Opinion
97-CV-478C
June 19, 2002.
BUCHANAN INGERSOLL, P.C. (MARTHA M. HARRIS, ESQ., of Counsel), Buffalo, New York, for Plaintiff.
PHILLIPS, LYTLE, HITCHCOCK, BLAINE HUBER, LLP (KEVIN M. HOGAN, ESQ., of Counsel), Buffalo, New York, for Defendant.
INTRODUCTION
Presently before the court is a motion by plaintiff Buffalo Color Corporation ("BCC") for partial summary judgment seeking to hold defendant AlliedSignal (now known as Honeywell International, Inc. — "Honeywell") liable for its equitable share of response costs under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9613(f)(1). Item 41. Honeywell has also filed a motion for summary judgment seeking dismissal of all of BCC's remaining claims. Item 43.
The court heard oral argument on these motions on May 10, 2002. For the reasons that follow, BCC's motion for partial summary judgment is granted, and Honeywell's motion for summary judgment is denied.
BACKGROUND
BCC initially filed a complaint against Honeywell in June 1997. Item 1. In September 1999, BCC moved for partial summary judgment, seeking to hold Honeywell liable for its equitable share of costs incurred by BCC in responding to releases and threatened releases of hazardous substances at its manufacturing facility located at 100 Lee Street in Buffalo (the "Buffalo Dye Plant"). Item 11. Honeywell filed a motion for summary judgment at approximately the same time, seeking dismissal of this action in its entirety. Item 19.
In its Decision and Order dated March 26, 2001, this court held that Honeywell was a responsible party under CERCLA § 107(a)(2) and could be held liable for BCC's recoverable response costs under CERCLA § 113(f) if BCC could establish that it incurred clean-up costs consistent with the National Contingency Plan (NCP). Item 35, p. 12. The court further held that it was premature to determine that issue, given that there had been no discovery upon which to resolve such a fact-intensive question. Id., p. 13. The court denied BCC's motion for summary judgment on its CERCLA cause of action, with leave to renew after further proceedings. Id.
In September and October 2001, counsel for BCC and Honeywell signed a Stipulation Regarding Response Costs. Ex. A to Item 41. In the Stipulation, Honeywell agreed that the response costs identified in Schedule A, attached to the Stipulation, were incurred by BCC in connection with the RCRA Facility Investigation (RFI) and Corrective Measures Study (CMS) portions of the corrective action program implemented at the Buffalo Dye Plant. Item 41, Ex. A, p. 1. Honeywell conceded that those costs, representing total past response costs in this action as of June 30, 2001, "are reasonable and necessary costs incurred consistent with the National Contingency Plan pursuant to 42 U.S.C. § 9607(a)(4)(B) and 40 C.F.R. Part 300." Id., p. 2, ¶¶ 1, 4. Honeywell additionally acknowledged that "there is no longer any dispute between the parties regarding the amount and recoverability of BCC's RFI and CMS response costs . . .," as set forth in Schedule A. Item 41, ¶ 8.
Since the outstanding issue concerning liability from the March 26, 2001 Order, consistency with NCP response costs, has been stipulated to, BCC renewed its prior motion for partial summary judgment. BCC again requests an order declaring Honeywell liable for its equitable share of past and future response costs incurred by BCC in responding to releases/threatened releases at the Buffalo Dye Plant. Item 41, p. 4.
On this motion, Honeywell does not address BCC's argument, other than stating, in conclusory fashion, that it "is not liable to Buffalo Color under § 113 of CERCLA." Item 44, p. 4. Instead, it argues for the first time that summary judgment in its favor is warranted because Buffalo Color has neither incurred nor faced liability under CERCLA § 106 or § 107(a), and thus, BCC's contribution claim is barred as a matter of law. Id.
DISCUSSION
I. Summary Judgment Standard
Fed.R.Civ.P. 56(c) allows summary judgment to be rendered if "there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment is also appropriate where the action presents a question of statutory construction. See Heublein, Inc. v. U.S., 996 F.2d 1455, 1461 (2d Cir. 1993) ("Questions of statutory construction and legislative history present legal issues that may be resolved by summary judgment") (citation omitted).
When construing a statute, a court must adopt a construction that accords every word and provision some operative effect. Any construction rendering a part of the statute meaningless must be rejected. United States v. Nordic Village, Inc., 503 U.S. 30, 35-36 (1992). "The starting point in every case involving construction of a statute is the language itself. Accordingly, when confronted with a statute which is plain and unambiguous on its face, a court ordinarily does not look to legislative history as a guide to its meaning." United States v. Nelson, 277 F.3d 164, 186 (2d Cir. 2000) (quotations and citations omitted).
The issue, as framed by Honeywell, is whether CERCLA § 113(f)(1) provides the right by a potentially responsible party ("PRP") to seek CERCLA-based contribution against another PRP in the absence of any prior or pending CERCLA administrative order or cost recovery action under CERCLA §§ 106 or 107. Item 44, p. 5. The court will consider that issue prior to deciding BCC's motion.
II. Analysis
A. The Parties' Arguments
In its first memorandum of law, Item 44, Honeywell relied on the majority decision rendered by the Fifth Circuit in Aviall Services, Inc. v. Cooper Industries, Inc., 263 F.3d 134 (5th Cir. 2001), to support its position that BCC is precluded from seeking a CERCLA contribution claim. Aviall held that "a party can seek a § 113(f)(1) contribution claim only if there is a prior or pending federal § 106 [of CERCLA, 42 U.S.C. § 9606] or § 107(a) [of CERCLA, 52 U.S.C. § 9607(a)] action against it." Id. at 137 (emphasis added). CERCLA § 106 provides for federal administrative abatement orders and authorizes the Environmental Protection Agency (EPA) to bring an action to require responsible parties to clean up sites threatening the environment. CERCLA § 107(a) provides for cost recovery actions by government entities or innocent private parties against a PRP who is liable for the response costs listed under that section of the statute. In January 2002, Honeywell's counsel informed the court by letter that in December 2001, the Fifth Circuit granted a petition for rehearing the Aviall case en banc, "effectively vacat[ing] its prior decision." Item 46. Nevertheless, Honeywell still urged that the reasoning articulated in both the opinion and dissent would be useful to the court in its deliberation on this motion, id., and reasserts some pertinent points set forth in Aviall in its reply memorandum. Item 51.
CERCLA § 106, entitled "Abatement actions," provides in part that
[W]hen the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat. . . . The President may also, after notice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and welfare and the environment. . . .42 U.S.C. § 9606(a).
CERCLA § 107 is entitled "liability." Subsection (a), entitled "[c]overed persons; scope; recoverable costs and damages; interest rate; `comparable maturity' date," sets forth, inter alia, the four classes of covered persons, and the costs they shall be liable for under the statute. 42 U.S.C. § 9607(a).
In opposing Honeywell's motion, BCC adopts many of the arguments set forth in the Aviall dissent. BCC contends that CERCLA § 113(f)(1) clearly and unambiguously grants a right of contribution to any responsible party as defined by CERCLA § 107(a) who has paid or incurred response costs in excess of its equitable share, whether or not there is a prior or pending CERCLA civil action against it. Item 48, p. 5. BCC also argues that such a position is in accord with the majority of courts that have construed CERCLA § 113(f)(1).
Lastly, it argues that Honeywell's cross-motion is improper and should be denied.
B. CERCLA § 113(f)(1)
The court is called upon to construe CERCLA § 113(f)(1), which provides:
(1) Contribution
Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title.42 U.S.C. § 9613(f)(1) (emphasis added).
Honeywell follows the argument set forth in Aviall in support of its theory of statutory construction. First, in support of its textual analysis of the enabling provision, it interprets the "during or following" language as compelling the conclusion that a § 106 or § 107(a) action must be ongoing or completed before a § 113(f)(1) action is available, and interprets the auxiliary verb "may" as meaning "shall" or "must," Item 44, p. 8; second, it discusses the commonly adopted definition of "contribution" as supporting its position; and lastly, it asserts that the savings clause is only intended to preserve state law claims of contribution. Honeywell then relies on the statute's legislative history to deliver its coup de grace.
The clause, "[a]ny person may seek contribution . . . during or following any civil action under [§ 106] or under [§ 107]" is referred to as the enabling provision.
The last sentence of § 113(f)(1) is referred to as the general savings clause: "Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under [§ 106] or [§ 107]."
1. Textual analysis
a. The Enabling Provision: "May" and "During or Following"
Honeywell first argues that the language in the first sentence of § 113(f)(1), the "enabling provision," compels a finding that a § 106 or § 107(a) action against a PRP is a necessary prerequisite to bringing a contribution action, constituting "the only circumstances in which a claim for contribution under Section 113 of CERCLA may be brought." Item 44, pp. 8-9. In addition to citing Aviall, Honeywell also relies on Rumpke of Ind., Inc. v. Cummins Engine Co., 107 F.3d 1235, 1241 (7th Cir. 1997), to support its interpretation.
This court rejects Honeywell's construction, which derogates the plain meaning of the statute. Nowhere does the statute's language specify that actions for contribution are allowed "only" during or following CERCLA litigation. Rather than interpreting the statute, the Aviall court (and Honeywell) rewrite it through a rather shocking exercise of amending legislation through judicial fiat. This court instead embraces the Aviall dissent's view that the plain meaning of the enabling and savings clauses leads to the statute's only possible interpretation: that a PRP need not wait until a § 106 or § 107 action is filed against it in order to seek contribution from another PRP.
The enabling provision clarifies the time frame in which a PRP (which may — or may not — have an ongoing § 106 or § 107 action against it) is able to bring a contribution action. The word "may" in the statute, in the phrase a PRP "may seek contribution during or following" a federal CERCLA action, is clearly permissive: there is nothing in the text that suggests exclusivity. Read in conjunction with the savings clause, the statute could not possibly be clearer: a PRP seeking contribution from another PRP does not have to wait until a § 106(a) order or § 107(a) action is filed against it before bringing a CERCLA contribution action.
Honeywell adopts Aviall's construction that the verb "may" really means "shall' or "must." The Aviall court noted "when the word `may' is used as an enabling provision creating a cause of action (as it is here), it establishes an exclusive cause of action and means `shall' or `must.'" 263 F.3d at 138-39, citing Webster [sic] Third New International Dictionary, 1396 (3d ed. 1993). This interpretation, meant to buttress Honeywell's textual analysis, is consistent with Honeywell's contorted reading of the statute. However, this court declines to subscribe to such reasoning, noting that its dictionary, the Random House Unabridged Dictionary (2d ed. 1983), treats "may" as "may" and not as "shall."
Aviall quoted Webster's Third New International Dictionary 1396 (3d ed. 1993) for the proposition that "It has long been recognized that the word `may' can mean `shall' or `must' . . . esp[ecially] in deeds, contracts, and statutes." Aviall, 263 F.3d at 139, n. 4. Black's Law Dictionary, (6th ed. 1990) clarifies that particular interpretation of `may.' It defines `may' as "an auxiliary verb qualifying the meaning of another verb by expressing . . . possibility" and that it is "usually employed to imply permissive, optional, or discretional, and not mandatory action or conduct." It goes on to say, "Regardless of the instrument, however, whether statute, deed, contract or whatever, courts not infrequently construe `may' as `shall' or must' to the end that justice may not be the slave of grammar. However, as a general rule, the word `may' will not be treated as a word of command unless there is something in context or subject matter of act to indicate that it was used in such sense." Id., p. 979. Here, nothing in the context of the statute would lead to the conclusion that a command was meant, unless a court rewrites it.
Random House Unabridged Dictionary (2d ed. 1983) defines "may" as being "used to express possibility." Id., p. 1189.
b. The Savings Clause
Honeywell similarly distorts the general savings clause of § 113(f)(1) to comport with its view that the statute does not allow a claim for contribution without the "statutory prerequisites" and is only intended to preserve state law contribution claims. Honeywell argues, following Aviall, that its reading is justified because it would make "little sense that Congress would codify the `during or following' limitation, and then expressly invalidate it within the very same section." Aviall, 263 F.3d at 139. Honeywell concludes that otherwise, the savings clause would render the `during or following' sentence inoperative. To accord its reading an internal consistency, it inserts the word "state" into the savings clause ("nothing . . . shall diminish the right of any person to bring a [state] action for contribution . . .").
However, Honeywell's interpretation serves to render the savings clause inoperative.
As BCC points out, citing to the dissent in Aviall, "when Congress intends to preserve state law claims, it knows how to do so in explicit terms, and to insert language into a statute under the guise of construction constitutes an impermissible judicial foray into the legislative arena." Item 48, p. 7, quoting Aviall, 263 F.3d at 146 (Wiener, J. dissenting) ("Just as the `during or following language' confirms that the class of those who have the "right . . . to bring an action for contribution" is not limited to PRPs against whom a judgment already has been rendered, the savings clause clarifies that a PRP may seek contribution in the absence of suit so long as the prerequisites for a contribution claim have otherwise been met." Id. at 149). In concluding the section of his dissent concerning the savings clause, Judge Wiener opined, "In view of Congress's express intention to `confirm' the federal common law of contribution under CERCLA, I must disagree with the majority when it insists that we should read into § 113(f)(1) a limitation on the right to seek contribution that a straightforward reading of the plain language of the statute expressly rejects." Id. at 150.
In addition, as BCC observes, the construction accorded by Honeywell to the savings clause is contrary to the weight of judicial authority which holds that state law claims for restitution, indemnification, and/or contribution are preempted by CERCLA. See Bedford Affiliates v. Sills, 156 F.3d 415, 426 (2d Cir. 1998); Volunteers of America v. Heinrich, 90 F. Supp.2d 252 (W.D.N.Y. 2000).
Once again this court cites the Aviall dissent: "Just as the `during or following' language confirms that the class of those who have the `right . . . to bring an action for contribution' is not limited to PRPs against whom a judgment already has been rendered, the savings clause clarifies that a PRP may seek contribution in the absence of suit so long as the prerequisites for a contribution claim have otherwise been met." Id. at 149.
This court's view of the statute is supported by the great majority of circuit courts that have, directly or indirectly, considered the issue of CERCLA's contribution provision and how CERCLA § 113(f)(1) fits into the statutory scheme. See Crofton Ventures LP v. GH Partnership, 258 F.3d 292 (4th Cir. 2001) (allowing a § 113 suit by a PRP, although neither an administrative charge nor a § 106 or § 107 action had been brought against the plaintiff); In re Reading Co., 115 F.3d 1111, 1120 (3d Cir. 1997) ("the fact that § 113(f)(1) specifically permits an action for contribution to be brought `in the absence of a civil action under . . . section [107] reinforces our conclusion that Congress intended § 113 to be the sole means for seeking contribution — at whatever time in the cleanup process the party, seeking contribution, decides to pursue it"); Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187, 1191-92 (10th Cir. 1997) ("PRPs who have incurred cleanup costs [in ways other than a civil action under § 106 or § 107] are also covered by the language of § 113(f): `Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under [§§ 106 or 107] of this title").
A number of district courts have also permitted § 113 suits without the alleged prerequisite of § 106 or § 107 actions. See Ninth Ave. Remedial Group v. Allis Chalmers Corp., 974 F. Supp. 684 (N.D.Ind. 1997); Johnson County Airport Comm'n v. Parsonitt Co., Inc., 916 F. Supp. 1090 (D.Kan. 1996); Mathis v. Velsicol Chemical Corp., 786 F. Supp. 971 (N.D.Ga. 1991). In this circuit, Judge Skretny in Alloy Briquetting Corp. v. Niagara Vest, Inc., 756 F. Supp. 713 (W.D.N.Y. 1991), rejected an argument that a § 113(f)(1) contribution claim was not ripe if the plaintiff had not yet been held liable or settled its liability in a § 107 action. In addition, in Coastline Terminals of Connecticut, Inc. v. USX Corp., 156 F. Supp.2d 203 (D.Conn. 2001), the district court held that a § 113(f)(1) claim is not barred merely because the PRP had not been threatened with liability in the form of a § 106 or § 107 action. This court agrees with the Aviall dissent that in some of the above cases (i.e., Crofton Ventures), the issue whether a party may seek contribution under § 113(f)(1) in the absence of a CERCLA action against it was not a contested issue. 263 F.2d at 152. The dissent explains "that phenomenon only underscores the common understanding among courts and litigants alike that the plain language of § 113(f)(1) does not require a PRP to wait until it is haled into court to seek contribution under the statute." Id.
Other than Aviall, which has been vacated and is not binding on this court in any event, the decisions cited by Honeywell which support its position are weak at best. See Rumpke, Inc. v. Cummins Engine Co., 107 F.3d 1235, 1241 (7th Cir. 1997); Estes v. Scotsman Gr., Inc., 16 F. Supp.2d 983 (C.D.Ill. 1998). BCC has ably distinguished the cases relied upon by Honeywell and has pointed out why the reasoning to which they subscribe is not worthy of being followed by this court. See Item 48, pp. 21-23.
c. Contribution
Honeywell also argues that the meaning of "contribution" requires "a tortfeasor to first face judgment before it can seek contribution from other parties." Item 44, p. 9, citing Aviall, 263 F.3d at 138 (in turn citing Black's Law Dictionary 329 (6th ed. 1990)). This argument is meant to buttress Honeywell's restrictive interpretation of the statute.
This definition of `contribution' sought to be imposed by Honeywell and Aviall is unreasonably narrow and not in accord with its common law meaning. Neither The Restatement (Second) of Torts nor American Jurisprudence Second require "as a condition precedent, that a party be sued or adjudged liable before seeking contribution; rather, the right to seek contribution arises independently when one tort-feasor, acting under a legal duty, discharges more than his fair share of a liability shared by joint tort-feasors." Aviall, 263 F.3d 149 (Wiener, J., dissenting). The "during or following" language also embraces the more expansive Restatement view that a tort-feasor may seek contribution from a joint tort-feasor even though judgment has not yet been recovered.
Restatement (Second) of Torts § 886A (2d ed. 1979); 18 Am.Jur.2d Contribution § 9 (1985).
Honeywell's tortured interpretation of the statute, which inserts "only" in the first sentence and inserts "state" in the last sentence to change both the enabling provision to require a § 106 or § 107 action as a condition precedent to contribution, and change the savings clause to only preserve state law claims of contribution, is the more disturbing because it is contrary to CERCLA's broad reach and liberal application to "create strong incentives for responsible parties to perform cleanups of sites without waiting for the hammer of litigation to drop." Aviall, 263 F.3d at 155 (Wiener, J., dissenting).
At oral argument, counsel for BCC pointed out that Honeywell was arguing that the word "contribution" contained in the enabling provision was restricted to a federal right of contribution, but in the last sentence (the savings clause), the word signified a state right to contribution. He argued that nothing in the statutory language or legislative history supported such a creative reading of the statute. This position is buttressed by the "established canon of construction that similar language contained within the same section of a statute must be accorded a consistent meaning." Nat'l Credit Union Admin. v. First Nat'l Bank and Trust Co., 522 U.S. 479, 501 (1998).
2. Legislative History
Honeywell argues that the legislative history of § 113(f)(1) "strongly reinforces" its interpretation of the statute's "plain meaning." Item 44, p. 12. It recounts how the statute as originally codified contained no provision allowing a private party to sue other PRPs for contribution until the Superfund Amendments and Reauthorization Act of 1986. P.L. 990-499, 100 Stat. 1613. Citing Aviall's view of the statute's legislative history which accords with its own, Honeywell contends that Congress only intended to provide for a "limited right of contribution" under § 113(f)." Id., Aviall, 263 F.3d at 144. Aviall arrived at this conclusion by deducing that "[i]t seems unlikely that Congress enacted a contribution right broad enough to encompass [plaintiff's] situation where neither the federal government nor any private party has filed a CERCLA action against it, and the EPA has not designated Aviall's Facilities as contaminated sites." Id.
This is a circular argument, where the premise supports the conclusion which supports the premise. The citations provided by Honeywell, intended to shed light on the purported legislative intent to limit the statutory right of contribution, do no such thing. For example, Honeywell notes the "Explanation of Purpose and Intent" regarding § 113(f)(1) stated that a specific change made to the section by the Judiciary Committee "clarifies and emphasizes that persons who settle with EPA (and who are therefore not sued), as well as defendants in CERCLA actions, have a right to seek contribution from potentially responsible parties." 99 Cong. H. Debates 1985, 36445 (1985). This excerpt does not indicate the limitation to which Honeywell refers. Lastly, the dissent in Aviall ably dispatches both the majority's and Honeywell's reliance on legislative history to support its position, particularly by noting that the sections of the legislative history to which the majority cited referred to an abandoned version of the statute under consideration at the time, which Congress rejected in favor of a more permissive view, i.e., allowing contribution suits in the absence of a § 106 or § 107 action, which was embodied in the final legislation. 263 F.3d at 151-52.
Honeywell makes a number of additional arguments in its attempt to substantiate its reading of § 113(f)(1), which this court finds are without merit.
The court declines to adopt Honeywell's strained construction of § 113(f)(1) and holds that a contribution claim under § 113(f)(1) may go forward even if a § 106 or § 107 action against the plaintiff has not been filed. It thus denies Honeywell's motion for summary judgment.
C. BCC's Motion for Summary Judgment
As indicated supra, BCC renewed its motion for partial summary judgment, contending that the only remaining issue unresolved from its earlier summary judgment motion, whether costs incurred were consistent with the NCP, was resolved by the signing of the stipulation, Ex. A attached to Item 41. The court agrees. Honeywell has admitted that the response costs as identified on Schedules A and B, attached to the stipulation, are "reasonable and necessary costs incurred consistent with the National Contingency Plan." Id., ¶ 1. In its opposition to BCC's motion, Honeywell did not contest this conclusion. As a result, this court grants BCC's motion for partial summary judgment.
CONCLUSION
For the reasons set forth above, this court grants BCC's motion for partial summary judgment, Item 41, and denies Honeywell's motion for summary judgment. Item 43. Counsel shall meet with the court on Monday, July 15, 2002, at 3 p.m.
So ordered.