulations, which

are entitled to substantial deference, Martin v. Occupational Safety & Health

Review Comm'n, 499 U.S. 144, 150-51 (1991), further support our holding. When

drafting the 1990 national contingency plan,7 the Environmental Protection

Agency clearly contemplated that § 106 orders governing private persons engaged

in response actions might not contain all of the "extensive technical and public
-10-

participation requirements" of the plan. See 55 Fed. Reg. 8666, 8797 (1990). 

Nonetheless, the Environmental Protection Agency stated such orders contained

the cleanup standards necessary for consistency with the national contingency

plan, and therefore "defendants will have acted 'consistent with the [national

contingency plan]' when they comply with a section 106 order." Id.

Accordingly, we find the correct reading of the "applicable law" provisions

of the Environmental Protection Agency orders to Bancamerica and ASARCO to

be that they refer to laws and regulations other than the national contingency plan,

and did not require Bancamerica and ASARCO to meet the requirements of the

national contingency plan. Therefore, we affirm the district court's holding that

the orders did not require Bancamerica and ASARCO to comply with the national

contingency plan's public comment requirements.

II

Was it necessary for the district court to decide whether the cleanup was a

"removal" or a "remedial" action?

The Comprehensive Environmental Response, Compensation, and Liability

Act contemplates two different types of environmental cleanups, referred to as
8

 Trinity excepts Bancamerica's actions related to the barrels from this

assertion.

-11-

"removal actions" and "remedial actions." See 42 U.S.C. § 9601(23), (24)

(defining removal and remedial actions). "Generally speaking, a removal is a

short-term limited response to a more manageable problem, while a remedial

action involves a longer term, more permanent and expensive solution to a more

complex problem." Tri-County Business Campus Joint Venture v. Clow Corp.,

792 F. Supp. 984, 991 (E.D. Pa. 1992). The national contingency plan's

regulations governing "remedial actions" are much more stringent and demanding

than those governing "removal actions." Sherwin-Williams Co. v. City of

Hamtramck, 840 F. Supp. 470, 475 (E.D. Mich. 1993); Channel Master Satellite

Sys., Inc. v. JFD Elecs. Corp., 748 F. Supp. 373, 384 (E.D.N.C. 1990). The

district court did not decide whether Bancamerica and ASARCO's response action

was properly characterized as a removal or a remedial action. Trinity argues that

such an inquiry was a necessary threshold question prior to determining whether

the cleanup was "consistent with the national contingency plan." Additionally,

Trinity asserts that Bancamerica and ASARCO's response action was a remedial

action,8 and that the national contingency plan's rigorous regulations governing

remedial actions were incorporated into the Environmental Protection Agency's
9

 This issue does not involve ASARCO because its response actions did not

begin until 1991.

-12-

orders through the "all applicable ... laws and regulations" provisions discussed

above. These arguments are simply variants of Trinity's first contention, and fail

for the same reasons.

Because of the regulation presuming consistency with the national

contingency plan for response actions performed according to the terms of an

Environmental Protection Agency order, see 40 C.F.R. § 300.700(c)(3)(ii) (1995),

whether Bancamerica and ASARCO's response actions are better characterized as

removal or remedial is irrelevant. In order for their response actions to be

consistent with the national contingency plan, Bancamerica and ASARCO did not

need to satisfy any of the plan's regulations governing either removal or remedial

actions; they needed only to satisfy the duties and obligations set forth in the

Environmental Protection Agency's orders. Accordingly, a determination by the

district court of whether the response action was a removal or a remedial action

was unnecessary.

III

Did the district court erroneously allow Bancamerica

9

 to recover for

response costs incurred in 1988 and 1989?
10 Trinity argues in part that the 1985 version of the plan governed

Bancamerica's 1988 and 1989 actions, and that that version did not contain a

presumption of plan consistency.

-13-

Trinity next contends, for a number of alternative reasons, the 199010

national contingency plan's presumption of consistency for response actions taken

in compliance with Environmental Protection Agency orders, see 40 C.F.R.

§ 300.700(c)(3)(ii) (1995), does not apply to Bancamerica's actions taken in 1988

and 1989. Bancamerica responds that because Trinity did not present this

argument to the district court, we should not consider it on appeal. See Lyons v.

Jefferson Bank & Trust, 994 F.2d 716, 720 (10th Cir. 1993) (federal appellate

courts do not consider issues not passed upon before the trial courts) (citing

Singleton v. Wulff, 428 U.S. 106, 120 (1976)). We agree with Bancamerica that

this claim comes too late for our review.

Contrary to their assertion on appeal, at no time did Trinity raise this

argument before the district court. Indeed, Trinity fails to point to any place in

the record where it argued the district court should consider Bancamerica's 1988

and 1989 response costs separately from the remainder of Bancamerica's costs. 

See County Line, 933 F.2d at 1515 (refusing to hear claim that preclosure

investigatory costs were independently recoverable under Comprehensive
-14-

Environmental Response, Compensation, and Liability Act regardless of

inconsistency with the national contingency plan, where before, district court

appellants had treated all response costs as a single allegation of injury). Rather,

Trinity argued the entirety of Bancamerica's response was not consistent with the

national contingency plan. Trinity's statement regarding where the distinct issue

of Bancamerica's 1988 and 1989 actions was raised in the record cites merely to

general references to the national contingency plan or to specific regulations in

the 1990 plan.

"[V]ague, arguable references to [a] point in the district court proceedings

do not ... preserve the issue on appeal." Lyons, 994 F.2d at 721 (quoting Monarch

Life Ins. Co. v. Elam, 918 F.2d 201, 203 (D.C. Cir. 1990)). "[W]here a litigant

changes to a new theory on appeal that falls under the same general category as an

argument presented at trial" or presents "a theory that was discussed in a vague

and ambiguous way" the theory will not be considered on appeal. Id. at 722. 

Here, we question whether Trinity raised this argument before the district court in

even a vague or ambiguous form. Furthermore, Trinity's new argument gives rise

to a host of new issues, and Bancamerica had no opportunity to present evidence

it may have thought relevant to these issues. Fear of such an unjust occurrence is
-15-

one of the primary rationales underlying the rule that appellate courts do not hear

issues not previously raised. See Singleton, 428 U.S. at 120.

IV

Did the district court err in concluding that Trinity was not entitled to an

offset against their breach of contract liability to Bancamerica?

The district court held Trinity liable to Bancamerica for failure to pay

property taxes on the site, which Trinity was obligated to do under the lease. 

Bancamerica, 900 F. Supp. at 1480. Trinity argues it was entitled to offset its tax

liability to Bancamerica against a greater sum of money that Bancamerica

allegedly owed it under a different contract. The only evidence Trinity presented

that Bancamerica had not paid the sum allegedly owed was a four page excerpt

from the deposition of its vice-president. Id. Trinity had never provided

Bancamerica with written notice of this claimed default, and the district court

found Trinity failed to establish that Bancamerica had not fully paid the debt. Id.

On appeal, Trinity has pled no evidence showing this finding of fact to be clearly

erroneous. Accordingly, we affirm the district court's refusal to grant an offset.

V
11 Although this was not one of the reasons for which the district court

refused to award Bancamerica and ASARCO prejudgment interest, see

Bancamerica, 900 F. Supp. at 1469-70, Trinity correctly notes we may affirm the

district court's holding for any reason supported by the record. See United States

v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994).

-16-

Are Bancamerica and ASARCO entitled to prejudgment interest?

Bancamerica and ASARCO contend the district court erred in refusing to

grant them prejudgment interest on the response costs for which it held Trinity

liable. Indeed, they claim § 107(a) of the Comprehensive Environmental

Response, Compensation and Liability Act, 42 U.S.C. § 9607(a), mandates the

award of such interest. Trinity responds that Bancamerica's and ASARCO's

contribution action was pursuant to § 113(f), 42 U.S.C. § 9613(f) (1994), not

§ 107(a), see Bancamerica, 900 F. Supp. 1450, and that although § 107(a)

provides for prejudgment interest, it does so only for actions proceeding under

that section. See 42 U.S.C. § 9607(a)(4). Trinity further argues § 113(f) does not

provide for the award of prejudgment interest, and so Bancamerica's and

ASARCO's claim must fail.11

We review the issue of whether prejudgment interest may be granted in

§ 113(f) contribution actions de novo. See United States v. Diaz, 989 F.2d 391,

392 (10th Cir. 1993) (construction of federal statues reviewed de novo); Driver
-17-

Music Co. v. Commercial Union Ins. Cos., 94 F.3d 1428, 1433 (10th Cir. 1996)

(Although a "district court's award of prejudgment interest is generally subject to

an abuse of discretion standard .... [A]ny statutory interpretation or legal analysis

underlying such an award is reviewed de novo."). We hold prejudgment interest

should be granted in § 113(f) actions in the same fashion as it is granted in § 107

actions.

In arriving at this holding, we must revisit the relationship between cost

recovery actions under § 107(a) and contribution actions under § 113(f). Previous

opinions have laid much of the groundwork. See Colorado & E. R.R. Co., 50 F.3d

at 1534-36; County Line, 933 F.2d at 1515-17. Pursuant to § 107, the

Comprehensive Environmental Response, Compensation, and Liability Act

generally imposes joint and several liability on persons deemed responsible for

the release or threatened release of hazardous substances. See, e.g., County Line,

933 F.2d at 1515 & n.11. When enacted in 1980,

[The Comprehensive Environmental Response, Compensation, and

Liability Act] made no express provision for contribution actions

among parties held jointly and severally liable under its section 107

liability scheme. As a result, a potentially liable party under section

107 faced the prospect of being singled out as a defendant in a

government or private cost recovery action without any apparent

means of fairly apportioning [Comprehensive Environmental

Response, Compensation, and Liability Act] costs awarded against it

to other persons liable for these costs under the statute. The courts

responded to the inequity of this situation, and its negative
-18-

implications for encouraging private parties to undertake voluntary

[Comprehensive Environmental Response, Compensation, and

Liability Act] cleanups, by recognizing an implicit federal right to

contribution under [the Comprehensive Environmental Response,

Compensation, and Liability Act]. Congress ratified these efforts in

1986 by amending [the Comprehensive Environmental Response,

Compensation, and Liability Act] section 113 to expressly recognize

a right of contribution under the statute.

Id. at 1515-16 (citations omitted). We have since held an action between

potentially liable persons such as Bancamerica, ASARCO and Trinity to apportion

Comprehensive Environmental Response, Compensation, and Liability Act

response costs between them is "the quintessential claim for contribution" and

proceeds pursuant to § 113 rather than § 107, regardless of how pled. Colorado

& E. R.R., 50 F.3d at 1536, 1538; see also Control Data Corp. v. S.C.S.C. Corp.,

53 F.3d 930, 934-35 (8th Cir. 1995); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d

761, 764 (7th Cir. 1994); but see, e.g., Laidlaw Waste Sys. Inc. v. Mallinckrodt,

Inc., 925 F. Supp. 624, 629-31 (E.D. Mo. 1996) (allowing potentially liable

private party to pursue Comprehensive Environmental Response, Compensation,

and Liability Act cost recovery and contribution action under both §§ 107 and

113).

However, although such cost apportionment actions must be brought under

the rubric of § 113(f), that section does not of itself create any new liabilities. 

Rather, it simply confirms the right of a person potentially jointly and severally
-19-

liable under § 107(a) to obtain contribution from other potentially liable persons. 

See H.R. Rep. No. 99-253(I), 99th Cong., 2d Sess. 79, reprinted in 1986 U.S.

Code Cong. & Admin. News 2835, 2861 (citations omitted), quoted in County

Line, 933 F.2d at 1517. It is no more than a "mechanism for apportioning

[Comprehensive Environmental Response, Compensation, and Liability Act]-

defined costs." County Line, 933 F.2d at 1517. Thus, of necessity it must

incorporate the liabilities set forth in § 107(a), as those are the costs to be

equitably apportioned. See County Line, 933 F.2d at 1516 ("[S]ection 107(a)

must be the source for any right to contribution plaintiffs may have."); Control

Data, 53 F.3d at 934-36 ("Recovery of response costs by a private party under

[the Comprehensive Environmental Response, Compensation, and Liability Act]

is a two-step process. Initially, a plaintiff must prove that the defendant is liable

under [§ 107(a)]. Once that is accomplished, ... the question is what portion of

the plaintiff's response costs will the defendant be responsible for [under

§ 113(f)]?" (Footnote omitted)); Avnet, Inc. v. Allied Signal, Inc., 825 F. Supp.

1132, 1137 (D.R.I. 1992) ("Section 113(f) ... did not add a new cause of action,

but ... only affirm[s] and make[s] clear an existing cause of action for

contribution under Section 107".).
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Understanding of this relationship and review of the statutory language of

§ 107(a) leads us to the inescapable conclusion that prejudgment interest must be

awarded in § 113(f) cases just as it is in § 107(a) cases. Section 107(a) makes

certain enumerated persons liable for:

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

[government entities and]

(B) any other necessary costs of response incurred by any other

person consistent with the national contingency plan.

42 U.S.C. § 9607(a)(4). It further states "[t]he amounts recoverable in an action

under this section shall include interest on the amounts recoverable under

subparagraphs (A) through (D)." Id. Accordingly, the liability to be apportioned

in a § 113(a) contribution action is that set forth in subparagraph (B) of § 107(a),

which amount includes interest. Although § 107 apparently refers only to

"actions under this section," because § 113(f) incorporates the liability provisions

of § 107, in that sense a § 113(f) action for contribution is an action under § 107.

Our holding is consistent with logic, policy, and case law. The purpose of

contribution is to equitably apportion response costs among liable parties. Failure

to grant prejudgment interest on contribution awards may instead result in

inequitable apportionment, because parties awarded contribution will still have

lost the time value of the money they spent on behalf of other liable persons, and
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those persons will have gained an equal amount. Further, refusal to grant

prejudgment interest is a disincentive for private parties to voluntarily undertake

cleanup actions because they will lose the time value of the money they spend on

behalf of other persons. Indeed, it would create a perverse incentive for

responsible parties to delay involvement in cleanups, because as they delay, they

gain the time value of the funds they should be investing in the cleanup. Finally,

other courts have awarded prejudgment interest in § 113(f) contribution actions,

see, e.g., Browning-Ferris Indus. v. Ter Maat, No. 92 C 20259, 1996 WL 67216,

at *4-*5 (N.D. Ill. Feb. 16, 1996); Boeing Co. v. Cascade Corp., 920 F. Supp.

1121, 1132, 1140 (D. Ore. 1996), whereas we are aware of no cases holding

§ 107(a)'s authorization of prejudgment interest inapplicable to § 113(f) actions.

Our holding that § 113(f) incorporates the prejudgment interest provision of

§ 107(a) does not end discussion of whether Bancamerica and ASARCO are

entitled to such interest. Section 107(a) states:

interest shall accrue from the later of (i) the date payment of a

specified amount is demanded in writing, or (ii) the date of the

expenditure concerned. The rate of interest on the outstanding

unpaid balance of the amounts recoverable under this section shall be

the same rate as is specified for interest on investments of the

Hazardous Substance Superfund established under subchapter A of

chapter 98 of title 26.

42 U.S.C. § 9607(a)(4).
12 Trinity argues that the district court admitted this letter into evidence for

the limited purpose of showing notice only, and thus Bancamerica cannot use it to

show demand. This argument is meritless, because what the letter shows notice

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The district court, applying § 107, refused to grant Bancamerica and

ASARCO prejudgment interest for two reasons. First, correctly noting that

"prejudgment interest does not accrue until written demand for a specific dollar

amount is made," it found Bancamerica and ASARCO had failed to make such a

demand. Bancamerica, 900 F. Supp. at 1470. Second, the court held that even if

Bancamerica and ASARCO had made the required demand, they were not entitled

to prejudgment interest because they had not provided the court with the

applicable interest rates or a method with which to compute the interest. Id. We

review the district court's decision to withhold prejudgment interest for an abuse

of discretion. Driver Music, 94 F.3d at 1433.

We hold the district court abused its discretion in finding Bancamerica and

ASARCO failed to meet the demand requirement of § 107(a). On January 20,

1989, Bancamerica sent a letter to Trinity stating Bancamerica had incurred

$45,818.31 for environmental work performed on the site, and that it believed

Trinity to be responsible for these costs. The letter further requested that Trinity

mail Bancamerica a check for $45,818.31. This letter is clearly a written demand

for a specific dollar amount and therefore satisfies the statute.12 ASARCO made
of is that Bancamerica made demand upon Trinity for a specified dollar amount.

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demand on August 13, 1993, when Bancamerica and ASARCO filed their Third

Amended Complaint. In this Complaint, ASARCO notified Trinity it had incurred

response costs "in excess of $1 million," for which it was seeking reimbursement

(plus interest from the date of expenditure). This demand of at least $1 million in

response costs satisfies § 107(a)'s requirement of a written demand of a specific

dollar amount. See In re Bell Petroleum Servs., Inc., 3 F.3d 889, 908 (5th Cir.

1993).

We also hold the district court's refusal to grant Bancamerica and ASARCO

prejudgment interest because they had not provided the court with interest rates or

a method with which to compute the appropriate interest was an abuse of its

discretion. Such a requirement is stated nowhere in the statute. Rather, § 107(a)

speaks in mandatory terms: "The amounts recoverable ... shall include interest." 

42 U.S.C. § 9607(a)(4). Furthermore, the statute itself provides the applicable

interest rates, stating the interest rate shall be the same as that for Superfund

investments. Id. The rates for 1989 through 1993 were identified in Hatco Corp.

v. W.R. Grace & Co.--Conn., 836 F. Supp. 1049, 1090 (D.N.J. 1993), a case that

Bancamerica and ASARCO cited to the District Court in their Post-Trial Brief,
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and in any event were available to the district court from the Department of the

Treasury or the Environmental Protection Agency. See id. The prejudgment

interest should be calculated using generally accepted accounting principles.

We do agree with the district court that it is appropriate to require those

requesting prejudgment interest to provide the court with proper calculations

setting forth the interest they seek. However, we also agree with Bancamerica

and ASARCO that, because interest determinations are compounded calculations,

it may be impossible for parties to provide accurate calculations prior to the

court's allocation of response cost liability. In such instances, parties may submit

their interest calculations to the court subsequent to that finding. See United

States v. Hardage, 750 F. Supp. 1460, 1495-96 (W.D. Okla. 1990), aff'd, 982 F.2d

1436 (10th Cir. 1992), cert. denied, 510 U.S. 913 (1993); United States v.

Northernaire Plating Co., 685 F. Supp. 1410, 1421 (W.D. Mich. 1988), aff'd, 889

F.2d 1497 (6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990).

Accordingly, we hold Bancamerica and ASARCO are entitled to

prejudgment interest on the response costs awarded them, accruing from the later

of the dates Bancamerica and ASARCO made their respective demands upon

Trinity or the date of the expenditure concerned. See 42 U.S.C. § 9607(a)(4). We
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remand to the district court for determination of the appropriate amount of such

interest.

VI

Did the district court err in considering only toxicity and volume in

allocating liability for the site's lead contamination?

In deciding contribution claims, a district court "may allocate response

costs among liable parties using such equitable factors as the court determines are

appropriate." 42 U.S.C. § 9613(f)(1). Here, the district court considered "the

approximate volume of total lead at the Site contributed by [Trinity], and the

degree of toxicity of the lead," and held Trinity responsible for five percent of the

total response costs related to lead contamination. Bancamerica, 900 F. Supp. at

1473-74. Bancamerica and ASARCO argue the district court should have

considered additional factors in calculating the allocation of lead response costs,

and accordingly increased Trinity's allocation.

The district court has "considerable discretion in apportioning equitable

shares of response costs." FMC Corp. v. Aero Indus., Inc., 998 F.2d 842, 846

(10th Cir. 1993). We reverse only upon an abuse of that discretion. See id. at
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847; United States v. R.W. Meyer, Inc., 932 F.2d 568, 573 (6th Cir. 1991). This

holds particularly true in a complex case such as this one, wherein the district

court engaged in extensive fact-finding during a trial lasting more than seventeen

days.

Although courts have looked to a number of factors in making such

allocations, see, e.g., Environmental Transp. Sys., Inc. v. ENSCO, Inc., 969 F.2d

503, 508-09 (7th Cir. 1992) (listing possible considerations), the Comprehensive

Environmental Response, Compensation, and Liability Act states the court need

only consider those equitable factors it deems appropriate. 42 U.S.C. §

 9613(f)(1). Indeed, we have stated "a court may consider several factors, a few

factors, or only one determining factor, ... depending on the totality of the

circumstances presented to the court." Colorado & E. R.R Co., 50 F.3d at 1536

(quoting Environmental Transp. Sys., Inc., 969 F.2d at 509). The clause

"depending on the totality of the circumstances" does not, as Bancamerica and

ASARCO argue, mandate that the district court weigh all possibly relevant

factors. It is simply a statement of the self-evident proposition that the circumstances of the contamination and the cleanup will drive the district court's

determination of what equitable factors are appropriate to consider. After review

of both the record and the district court's fifty-six-page (excluding headnotes)
13 It is noteworthy that some of the factors Bancamerica and ASARCO

contend the district court should have considered were in fact subsumed into the

two factors the district court explicitly contemplated. For example, although the

district court refused to expressly consider the greater bioavailability of lead from

paint versus lead from slag and smelter ash, such a consideration was inherent in

the court's weighing of the greater toxicity of lead from paint.

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opinion, we cannot say the district court abused its discretion in considering only

the two factors noted above.13

VII

Did the district court err in failing to award Bancamerica damages on its

breach of contract claim regarding the underground storage tanks?

Bancamerica's final contention on appeal is that Trinity breached its lease

contract with Bancamerica by operating leaking underground storage tanks and

failing to repair them. The tanks leaked gasoline into the surrounding earth,

necessitating removal of the contaminated soil. We review the district court's

finding that no breach of contract existed under the clearly erroneous standard. 

Production Credit Ass'n v. Alamo Ranch Co., 989 F.2d 413, 419 (10th Cir. 1993);

Chaparral Resources, Inc. v. Monsanto Co., 849 F.2d 1286, 1289 (10th Cir.

1988).
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The tanks were present on the site when Trinity entered its lease with

Bancamerica, and the district court found Trinity used only one of the three tanks,

and it only for a short time at the inception of the lease. Bancamerica, 900 F.

Supp. at 1478. The court further found Bancamerica failed to establish that

Trinity improperly operated or maintained the tanks, or even that the soil

contamination occurred during the period of Trinity's lease. Id. The leakage

could have occurred prior to Trinity's occupation of the site, or during the year

between when Trinity left the site and when Bancamerica discovered the leaking

gasoline. Indeed, some leakage occurred during removal of the "rusted and

pitted" tanks. On appeal, Bancamerica has failed to produce evidence showing

the district court's holding to be clearly erroneous, and we accordingly affirm.

AFFIRMED in part, REVERSED in part, and REMANDED for further

consideration consistent with this opinion.