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, TACHAand 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 6 57870 (10th Cir. Nov. 13, 1996).* The Advisory Committee Notes to Fed. R. App. P. 3 7 make it clear that

recall and reformation of the mandate is appropriat e 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 overlook ed, 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 determin ation of the question. -2- Our opinion, contrary to the prescription of Fed. R . App. P. 37, contained no instructions to the district court concerning th e award of postjudgment interest. Consequently, Plaintiffs Bancamerica Commercial Corp. and ASARCO, Inc. moved that we reform the mandate to indicate intere st 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 distric t court's judgment is mandatory. 28 U.S.C. § 1961(a) (1994). Rule 37 pr ovides 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 co ntain instructions with respect to allowance of interest." Failing to previously supp ly such instructions, we now repair our error. *-3-

In determining whether postjudgment interest shouldaccrue 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 basicall y sound but is modified on remand, post-judgment interest accrues from the dat e 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 postjudg ment 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 affirme d 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 c ommencement of accrual of postjudgment interest]." 818 F.2d at 738. Accordi ngly, 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 accrue d prejudgment interest). Plaintiffs additionally filed a bill of costs pursu ant 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 ele ven copies of their second brief (75 pages) at 7¢ per page totals $57.75, and the co st of eleven copies of their fourth brief (56 pages) at 7¢ per page totals $43.1 2. We also allow $388.00 for** This sum consists of five times the cost of 820 c opies at 7¢ per copy,

two oversize copies at 10¢ per copy, and 40 color c opies at 50¢ per copy. (Although Plaintiffs list the actual cost of the co lor copies as 99¢ per copy, pursuant to 10th Cir. R. 39.1 the taxable cost of r eproducing necessary copies will in no event exceed 50¢ per page, regardless of repr oductive 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 BRORBYPUBLISH 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 t he briefs) of Lewis, Rice & Fingersh, L.C., Kansas City, Missouri, for Bancamer ica Commercial Corporation. Earl K. Madsen of Bradley, Campbell, Carney & Madse n, Golden, Colorado, for Asarco, Incorporated. Frederick W. Addison, III (Elizabeth E. Mack with h im 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 realignment s, 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 En vironmental Response, Compensation, and Liability Act of 1980 for contrib ution to costs the Plaintiffs incurred in an environmental cleanup of an industri al site. Additionally, Bancamerica asserted a pendant state law breach of contract claim. The district court held Trinity partially responsible for the si te's environmental contamination, and ordered Trinity to reimburse Bancamerica and AS ARCO for the $555,293.55 in expenses attributable to cleanup of Trinity's po llution. It also held Trinity liable to Bancamerica for $70,178.07 in unpaid taxe s on Bancamerica's breach of contract claim. We reverse and remand the districtcourt'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 t o 1902 ASARCO operated what was at that time one of the world's largest le ad smelters at the site. From 1907 to 1984 nonparties to this suit operated a ste el 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 forfeit ure. Bancamerica immediately leased the site to Trinity, who occupied it until 1 987. Trinity also used large amounts of lead-based paints and solvents on the si te. ASARCO, the nonparties, and Trinity all contaminated the site to some exten t. Id. at 1448-49.

Trinity and Bancamerica canceled the lease in 1987, at which time Trinity discontinued operations at the site. In conjunctio n with this cancellation, Bancamerica contracted to purchase certain cranes l ocated 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, Bancam erica discovered a variety of contamination problems. Trinity left ap proximately 300 barrels on the site, some of which were leaking and/or contained h azardous 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 responsibl e), and lead-based paint (for which the nonparties and Trinity were responsi ble). Id. at 1449.

In 1989, the Environmental Protection Agency notifi ed Bancamerica, ASARCO, and Trinity of their potential liability un der the Comprehensive Environmental Response, Compensation, and LiabilityAct. In 1990, the Environmental Protection Agency and Bancamerica ent ered into an Administrative Consent Order that required Bancamer ica to engage in a cleanup of the site. Thereafter, in 1991, the Environmenta l Protection Agency issued a Unilateral Comprehensive Environmental Response, Co mpensation, and Liability Act § 106 Order to ASARCO, requiring it to assist i n the completion of the cleanup. Bancamerica and ASARCO, without assistanc e from Trinity, completed the cleanup. They then brought this suit seeking c ontribution from Trinity.

The parties raise seven issues on appeal. The firs t four, raised by Trinity, are: (1) whether the Environmental Protection Agen cy orders required Bancamerica and ASARCO to meet the public comment r equirements 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 r aised by Bancamerica and ASARCO are: (5) whether Bancamerica and ASARCO wer e entitled to prejudgment interest; (6) whether the district court e rred in considering only toxicity and volume in allocating responsibility (and liabil ity) for cleanup of the lead contamination; and (7) whether Trinity breached its lease with Bancamerica through improper maintenance or operation of the un derground storage tanks. We reverse the district court's refusal to award Banca merica 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 requ ire 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).

4The national contingency plan is a set of regulat ions promulgated by the Environmental Protection Agency that "establish[es] procedures and standards for responding to releases of hazardous substances, pol lutants and contaminants." 42 U.S.C. § 9605; see 40 C.F.R. Part 300 (1995).

-6- In order for Bancamerica and ASARCO to obtain contr ibution from Trinity, their response actions 3 must have been "consistent with the national conti ngency plan." 42 U.S.C. § 9607(a)(4)(B) (1994). 4 Importantly, a regulation in the national contingency plan provides that "[a]ny resp onse action carried out in compliance with the terms of an order issued by [th e Environmental Protection Agency] pursuant to section 106 of [the Comprehensi ve Environmental Response, Compensation, and Liability Act] ... will be consid ered '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 wer e 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 nat ional contingency plan. Id. at 1453.5 The national contingency plan requires private pa rties 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 findin g that response costs were incurred consistent with the national contingency p lan as a finding of fact entitled to the clearly erroneous standard. Here, we instea d engage in de novo review because Trinity's argument raises questions of stat utory interpretation, see United States v. Diaz , 989 F.2d 391, 392 (10th Cir. 1993) (statutory con struction 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 revie wed de novo), rather than focusing on factual questions of the actions Bancam erica 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, therefo re, the regulation's presumption of consistency with the national contingency plan i s inapplicable. In particular, Trinity claims that language in the orders required Bancamerica and ASARCO to satisfy the national contingency plan's public comm ent 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 wit h the requirements of all-8-

applicable local, state, and Federal laws and regul ations," 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 (i ncluding the public comment requirements) to comply with the Environmental Prot ection Agency orders. That is, only by satisfying all the requirements of the national contingency plan could Bancamerica and ASARCO comply with the terms of the ir 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 t he [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 satis fy every requirement of the plan, thus eliminating any need for the presump tion. Furthermore, in the order to Bancamerica, the Environmental Protection Agency expressly stated the work to be performed pursuant to the order, if prop erly performed, would be7The Environmental Protection Agency first promulg ated 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 Ag ency added the regulation at issue in 1990. See 55 Fed. Reg. 8666 (1990).

-9- "consistent with the provisions of the National Con tingency Plan." Thus, Trinity's interpretation of the "applicable law" provisions s imilarly would render meaningless this provision of the Environmental Pro tection Agency order.

Contrary to Trinity's allegations, our holding does not make meaningless the "applicable law" provisions. Such provisions p rotect the Environmental Protection Agency from foreclosing additional enfor cement options and ensure private persons engaged in a cleanup comply with ap plicable state and local laws and regulations. Our holding does not impair the a ccomplishment of these goals.

The Environmental Protection Agency's comments on i ts 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, 7the Environmental Protection Agency clearly contemplated that § 106 orders gover ning private persons engaged in response actions might not contain all of the "e xtensive technical and public-10-

participation requirements" of the plan. See 55 Fed. Reg. 8666, 8797 (1990). Nonetheless, the Environmental Protection Agency st ated such orders contained the cleanup standards necessary for consistency wit h the national contingency plan, and therefore "defendants will have acted 'co nsistent with the [national contingency plan]' when they comply with a section 106 order." Id.

Accordingly, we find the correct reading of the "ap plicable law" provisions of the Environmental Protection Agency orders to Ba ncamerica and ASARCO to be that they refer to laws and regulations other th an the national contingency plan, and did not require Bancamerica and ASARCO to meet the requirements of the national contingency plan. Therefore, we affirm th e district court's holding that the orders did not require Bancamerica and ASARCO t o comply with the national contingency plan's public comment requirements.

II Was it necessary for the district court to decide w hether the cleanup was a "removal" or a "remedial" action?

The Comprehensive Environmental Response, Compensat ion, and Liability Act contemplates two different types of environment al cleanups, referred to as8Trinity 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). "Generall y speaking, a removal is a short-term limited response to a more manageable pr oblem, while a remedial action involves a longer term, more permanent and e xpensive solution to a more complex problem." Tri-County Business Campus Joint Venture v. Clow Co rp. , 792 F. Supp. 984, 991 (E.D. Pa. 1992). The nationa l contingency plan's regulations governing "remedial actions" are much m ore 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 a nd ASARCO's response action was properly characterized as a removal or a remedi al action. Trinity argues that such an inquiry was a necessary threshold question prior to determining whether the cleanup was "consistent with the national conti ngency plan." Additionally, Trinity asserts that Bancamerica and ASARCO's respo nse action was a remedial action, 8 and that the national contingency plan's rigorous regulations governing remedial actions were incorporated into the Environ mental Protection Agency's9This issue does not involve ASARCO because its re sponse actions did not

begin until 1991.

-12- orders through the "all applicable ... laws and reg ulations" provisions discussed above. These arguments are simply variants of Trin ity's first contention, and fail for the same reasons.

Because of the regulation presuming consistency wit h the national contingency plan for response actions performed acc ording 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 th eir response actions to be consistent with the national contingency plan, Banc america and ASARCO did not need to satisfy any of the plan's regulations gover ning eitherremoval or remedial actions; they needed only to satisfy the duties and obligations set forth in the Environmental Protection Agency's orders. Accordin gly, a determination by the district court of whether the response action was aremoval or a remedial action
was unnecessary. III Did the district court erroneously allow Bancameric a 9 to recover for response costs incurred in 1988 and 1989?10Trinity argues in part that the 1985 version of t he 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 1990 10 national contingency plan's presumption of consiste ncy 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 Banca merica's actions taken in 1988 and 1989. Bancamerica responds that because Trinity did not present this argument to the district court, we should not consi der it on appeal. See Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 720 (10th Cir. 1993) (federal appel late courts do not consider issues not passed upon befor e the trial courts) (citing Singleton v. Wulff

, 428 U.S. 106, 120 (1976)). We agree with Bancame rica that this claim comes too late for our review.

Contrary to their assertion on appeal, at no time d id 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 shoul d consider Bancamerica's 1988 and 1989 response costs separately from the remaind er of Bancamerica's costs.
See County Line , 933 F.2d at 1515 (refusing to hear claim that pre closure investigatory costs were independently recoverable under Comprehensive-14-

Environmental Response, Compensation, and LiabilityAct regardless of inconsistency with the national contingency plan, w here before, district court appellants had treated all response costs as a sing le allegation of injury). Rather, Trinity argued the entirety of Bancamerica's respon se was not consistent with the national contingency plan. Trinity's statement reg arding where the distinct issue of Bancamerica's 1988 and 1989 actions was raised i n 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 d istrict 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 considere d on appeal. Id. at 722. Here, we question whether Trinity raised this argum ent before the district court in even a vague or ambiguous form. Furthermore, Trini ty's new argument gives rise to a host of new issues, and Bancamerica had no opp ortunity to present evidence it may have thought relevant to these issues. Fearof such an unjust occurrence is-15-

one of the primary rationales underlying the rule t hat 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 Trini ty was not entitled to an offset against their breach of contract liability t o Bancamerica?

The district court held Trinity liable to Bancameri ca for failure to pay property taxes on the site, which Trinity was oblig ated to do under the lease.
Bancamerica , 900 F. Supp. at 1480. Trinity argues it was enti tled to offset its tax liability to Bancamerica against a greater sum of m oney that Bancamerica allegedly owed it under a different contract. The only evidence Trinity presented that Bancamerica had not paid the sum allegedly owe d was a four page excerpt from the deposition of its vice-president. Id. Trinity had never provided Bancamerica with written notice of this claimed def ault, 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 thi s finding of fact to be clearly erroneous. Accordingly, we affirm the district cou rt's refusal to grant an offset.

V11 Although this was not one of the reasons for whic h the district court

refused to award Bancamerica and ASARCO prejudgmentinterest, see Bancamerica , 900 F. Supp. at 1469-70, Trinity correctly notes we may affirm the district court's holding for any reason supported b y 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 e rred in refusing to grant them prejudgment interest on the response cos ts for which it held Trinity liable. Indeed, they claim § 107(a) of the Compreh ensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9607(a), mandates the award of such interest. Trinity responds that Banc america'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 interestmay 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 statu es 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 statuto ry interpretation or legal analysis underlying such an award is reviewed de novo."). W e hold prejudgment interest should be granted in § 113(f) actions in the same f ashion as it is granted in § 107 actions.

In arriving at this holding, we must revisit the re lationship between cost recovery actions under § 107(a) and contribution ac tions 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 pe rsons deemed responsible for the release or threatened release of hazardous subs tances. 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 contri bution actions among parties held jointly and severally liable und er its section 107 liability scheme. As a result, a potentially liabl e party under section 107 faced the prospect of being singled out as a de fendant in a government or private cost recovery action without any apparent means of fairly apportioning [Comprehensive Environ mental Response, Compensation, and Liability Act] costs aw arded against it to other persons liable for these costs under the s tatute. The courts responded to the inequity of this situation, and it s negative-18-

implications for encouraging private parties to und ertake voluntary [Comprehensive Environmental Response, Compensation , and Liability Act] cleanups, by recognizing an implicitfederal right to contribution under [the Comprehensive Environmental Response, Compensation, and Liability Act]. Congress ratifie d these efforts in 1986 by amending [the Comprehensive Environmental R esponse, Compensation, and Liability Act] section 113 to exp ressly recognize a right of contribution under the statute. Id. at 1515-16 (citations omitted). We have since hel d an action between potentially liable persons such as Bancamerica, ASA RCO 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, regar dless 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) (allowin g potentially liable private party to pursue Comprehensive Environmental Response, Compensation, and Liability Act cost recovery and contribution ac tion under both §§ 107 and 113).

However, although such cost apportionment actions m ust be brought under the rubric of § 113(f), that section does not of it self create any new liabilities. Rather, it simply confirms the right of a person po tentially jointly and severally-19-

liable under § 107(a) to obtain contribution from o ther 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 "mechanis m 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 pl aintiffs may have."); Control
Data , 53 F.3d at 934-36 ("Recovery of response costs bya private party under [the Comprehensive Environmental Response, Compensation, and Liability Act] is a two-step process. Initially, a plaintiff mustprove that the defendant is liable under [§ 107(a)]. Once that is accomplished, ... t he question is what portion of the plaintiff's response costs will the defendant b e 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 n ot add a new cause of action, but ... only affirm[s] and make[s] clear an existin g cause of action for contribution under Section 107".).-20-

Understanding of this relationship and review of th e 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 incurre d by [government entities and] (B) any other necessary costs of response incurred by any other person consistent with the national contingency pla n. 42 U.S.C. § 9607(a)(4). It further states "[t]he a mounts recoverable in an action under this section shall include interest on the am ounts 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 app arently refers only to "actions under this section," because § 113(f) inco rporates the liability provisions of § 107, in that sense a § 113(f) action for contr ibution is an action under § 107.

Our holding is consistent with logic, policy, and c ase law. The purpose of contribution is to equitably apportion response cos ts among liable parties. Failure to grant prejudgment interest on contribution award s may instead result in inequitable apportionment, because parties awarded contributio n will still have lost the time value of the money they spent on beha lf of other liable persons, and-21-

those persons will have gained an equal amount. Fu rther, refusal to grant prejudgment interest is a disincentive for private parties to voluntarily undertake cleanup actions because they will lose the time val ue of the money they spend on behalf of other persons. Indeed, it would create aperverse incentive for responsible parties to delay involvement in cleanup s, because as they delay, they gain the time value of the funds they should be inv esting 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 awa re of no cases holding § 107(a)'s authorization of prejudgment interest in applicable to § 113(f) actions.

Our holding that § 113(f) incorporates the prejudgm ent interest provision of § 107(a) does not end discussion of whether Bancame rica and ASARCO are entitled to such interest. Section 107(a) states: interest shall accrue from the later of (i) the dat e payment of a specified amount is demanded in writing, or (ii) th e date of the expenditure concerned. The rate of interest on the outstanding unpaid balance of the amounts recoverable under thi s section shall be the same rate as is specified for interest on inves tments of the Hazardous Substance Superfund established under sub chapter A of chapter 98 of title 26. 42 U.S.C. § 9607(a)(4).12Trinity argues that the district court admitted t his letter into evidence for

the limited purpose of showing notice only, and thu s Bancamerica cannot use it to show demand. This argument is meritless, because w hat the letter shows notice -22- The district court, applying § 107, refused to gran t 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 ha d 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 provid ed 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 pr ejudgment 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 § 1 07(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 lett er is clearly a written demand for a specific dollar amount and therefore satisfie s the statute. 12 ASARCO madeof is that Bancamerica made demand upon Trinity fora specified dollar amount.

-23- demand on August 13, 1993, when Bancamerica and ASA RCO filed their Third Amended Complaint. In this Complaint, ASARCO notif ied 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 inte rest was an abuse of its discretion. Such a requirement is stated nowhere i n the statute. Rather, § 107(a) speaks in mandatory terms: "The amounts recoverabl e ... shallinclude interest." 42 U.S.C. § 9607(a)(4). Furthermore, the statute i tself 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 i n 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,-24-

and in any event were available to the district cou rt from the Department of the Treasury or the Environmental Protection Agency. See id . The prejudgment interest should be calculated using generally accep ted accounting principles.

We do agree with the district court that it is appr opriate 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 ar e compounded calculations, it may be impossible for parties to provide accurat e calculations prior to the court's allocation of response cost liability. In s uch instances, parties may submit their interest calculations to the court subsequentto 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 ent itled to prejudgment interest on the response costs awarded them, accruing from the later of the dates Bancamerica and ASARCO made their resp ective demands upon Trinity or the date of the expenditure concerned. See 42 U.S.C. § 9607(a)(4). We-25-

remand to the district court for determination of t he appropriate amount of such interest.

VI Did the district court err in considering only toxi city and volume in allocating liability for the site's lead contaminat ion?

In deciding contribution claims, a district court " may allocate response costs among liable parties using such equitable fac tors as the court determines are appropriate." 42 U.S.C. § 9613(f)(1). Here, the d istrict court considered "the approximate volume of total lead at the Site contri buted by [Trinity], and the degree of toxicity of the lead," and held Trinity r esponsible for five percent of the total response costs related to lead contamination. Bancamerica , 900 F. Supp. at 1473-74. Bancamerica and ASARCO argue the districtcourt should have considered additional factors in calculating the al location 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-26-

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 t his one, wherein the district court engaged in extensive fact-finding during a tr ial 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 consi derations), the Comprehensive Environmental Response, Compensation, and LiabilityAct states the court need only consider those equitable factors it deems appr opriate. 42 U.S.C. § 9613(f)(1). Indeed, we have stated "a court may c onsider several factors, a few factors, or only one determining factor, ... depend ing 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" do es not, as Bancamerica and ASARCO argue, mandate that the district court weigh all possibly relevant factors. It is simply a statement of the self-evid ent proposition that the circumstances of the contamination and the cleanup will d rive the district court's determination of what equitable factors are appropr iate to consider. After review of both the record and the district court's fifty-s ix-page (excluding headnotes)13 It is noteworthy that some of the factors Bancame rica and ASARCO

contend the district court should have considered w ere in fact subsumed into the two factors the district court explicitly contemplated. For example, although the district court refused to expressly consider the gr eater bioavailability of lead from paint versus lead from slag and smelter ash, such aconsideration was inherent in the court's weighing of the greater toxicity of lea d from paint.

-27- opinion, we cannot say the district court abused it s discretion in considering only the two factors noted above. 13

VII Did the district court err in failing to award Banc america damages on its breach of contract claim regarding the underground storage tanks?

Bancamerica's final contention on appeal is that Tr inity breached its lease contract with Bancamerica by operating leaking unde rground 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 th e 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).-28-

The tanks were present on the site when Trinity ent ered its lease with Bancamerica, and the district court found Trinity u sed only one of the three tanks, and it only for a short time at the inception of th e lease. Bancamerica , 900 F. Supp. at 1478. The court further found Bancamericafailed 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 o f the site, or during the year between when Trinity left the site and when Bancame rica discovered the leaking gasoline. Indeed, some leakage occurred during rem oval of the "rusted and pitted" tanks. On appeal, Bancamerica has failed t o produce evidence showing the district court's holding to be clearly erroneou s, and we accordingly affirm.

AFFIRMED in part, REVERSED in part, and REMANDED for further consideration consistent with this opinion.