1

The Honorable Ronald E. Longstaff, United States District Judge for the

Southern District of Iowa. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-2989

___________

Dico, Inc., *

*

Plaintiff - Appellant, *

*

v. *

* Appeal from the United States 

Amoco Oil Company, Chevron * District Court for the Southern

Chemical Company; Monsanto * District of Iowa.

Company; Shell Oil Company; Bayer *

Corporation, *

*

Defendants - Appellees. *

___________

Submitted: January 13, 2003

Filed: August 14, 2003 

___________

Before BOWMAN, RICHARD S. ARNOLD and BYE, Circuit Judges.

___________

BYE, Circuit Judge.

Dico, Inc., appeals the district court's1

 grant of summary judgment dismissing

its direct cost recovery action under the Comprehensive Environmental Response,

Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601-9675. 
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Dico was compelled by the Environmental Protection Agency (EPA), pursuant

to Unilateral Administrative Orders (UAO), to clean up contamination located on

property it owned in Des Moines, Iowa. After incurring approximately $5.7 million

in cleanup costs, Dico brought suit against Shell Oil Company, BP Products North

America, Inc., Monsanto Company, Chevron Chemical Company, and Bayer

Corporation (collectively "Customer Group") seeking direct recovery of those costs

and any future costs or alternatively, seeking pro rata contribution. The district court

dismissed Dico's direct cost recovery action holding that Dico, as a potentially

responsible party (PRP), was limited to seeking contribution from the Customer

Group. The district court also dismissed Dico's action for contribution because the

Customer Group had entered into a judicially-approved consent degree with the EPA

which included a grant of protection from other PRPs who might seek contribution.

Dico appeals the district court's dismissal and we affirm. 

I

In 1974, trichloroethylene (TCE) was detected in water coming from

underground wells located near property owned by Dico and maintained by the Des

Moines Water Works. The EPA designated the area the "Des Moines TCE Site" and

placed it on the national priority list. The Des Moines TCE Site was divided into

several "operable units." Operable Unit-2 ("OU-2") and Operable Unit-4 ("OU-4")

(together "OU-2/4") were within Dico's property. Each was contaminated with TCE,

and OU-4 was also contaminated with herbicides and pesticides.

Dico's corporate predecessor, Di-Chem, had operated a chemical formulation

business on the Dico property until the 1970s. In 1994, the EPA issued two UAOs

and Dico conducted two removal actions at OU-2/4. The Customer Group conducted

a third removal action pursuant to an Administrative Order on Consent (AOC). The

EPA also incurred costs associated with the removal actions at OU-2/4.
2

Dico filed the present action seeking cost recovery or contribution from the

customer group in 1997, before the conclusion of settlement negotiations between the

government and the Customer Group. 

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In 1996, the EPA signed a Record of Decision (ROD), confirming completion

of the three removal actions at OU-2/4. The Customer Group requested settlement

negotiations with the government regarding the costs associated with the cleanup

efforts. Pursuant to CERCLA, 42 U.S.C. § 9622(e)(3), the EPA undertook a nonbinding preliminary allocation of responsibility (NBAR) and allocated 61% of the

responsibility to Dico and 39% to the Customer Group collectively. In April 1998,

the EPA formally notified the Customer Group and Dico they were PRPs and

provided each with copies of the NBAR and a proposed consent decree. Dico and the

Customer Group were further notified that settlement with the government would

provide protection from liability in the contribution action brought by Dico arising

out of the same remediations.2

 Despite repeated invitations from the government,

Dico did not respond and chose not to participate in settlement negotiations. On

November 2, 1998, on the eve of reaching an agreement with the Customer Group,

the government reminded Dico that a final consent decree would include contribution

liability protection for the Customer Group. Dico remained steadfast in its refusal to

participate in the negotiations.

On November 29, 1999, the government filed an action in district court and

simultaneously lodged the proposed consent decree. As required by CERCLA, 42

U.S.C. § 9622(d)(2), the consent decree was published in the Federal Register; in

response to which Dico submitted objections and comments. Dico moved to

intervene in the action and to consolidate it with this cost recovery/contribution

action. The district court granted Dico's motion to intervene but deferred ruling on

Dico's motion to consolidate the two actions.
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On March 10, 2000, the government moved to enter the consent decree. Dico

requested an evidentiary hearing arguing 1) a hearing was necessary because the

government failed to provide a fair and complete record, and 2) Dico had a vested

property interest in the contribution action which under the Fifth Amendment could

not be "taken" without due process, i.e., an evidentiary hearing.

The district court denied Dico's request for an evidentiary hearing because Dico

had been provided sufficient opportunity to supplement the record before and after

the action was filed in district court. The district court also rejected Dico's due

process challenge, holding Dico never had a right to contribution because its statutory

contribution claim was at all times limited by 42 U.S.C. § 9613(f)(2) ("A person who

has resolved its liability to the United States . . . in an administrative or judicially

approved settlement shall not be liable for claims for contribution regarding matters

addressed in the settlement."). The district court then granted the government's

motion to enter the consent decree, and denied as moot Dico's motion to consolidate

the contribution action with the action at bar. We affirmed the district court's

decision on appeal. United States v. BP Amoco Oil PLC, 277 F.3d 1012, 1020 (8th

Cir. 2002).

Thereafter, the Customer Group moved for summary judgment in this action

arguing 1) CERCLA § 107(a)(1) and (a)(4)(B) barred Dico's direct action for cost

recovery because Dico was a PRP, and 2) Dico's action for contribution was barred

by the consent decree entered into between the Customer Group and the government.

The district court granted the Customer Group's motion for summary judgment and

this appeal followed. Originally, Dico appealed the dismissal of both causes of action

but has subsequently abandoned its appeal of the dismissal of the contribution claim.

Thus, the only issue before us is whether the district court properly dismissed Dico's

direct cost recovery action.
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II

This court reviews a grant of summary judgment de novo, applying the same

standard as the district court. Jaurequi v. Carter Mfg. Co., Inc., 173 F.3d 1076, 1085

(8th Cir. 1999). Rule 56(c) of the Federal Rules of Civil Procedure provides

summary judgment shall be awarded to a party if there exists no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of law.

When ruling on a summary judgment motion, a court must view the evidence "in the

light most favorable to the nonmoving party." Dush v. Appleton Elec. Co., 124 F.3d

957, 962-63 (8th Cir. 1997). However, a "nonmovant must present more than a

scintilla of evidence and must advance specific facts to create a genuine issue of

material fact for trial." F.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir. 1997). For a

non-moving party to defeat summary judgment, the alleged factual dispute must be

"material to an essential element of the specific theory of recovery at issue." Get

Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992)).

The Customer Group argues Dico's direct cost recovery action is barred

because Dico is a PRP as defined by CERCLA, and CERCLA limits actions between

PRPs to those for contribution. Dico argues CERCLA does not prohibit direct cost

recovery actions between PRPs.

"CERCLA is a comprehensive statute that grants the President broad power to

command government agencies and private parties to clean up hazardous waste sites."

Key Tronic Corp. v. United States, 511 U.S. 809, 814 (1994). "Congress enacted

CERCLA to facilitate the cleanup of hazardous waste sites, and to shift the costs of

environmental response from taxpayers to the parties who benefitted from the use or

disposal of the hazardous substances." Aviall Servs., Inc. v. Cooper Indus., Inc., 263

F.3d 134, 136-37 (5th Cir. 2001) (citing OHM Remediation Serv. v. Evans Cooperage

Co., Inc., 116 F.3d 1574, 1578 (5th Cir. 1997)). CERCLA § 107(a)(1)-(4), 42 U.S.C.

§ 9607(a)(1)-(4), defines the parties responsible for cleanup costs (PRPs) as:
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1. [T]he owner or operator of . . . [the] facility, 

2. Any person who at the time of disposal of any hazardous substance

owned or operated . . . [the] facility . . ., 

3. Any person who . . . arranged for disposal or treatment of . . . hazardous

substances . . . at the facility . . ., and 

4. Any person who accepts . . . hazardous substances for transport to [the

facility for disposal or treatment]. 

CERCLA § 107(a)(4)(A) and (B) makes PRPs liable for:

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

Government . . . not inconsistent with the national contingency plan;

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

consistent with the national contingency plan[.]

Parties incurring cleanup costs pursuant to an order from the EPA, who believe

they are not responsible for the contamination, may bring a claim in federal court to

recover their cleanup costs. United States v. Dico, Inc., 136 F.3d 572, 574 (8th Cir.

1998). The statute provides two avenues for recovery. First, § 107 allows the

government or an "innocent" private party to recover cleanup costs from PRPs

through a direct cost recovery action. See 42 U.S.C. § 9607(a)(4) (stating PRPs "shall

be liable for . . . (A) all costs of removal or remedial action incurred by the United

States Government . . . [and] (B) any other necessary costs of response incurred by

any other person . . . ."). Under § 107, PRPs are held jointly and severally liable for

the costs of cleanup. Thus, one PRP may bear a disproportionate share of the cleanup

costs. Accordingly, though CERCLA as originally drafted contained no express

provision authorizing contribution claims between PRPs, courts interpreting

CERCLA found such causes of action impliedly authorized. Key Tronic, 511 U.S.

at 816 n.7.
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In 1986, as part of the Superfund Amendments and Reauthorization Act

(SARA), 42 U.S.C. §§ 9601-9675, Congress amended CERCLA and provided for an

explicit right of contribution between PRPs under § 113(f)(1). Thereafter, courts held

the express language providing for a right of contribution implied an intent to limit

PRPs to claims for contribution, and to preclude actions between PRPs for direct

recovery. See, e.g., N. J. Turnpike Auth. v. PPG Indus., Inc., 197 F.3d 96, 104 (3d

Cir. 1999) ("The Turnpike is a PRP . . . and its action against other PRPs is properly

characterized as a section 113 action."); Axel Johnson, Inc. v. Carroll Carolina Oil

Co., 191 F.3d 409, 415 (4th Cir. 1999) ("[A]s a general rule any claim for damages

made by a potentially responsible person - even a claim ostensibly made under § 107

- is considered a contribution claim under § 113."); Bedford Affiliates v. Sills, 156

F.3d 416, 424 (2d Cir. 1998) ("[A] party that is itself liable may recover only those

costs exceeding its pro rata share of the entire cleanup expenditure, i.e., contribution

under § 113(f)(1).");Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d

344, 350 (6th Cir. 1998) ("Claims by PRPs . . . seeking costs from other PRPs are

necessarily actions for contribution . . . governed by . . . § 113(f)."); Pinal Creek

Group v. Newmont Mining Corp., 118 F.3d 1298, 1306 (9th Cir. 1997) ("[U]nder

CERCLA, a PRP does not have a claim for the recovery of the totality of its cleanup

costs against other PRPs, and a PRP cannot assert a claim against other PRPs for joint

and several liability."); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489,

1496 (11th Cir. 1996) ("Redwing is a responsible party under CERCLA, and

therefore, its claims against other allegedly responsible parties are claims for

contribution."); United States v. Colo. & E. R. R., 50 F.3d 1530, 1536 (10th Cir.

1995) (holding any claim for apportionment of cleanup costs between PRPs is a claim

for contribution); United Techs. Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96,

101 (1st Cir. 1994) (holding plaintiffs who were by their own admission liable

parties, were in effect asserting an action for contribution); Akzo Coatings, Inc. v.

Aigner Corp., 30 F.3d 761, 764 (7th Cir. 1994) (holding an action by one PRP against

other jointly and severally liable parties is governed by section 113(f)); Amoco Oil
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Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir. 1989) (holding actions between two

liable parties are actions for contribution).

Dico and the Customer Group clearly fall within § 107(a)(1)-(4)'s definition of

a PRP. As such, any action brought by Dico against the Customer Group to recoup

its cleanup costs must be for contribution. Dico, however, citing Key Tronic, argues

its direct action is permissible under CERCLA. Key Tronic involved a claim for

attorney's fees incurred by one PRP in connection with an action for contribution

against another PRP. 511 U.S. at 811. The plaintiff sought to recover attorney's fees

arguing §§ 107 and 113 impliedly provided for an award of attorney's fees to

prevailing parties. In rejecting the argument, the Court described § 107 as "impliedly

authoriz[ing] private parties to recover cleanup costs from other PRP's." Id. at 818

(emphasis added). Dico contends Key Tronic establishes the proposition that "private

parties" is synonymous with "PRPs," and the direct recovery action found in § 107

is available to private parties and PRPs equally. We disagree. Key Tronic did not

involve the issue before us; namely, whether a PRP may pursue an action for direct

recovery against another PRP. Rather, Key Tronic dealt with whether a PRP could

claim attorney's fees in a contribution action brought against another PRP. In that

context, it was appropriate for the Court to use the terms "private parties" and "PRPs"

together. More importantly, however, the language cited by Dico was used in

reference to the implicit right to seek contribution found in § 107, id. at 816, 818,

prior to SARA. Thus, we find no support for Dico's argument in the language of Key

Tronic. Conversely, there is overwhelming authority among the circuits to support

the Customer Group's argument that PRPs are limited to actions for contribution.

Accordingly, we hold Dico may not bring an action against the Customer Group for

direct recovery unless it can establish it falls within one of the enumerated defenses

set out in § 107(b).

Dico next argues it is "innocent" of any wrongdoing and is not subject to

CERCLA's prohibition against direct recovery actions between PRPs. The Customer
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Group argues that only PRPs who qualify for one of the enumerated statutory

defenses may bring an action for direct recovery against another PRP, and Dico fails

to qualify for any of the defenses.

CERCLA § 107(b), 42 U.S.C. § 9607(b) provides:

There shall be no liability under [CERCLA § 107(a)] for a person

otherwise liable who can establish by a preponderance of the evidence

that the release or threat of release of a hazardous substance and the

damages resulting therefrom were caused solely by - (1) an act of God;

(2) an act of war; (3) an act or omission of a third party other . . . than

one whose act or omission occurs in connection with a contractual

relationship, existing directly or indirectly, with the defendant . . . if the

defendant establishes . . . that (a) he exercised due care with respect to

the hazardous substance concerned . . . and (b) he took precautions

against foreseeable acts or omissions of any such third party . . . .

When one of the enumerated CERCLA defenses applies a PRP is deemed

innocent; and an action between an innocent party and another PRP is not between

two liable parties. See, e.g., Morrison Enter. v. McShares, Inc., 302 F.3d 1127, 1133

(10th Cir. 2002) ("[A] party that can show that it is entitled to one of the defenses

under § 9607(b) should be able to sue under § 9607(a); after all, such a party is not

a PRP for purposes of the statute."); accord Bedford Affiliates, 156 F.3d at 425; Axel

Johnson, Inc., 191 F.3d at 416.

Dico, however, does not contend it qualifies for any of the enumerated

defenses. Instead, it argues we should adopt a judicially created "innocent

landowner" exception recognized in a line of Seventh Circuit and various district

court cases. See NutraSweet Co. v. X-L Eng'g Co., 227 F.3d 776, 784 (7th Cir. 2000)

(noting an innocent landowner who did not contribute to the contamination could

bring a direct recovery action); Rumpke of Ind., Inc. v. Cummins Engine Co., 107

F.3d 1235, 1241-42 (7th Cir. 1997) (holding landowner who was not responsible for
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any of the waste entitled to sue under § 107); AM Int'l, Inc. v. Datacard Corp., DBS,

Inc., 106 F.3d 1342, 1347 (7th Cir. 1997) (same); Akzo Coatings, Inc., 30 F.3d at 764

(same); Soo Line R.R. v. Tang Indus., Inc., 998 F. Supp. 889, 894-95 (N.D. Ill. 1998)

(same); Laidlaw Waste Sys., Inc. v. Mallinckrodt, Inc., 925 F. Supp. 624, 630-31

(E.D. Mo. 1996) (same); Wolf, Inc. v. L. & W. Serv. Cent., Inc., No. 4: CV 96-3099,

1997 WL 141685, at *6-8 (D. Neb. Nov. 27, 1997) (holding landowner/plaintiff who

alleged it did nothing to contribute to contamination allowed to proceed with § 107

action).

Section 107(a) imposes liability on PRPs "[n]otwithstanding any other

provision or rule of law, and subject only to the defenses set forth in subsection (b)

of this section . . . ." (emphasis added). Thus, the plain language of the statute

militates against Dico's argument. Additionally, other circuits have held any

expansion of the list of defenses beyond those specifically delineated in the statute

would circumvent the underlying purpose of CERCLA. See Bedford Affiliates, 156

F.3d at 425 (declining to carve out a judicially created defense under CERCLA that

Congress itself chose not to create); Axel Johnson, 191 F.3d at 416 ("If an innocent

party exception [to § 107] is even possible . . . it would . . . seem prudent to limit its

applicability to those who can make out one of the defenses . . . § 107 itself

provides."); Morrison Enter., 302 F.3d at 1134 (holding the exception created by the

Seventh Circuit does not square with the underlying purposes of CERCLA).

We need not, however, decide whether to adopt the "innocent landowner"

exception because we have already concluded Dico is not an innocent landowner. In

a previous installment of this litigation, United States v. Dico, Inc., 266 F.3d 864, 875

(8th Cir. 2001), Dico appealed the district court's finding that Dico had contributed

to contamination at the Des Moines TCE Site. Id. at 868. On appeal, we held "[t]he

record, taken as a whole, shows evidence in support of each basis for the District

Court's conclusion that Dico released TCE on its property." Id. at 875. Dico's

allegations of innocence notwithstanding, we will not re-examine our prior holding
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absent compelling circumstances - none of which are present in this appeal. McCurry

v. Tesch, 824 F.2d 638, 640 (8th Cir. 1987).

III

The district court's grant of summary judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.