
USCA1 Opinion

	




          September 12, 1994                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-2253                       UNITED TECHNOLOGIES CORPORATION, ET AL.,                               Plaintiffs, Appellants,                                          v.                      BROWNING-FERRIS INDUSTRIES, INC., ET AL.,                                Defendants, Appellees.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion of  the  court issued  on  August 19,  1994  is          corrected as follows:               On page 4, last line   delete citation               On page  5, line 11    change "in March, 1986"  to "no later          than early 1987"               On page 5, lines 16, 17, 18   change sentence beginning with          "Here, . . . ." to "Here, the court entered the consent decree in          March of 1986 and remedial construction apparently started at the          Site within one year of that event."               On page 19   line 13   change "five" to "six"                 For copy of appendix, please contact Clerk's Office.                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-2253                       UNITED TECHNOLOGIES CORPORATION, ET AL.,                               Plaintiffs, Appellants,                                          v.                      BROWNING-FERRIS INDUSTRIES, INC., ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                              _________________________                                        Before                                Breyer,* Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                              _________________________               Peter Buscemi, with whom Howard  T. Weir, Thomas J. O'Brien,               _____________            _______________  _________________          Ellen B. Steen, Morgan,  Lewis & Bockius, Jeffrey A.  Thaler, and          ______________  ________________________  __________________          Berman & Simmons, P.A. were on brief, for appellants.          ______________________               Robert  L. Gulley,  with whom  Samuel B. Boxerman,  Sidley &               _________________              __________________   ________          Austin, John A. Ciraldo, and  Perkins, Thompson, Hinckley & Keddy          ______  _______________       ___________________________________          were on brief, for appellee Browning-Ferris Industries, Inc.               Arlyn  H.  Weeks and  Conley, Haley  &  O'Neil on  brief for               ________________      ________________________          appellee Central Maine Power Co.               Edward  E.  Shea, Clayton  A.  Prugh,  Elizabeth A.  Bryson,               ________________  __________________   ____________________          Windels, Marx, Davies & Ives, Nicholas M. Lanzilotta, and Colby &          ____________________________  ______________________      _______          Lanzilotta on brief for appellee Carleton Woolen Mills, Inc.          __________                              _________________________                                   August 19, 1994                              _________________________          _______________          *Chief Judge  Stephen Breyer heard  oral argument in  this matter          but did not  participate in the drafting  or the issuance of  the          panel's  opinion.   The remaining  two panelists  therefore issue          this opinion pursuant to 28 U.S.C.   46(d).                    SELYA,  Circuit Judge.    This appeal  demands that  we                    SELYA,  Circuit Judge.                            _____________          clarify  the  relationship  between  cost  recovery  actions  and          contribution  actions  under   the  Comprehensive   Environmental          Response, Compensation  and Liability Act (CERCLA),  42 U.S.C.             9601-9675  (1987), as  amended  by the  Superfund Amendments  and          Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499,    101 et                                                                         __          seq.,  100  Stat. 1613  (1986).   Having  completed our  task, we          ____          affirm the district court's entry of summary judgment terminating          appellants' action as time-barred.          I.  BACKGROUND          I.  BACKGROUND                    The essential facts are not in dispute.  In 1981, after          discovering  hazardous substance  contaminants  at a  landfill in          Winthrop, Maine  (the  Site),  the  United  States  Environmental          Protection Agency (EPA) placed the Site on  its national priority          list.    The  EPA and  Maine  thereafter  undertook  a concurrent          investigation  and  determined  that  Inmont  Corporation,  since          acquired by plaintiff-appellant  United Technologies  Corporation          (UTC),1  had conducted contamination  producing activities at the          Site from 1950 to 1975.                    In 1982,  the EPA notified  Inmont that it  was liable,          under  CERCLA, to  clean up  the Site.   Several years  of dilly-          dallying  eventually gave  way to  negotiations among  Inmont and                                        ____________________               1UTC acquired  Inmont in 1979 and  transferred its ownership          to  BASF Corporation  (a UTC  subsidiary) in  1985.   Inmont then          merged  into BASF.  UTC  and BASF brought  this suit jointly, and          both appear here as appellants.                                          4          certain  other potentially  responsible parties  (PRPs),2 on  one          hand, and  the appropriate  federal and  state officials,  on the          second  hand.   The  parties reached  a  tentative agreement  and          prepared  a  consent decree.   On  January  29, 1986,  the United          States filed  a  civil action  against  Inmont and  others  under          CERCLA,  with a view toward securing a judicial imprimatur on the          proposed decree.  The suit alleged that the named defendants were          jointly  and severally liable for the costs the United States had          incurred, and would continue to absorb, in responding to releases          and threatened releases at the Site.                    The district  court  promptly consolidated  EPA's  case          with a nearly  identical case  that Maine had  filed against  the          same  defendants; and, on March  23, 1986, the  court entered the          consent decree.  Pursuant thereto, appellants agreed to undertake          and complete corrective  work at  the Site in  accordance with  a          plan  for remedial action.   The cleanup proved  to be expensive:          appellants make the uncontradicted  claim that remedial work cost          in excess  of $13,000,000 to date,  and that work yet  to be done          likely will absorb an additional $20,000,000 or more.  Appellants          also  agreed to reimburse, and  have since paid,  the federal and          state  sovereigns  $475,000  for costs  previously  incurred with          respect to scouring the Site.                    On October 16, 1992, appellants brought suit in federal          district  court against  several defendants,  including Browning-                                        ____________________               2The other PRPs  were the Town of Winthrop,  Everett Savage,          and Glenda Savage.  None of them are involved in this appeal.                                          5          Ferris  Industries,  Inc.  (Browning).3     In  their  complaint,          appellants posited claims under both federal and state law.  They          alleged that the defendants  were wholly or partially responsible          for  contamination of the Site and sought three separate kinds of          relief,  namely, (1) recovery  of cleanup costs  paid directly by          them (hereinafter "first-instance costs"); (2) recovery of monies          paid  by them  to reimburse the  EPA and Maine  for cleanup costs          (hereinafter "reimbursed costs"); and (3) a declaration of rights          in respect to liability for future response costs.                    Browning moved for summary judgment, hypothesizing that          CERCLA's  statute  of  limitations  barred   appellants'  federal          claims,  and that the pendent state  claims should, therefore, be          dismissed for  lack  of  jurisdiction.    Appellants  voluntarily          dismissed their claims regarding the reimbursed costs (apparently          believing  such  claims  to constitute  time-barred  contribution          claims), but otherwise  opposed the motion.   A magistrate  judge          recommended  granting   brevis   disposition  with   respect   to                                  ______          appellants' remaining  claims.  The  district court agreed.   See                                                                        ___          1993 WL 66007 (D. Me. May 27, 1993).  This appeal followed.4                                        ____________________               3The other named defendants included  Carleton Woolen Mills,          Inc., Central  Maine Power  Company, Community Service  Telephone          Co.,  Progressive  Iron Works,  Inc.,  and  Quaker Lace  Company.          Early in the proceedings,  appellants voluntarily dismissed their          action against Quaker Lace.  The remaining defendants appear here          as appellees.               4When Browning sought  summary judgment,  all the  remaining          defendants followed suit.   They ultimately achieved an identical          result.  This proceeding  embraces the district court's  grant of          summary  judgment  in  favor of  all  defendants.    For ease  in          reference  we  treat the  appeal as  if  Browning alone  were the          appellee, but our resolution of it applies with full force to all                                          6          II.  ANALYSIS          II.  ANALYSIS                    CERCLA and SARA together  create two different kinds of          legal  actions by which  parties can  recoup some  or all  of the          costs associated with  cleanups:  cost  recovery actions, see  42                                                                    ___          U.S.C.   9607(a), and contribution actions, see id.   9613(f)(1).                                                      ___ ___          Cost  recovery  actions  are subject  to  a  six-year  statute of          limitations,  see id.    9613(g)(2),  while  contribution actions                        ___ ___          must be brought within half that time, see id.   9613(g)(3).5                                                 ___ ___                    In this case appellants' cause of action, no matter how          it is visualized,  accrued no later than early 1987.  Compare id.                                                                _______ ___           9613(g)(2)(B)  (providing  that  the  trigger date  for  a  cost          recovery  action is fixed by the  "initiation of physical on-site          construction of  the remedial  action")  with id.   9613(g)(3)(B)                                                        __          (providing  that the  accrual  period  for  contribution  actions          begins  when  a  "judicially approved  settlement"  is  entered).          Here, the court  entered the consent decree in March  of 1986 and          remedial  construction started at the Site in the same month that          the  court entered  the consent  decree, namely,  March of  1986.          Appellants  brought   suit  roughly  five   and  one-half   years          thereafter.   Thus,  the  sole question  presented  on appeal  is          whether  appellants' action is an action for cost recovery or one          for  contribution.   If  appellants' action  qualifies under  the          former  rubric, it is timely;  but, if it  is properly classified                                        ____________________          the other appellees.               5We  set out the text of the centrally relevant statutes, 42          U.S.C.    9607(a), 9613(f) & 9613(g), in an appendix hereto.                                          7          under the latter rubric, it comes too late.                    Because  the  issue  on  appeal turns  on  the  correct          interpretation of the relevant statutory  provisions, we exercise          de  novo review.  See United States  v. Gifford, 17 F.3d 462, 472          __  ____          ___ _____________     _______          (1st Cir. 1994) (holding that  questions of law engender  plenary          appellate review); Liberty Mut. Ins. Co. v. Commercial Union Ins.                             _____________________    _____________________          Co., 978 F.2d 750, 757 (1st Cir. 1992) (same).          ___                          A.  The Contours of Contribution.                          A.  The Contours of Contribution.                              ____________________________                    Four portions of the statute are of immediately obvious          relevance.  The only one of the four found in the original CERCLA          legislation  is  42 U.S.C.     9607(a)(4).   This  proviso  makes          enumerated parties  "liable for  . . .  all costs  of removal  or          remedial action  incurred by [government entities  and] any other          necessary  costs  of  response   incurred  by  any  other  person          consistent with  the national contingency plan."  The other three          provisions  originated  in SARA  and are  all codified  within 42          U.S.C.    9613.  Under 42  U.S.C.   9613(f)(1), "[a]ny person may          seek  contribution  from  any  other  person  who  is  liable  or          potentially  liable"  for  response  costs.    The  same  section          contains  two statutes  of  limitations.   One  provides that  an          action  for cost recovery must  be commenced within  six years of          the accrual date.6   Id.   9613(g)(2).   The other provides  that                               ___          "[n]o action for contribution for  any response costs or  damages          may be commenced more than 3 years after . . . the date of . .  .                                        ____________________               6This subsection speaks  in terms "of the costs  referred to          in [section 9607]."  42 U.S.C.   9613(g)(2).                                          8          entry of a  judicially approved settlement  with respect to  such          costs or damages."  Id.   9613(g)(3).                              ___                      It is  apodictic that our  first recourse must  be to          the statute's text and  structure.  See United States  v. O'Neil,                                              ___ _____________     ______          11 F.3d 292, 295 (1st Cir. 1993); United States v. Charles George                                            _____________    ______________          Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987).   Following this          ____________          path, it is evident that CERCLA differentiates between "action[s]          for  recovery of . .  . costs" and  "action[s] for contribution."          Compare 42 U.S.C.    9613(g)(2) with id.   9613(g)(3).   Although          _______                         ____ ___          Congress did not explicitly plot the boundary that divides  these          two types of actions, we are not  wholly without guidance.  Under          accepted canons  of construction, legal  terms used in  framing a          statute  are ordinarily presumed to  have been intended to convey          their customary legal meaning.  See Bradley v. United States, 410                                          ___ _______    _____________          U.S. 605, 609 (1973)  (holding that "the law uses  familiar legal          expressions in  their familiar legal sense")  (citation omitted);          MCA, Inc. v. Wilson, 677 F.2d 180, 186 (2d  Cir. 1981) (similar);          _________    ______          see also 2A Norman J. Singer, Sutherland Stat. Const.   47.30, at          ___ ____                      _______________________          262 (5th ed. 1992).  This precept has special force when, as now,          there  is no persuasive evidence  that Congress aspired  to use a          particular legal term in some unusual or unorthodox sense.                    This  canon measurably  assists our  effort to  ascribe          meaning to the word "contribution."   Contribution is a  standard          legal  term that  enjoys  a stable,  well-known  denotation.   It          refers  to a claim "by  and between jointly  and severally liable          parties  for an appropriate division  of the payment  one of them                                          9          has  been  compelled to  make."   Akzo  Coatings, Inc.  v. Aigner                                            ____________________     ______          Corp., ___ F.3d ___,  ___ (7th Cir. 1994)  [1994 U.S. App.  LEXIS          _____          17028  at  *5];  accord  Northwest Airlines,  Inc.  v.  Transport                           ______  _________________________      _________          Workers  Union, 451 U.S. 77,  87-88 (1981); In  re "Agent Orange"          ______________                              _____________________          Prod. Liab.  Litig., 818 F.2d 204,  207 (2d Cir. 1987);  see also          ___________________                                      ___ ____          Black's Law Dictionary 399  (6th ed. 1990) (defining contribution          ______________________          as  a right  "of one  who has  discharged  a common  liability to          recover  of another  also liable,  the  aliquot portion  which he          ought  to pay  or  bear").7   Accordingly,  absent evidence  that          Congress  had a different, more exotic definition in mind, we are          inclined,  in  parsing  42  U.S.C.     9613,  to  give  the  word          "contribution" its generally accepted legal meaning.                    The relevant external  considerations counsel in  favor          of  this usage and, thus, solidify our inclination.  Perhaps most          important,   ascribing  a   traditional  meaning   to  the   term          "contribution"  fits both  CERCLA's language  and its  structure.          Under  such a reading, the two statutes of limitations complement          each other and together  exhaust the types of actions  that might          be brought to  recoup response costs:   the shorter  prescriptive          period,  contained in  42  U.S.C.    9613(g)(3), governs  actions          brought  by liable  parties  during or  following a  civil action                                        ____________________               7Most  states  have  adopted  contribution  provisions  that          operate along  substantially similar lexicographical lines.   See                                                                        ___          Northwest Airlines,  451 U.S. at 87  n.17 (collecting exemplars).          __________________          This is  an important datum because  CERCLA's legislative history          evinces an intent that  courts establish the scope and  nature of          CERCLA liability  consistent  with evolving  principles  of  law.          See, e.g.,  126  Cong.  Rec.  30,932 (1980)  (statement  of  Sen.          ___  ____          Randolph); 126  Cong.  Rec. 31,  965  (1980) (statement  of  Rep.          Florio).                                          10          under 42  U.S.C.     9606-9607(a),  while the  longer statute  of          limitations,  contained  in  42 U.S.C.     9613(g)(2),  addresses          actions brought by innocent parties that have undertaken cleanups          (say, the federal, state or local government).8                    This reading fits especially  well with the language of          42 U.S.C.   9613(g)(2),  which concerns actions for "recovery  of          the costs."  That  phrase, reiterative of the  subsection heading          "Actions for recovery  of costs," suggests full recovery;  and it          is  sensible  to  assume  that Congress  intended  only  innocent          parties    not  parties  who  were  themselves  liable     to  be          permitted  to  recoup  the  whole  of  their  expenditures.    By          contrast, 42  U.S.C.    9613(g)(3) allows a  "non-innocent" party          (i.e., a party who  himself is liable) only to seek recoupment of           ____          that portion of his expenditures which exceeds his pro rata share                                                             ___ ____          of the overall liability    in other words, to  seek contribution                                        ____________________               8It is possible that, although falling outside the statutory          parameters  established  for  an  express  cause  of  action  for          contribution, see 42 U.S.C.   9613(f)(1), a PRP who spontaneously                        ___          initiates a  cleanup without governmental prodding  might be able          to  pursue an implied right  of action for  contribution under 42          U.S.C.   9607(c).  See Key Tronic Corp. v. United  States, 114 S.                             ___ ________________    ______________          Ct.  1960, 1966  (1994)  (explaining that  CERCLA now  "expressly          authorizes a cause  of action  for contribution in  [  9613]  and          impliedly authorizes a similar and somewhat overlapping remedy in          [  9607]"); cf.  In re Hemingway Transp., Inc., 993 F.2d 915, 931                      __   _____________________________          (1st Cir.) (stating  in dictum  that "in the  event the  private-          action plaintiff itself  is potentially `liable'  to the EPA  for          response costs, and thus is akin to a joint `tortfeasor,' section          9607(a)(4)(B)  serves  as  the   pre-enforcement  analog  to  the                                           ___ ___________          `impleader'   contribution   action   permitted   under   section          9613(f)"), cert. denied, 114  S. Ct. 303 (1993).  If, indeed, the                     _____ ______          law allows such an implied right of action for contribution to be          maintained   a matter on which we take no view   it is unclear to          us whether such a cause of  action would be subject to the three-          year  or the six-year  prescriptive period.   Because this appeal          does not pose that question, we leave it for another day.                                          11          rather  than complete  indemnity.   The  statutory language  thus          suggests that cost recovery and contribution actions are distinct          and do not overlap.                    The  pre-SARA  caselaw and  SARA's  legislative history          dovetail  to furnish  strong support  for imputing  a traditional          meaning  to the term "contribution" as  it appears in 42 U.S.C.            9613.    As  originally  written,  CERCLA gave  the  EPA  several          remedial  choices.    For  example,  it  could  (1)  clean  up  a          contaminated site and then sue to recover its response costs, see                                                                        ___          id.    9607(a)(4), (2)  endeavor to  compel a  PRP  to perform  a          ___          cleanup  by   administrative  order,   or,  if  the   PRP  proved          recalcitrant,  by obtaining a judicial decree, see id.   9606, or                                                         ___ ___          (3)  negotiate a settlement, see id.    9622.  Despite this array                                       ___ ___          of weapons, however, CERCLA was   and still is   silent as to the          extent of  a particular PRP's  liability.  Judges  abhor vacuums;          and  the courts filled this lacuna in the statute, reading CERCLA          as  imposing joint  and  several liability  on  the part  of  all          responsible  parties  to  reimburse  the  government for  cleanup          expenses and to  pay response costs.  See, e.g.,  In re Hemingway                                                ___  ____   _______________          Transp., Inc., 993 F.2d 915, 921 (1st Cir.), cert. denied, 114 S.          _____________                                _____ ______          Ct. 303 (1993);  O'Neil v. Picillo, 883  F.2d 176, 178  (1st Cir.                           ______    _______          1989), cert. denied, 493 U.S. 1071 (1990).                 _____ ______                    Notwithstanding the  presumed  existence of  joint  and          several  liability, there  was much  uncertainty prior  to SARA's          passage  as  to whether  a responsible  party could  recover from          other PRPs the portion of its cleanup costs that exceeded its pro                                                                        ___                                          12          rata share.   See, e.g., United States v.  New Castle County, 642          ____          ___  ____  _____________     _________________          F.  Supp.  1258,  1262   (D.  Del.  1986)  (noting  uncertainty).          Although most courts ultimately ruled that section 9607 conferred          an implied  right of action  for contribution in  favor of a  PRP          that paid more  than its  ratable share, see,  e.g., O'Neil,  883                                                   ___   ____  ______          F.2d  at 179; Mardan Corp. v.  C.G.C. Music, Ltd., 804 F.2d 1454,                        ____________     __________________          1457  n.3 (9th  Cir.  1986), the  situation  was clouded  by  the          Court's refusal to imply rights of action under other statutes in          the absence  of an  express direction  from Congress,  see, e.g.,                                                                 ___  ____          Texas  Indus., Inc.  v. Radcliff Materials,  Inc., 451  U.S. 630,          ___________________     _________________________          639-40   (1981)  (declining   to  imply   right  of   action  for          contribution under  the antitrust laws);  Northwest Airlines, 451                                                    __________________          U.S. at  91-95 (finding  no implied  right to contribution  under          either the Equal Pay Act of 1963 or Title VII of the Civil Rights          Act of 1964).                    This background  brings the origins of  SARA into sharp          focus.    A  principal  goal  of  the  new  section 9613  was  to          "clarif[y] and confirm[] the  right of a person held  jointly and          severally  liable under  CERCLA to  seek contribution  from other          potentially liable parties, when the  person believes that it has          assumed a share  of the cleanup or cost that  may be greater than          its  equitable share under the  circumstances."  S.  Rep. No. 11,          99th Cong.,  1st  Sess. 44  (1985),  reprinted in  2  Legislative                                               _________ __     ___________          History of  the Superfund  Amendments and Reauthorization  Act of          _________________________________________________________________          1986,  636, Sp. Print 101-120 (101st Cong., 2d Sess.) (1990); see          ____                                                          ___          also  131 Cong. Rec.  24,450 (1985) (statement  of Sen. Stafford)          ____                                          13          (predicting that section 9613 would "remove[] any doubt as to the          right of  contribution").  Of paramount  significance for present          purposes is that Congress, in enacting SARA, sought to codify the          case law, see O'Neil, 883 F.2d at 179    and the cases decided to                    ___ ______          that   point,  without   exception,   employed  the   legal  term          "contribution" in its traditional sense to cover an action by one          liable  party  against another  liable  party.   See,  e.g., Bulk                                                           ___   ____  ____          Distrib.  Ctrs., Inc. v. Monsanto Co., 589 F. Supp. 1437, 1442-44          _____________________    ____________          (S.D. Fla. 1984); Jones v. Inmont Corp., 584 F. Supp. 1425, 1428-                            _____    ____________          29 (S. D. Ohio 1984).                    Taken  in the aggregate,  this impressive collection of          signposts    canons of  construction, other CERCLA  language, the          statute's structure, the  state of the case law antedating SARA's          passage,  and SARA's legislative  history    point squarely  to a          conclusion  that Congress  used  the word  "contribution" in  the          conventional sense, and  fully intended courts  to give the  word          its  customary meaning.    The authorities  so  hold.   See  Akzo                                                                  ___  ____          Coatings,  ___ F.3d  at ___ [1994  U.S. App. LEXIS  17028 at *7];          ________          Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir. 1989);          _____________    ____________          Avnet, Inc.  v. Allied-Signal, Inc.,  825 F. Supp.  1132, 1137-38          ___________     ___________________          (D.R.I. 1992); Transtech  Indus., Inc. v. A & Z Septic Clean, 798                         _______________________    __________________          F. Supp. 1079, 1086  (D.N.J. 1992), appeal dism'd, 5 F.3d  51 (3d                                              ______ ______          Cir. 1993), cert. denied,  114 S. Ct.  2692 (1994); see also  Key                      _____ ______                            ___ ____  ___          Tronic  Corp. v. United States,  114 S. Ct.  1960, 1965-66 (1994)          _____________    _____________          (observing  that section  9613(f)  expressly created  a cause  of          action permitting  a responsible party to  seek contribution from                                          14          other PRPs).                    Applying this  legal regime to  the facts at  hand, and          bearing in mind that appellants are by their own admission liable          parties, their claim  against Browning must  be classified as  an          action for contribution.  Hence,  unless the claim can  otherwise          be saved,  it will fall prey to the three-year bar of 42 U.S.C.            9613(g)(3).                             B.  The Statutory Interface.                             B.  The Statutory Interface.                                 _______________________                    Appellants   argue    that,   notwithstanding   section          9613(f)(3), the  broad, unqualified  language to the  effect that          responsible parties  shall be  liable to  "any other  person," 42          U.S.C.   9607(a)(4),  provides  an  alternative  avenue  for  the          maintenance of their suit.   If this is  so, appellants add,  the          six-year  statute  of  limitations found  in  section 9613(g)(2),          pertaining to actions for  "recovery of the costs referred  to in          [ ] 9607" must govern in this instance.                    At face  value, this expansive reading  of section 9607          is  untenable; carried  to its  logical extreme,  such a  reading          would  completely swallow section 9613(g)(3)'s three-year statute          of limitations  associated with actions for  contribution.  Since          courts must strive to give effect to each subsection contained in          a statute, indeed,  to give effect to  each word and phrase,  see                                                                        ___          United  States v.  Nordic Village,  Inc., 112  S. Ct.  1011, 1015          ______________     _____________________          (1992);  United States  v. Ven-Fuel,  Inc., 758 F.2d  741, 751-52                   _____________     _______________          (1st  Cir. 1985), we refuse  to follow a  course that ineluctably          produces judicial nullification of an entire SARA subsection.                                          15                    Recognizing this looming  obstacle, appellants  attempt          to skirt it by  lowering their sights and, thus,  preserving some          semblance of utility for 42  U.S.C.   9613(g)(3).  In this  vein,          they focus  on the phrase "incurred  by," as used in  42 U.S.C.            9607(a),  and asseverate,  based on  this language,  that section          9607(a) only covers actions to recoup cleanup costs directly paid          for  (i.e.,  "incurred") by  a  responsible party  (what  we have                ____          termed  first-instance  costs,   see  supra  p.  4).     If  this                                           ___  _____          construction were adopted, then an  action for recoupment of sums          paid  by a responsible party to a government agency to compensate          it,  pursuant to  a  settlement or  judgment,  for the  funds  it          expended  in cleaning up a  site (what we  have termed reimbursed          costs, see supra p.  4), would lie under section 9613(f), but not                 ___ _____          under section  9607(a).   Hence, section 9613(g)(3)  would retain          some  measure of vitality, for  an action by  a responsible party          against  other  PRPs to  recover that  portion of  the reimbursed          costs paid  by the former in  excess of its pro  rata share would                                                      ___  ____          constitute  a  contribution  claim,  subject  to  the  three-year          prescriptive period.9                    We are not persuaded by this sleight of hand.   For one          thing,  appellants' reading  depends on  excerpting  phrases from          section  9607(a) without  due  regard for  the statute's  overall                                        ____________________               9As  an  example,  appellants  suggest that  an  attempt  to          recover some part of the $475,000 payment they made to compensate          the  EPA and Maine for the latters' cleanup expenditures would be          subject to the three-year limitations period, while an attempt to          recover a  portion of the  response costs  ($13,000,000 to  date)          paid  directly  by  appellants  could be  brought  under  section          9607(a) and come within the six-year limitations period.                                          16          content.  The full text of the relevant subsection, reproduced in          the appendix infra, makes selected  parties liable for "any other                       _____          necessary  costs of response incurred by any other person."  This          unqualifiedly   broad   language  comfortably   accommodates  all          response costs  incurred  by a  private  party, not  just  first-          instance costs.   In  a nutshell, accepting  appellants' position          would  require  us to  read section  9607's language  ("any other          necessary  costs")  as  containing  an   implicit  qualification:          "except for monies paid to reimburse government entities' cleanup          costs."   There  is simply  no rhyme  or reason for  reading that          condition into what appears  on its face to be  a straightforward          statutory directive.  See, e.g., CIA v. Sims, 471 U.S. 159,  169-                                ___  ____  ___    ____          70  (1985)   (refusing  to   read  limitations  into   broad  and          unconditional  statutory language).   Under  the reading  that we          adopt, by contrast, the unqualified language "any other necessary          costs"   remains  as   Congress  wrote   it,  that   is,  without          qualification.10  We think that this reading is preferable.                    For another thing, appellants' tracing of the statutory          interface is wholly dependent on an unusually cramped reading  of          the  term "contribution."    Under appellants'  theory, the  term          refers only to reimbursed costs.  This artificial circumscription          entirely  omits  from the  sweep of  section  9613 what  might be          called "traditional" contribution actions.   We know of no  other          court  that  has  given  such  an  odd  definition  to  the  term                                        ____________________               10As  discussed  above,  see  supra  p.  11,  42   U.S.C.                                           ___  _____          9613(f)(1)   explicitly  confirms   the   cause  of   action  for          contribution that is implicit in the language of   9607(a).                                          17          "contribution" in this    or any other    context; and, though we          recognize that  we are not bound  to interpret the word  as it is          defined  by state law, see 42 U.S.C.   9613(f)(1) (providing that                                 ___          claims for contribution  "shall be governed by Federal law"), the          responsibility  to develop federal common law is not a license to          override  policy choices  made  by  the  Congress  or  to  create          newfangled definitions for no better reason than that they suit a          party's convenience or strike a judge's fancy.  The meaning to be          attributed to terms  governed by  federal law must,  at the  very          least, comport  with the  statutory  scheme in  which such  terms          appear,   and,   wherever   possible,    effectuate   discernible          congressional  intent.   Put  bluntly, a  court cannot  rewrite a          statute  by  the simple  expedient of  calling  a camel  a horse,          overlooking obvious humps.                    Appellants'   suggested   interpretation   fails   this          commonsense test on two grounds.   First, 42 U.S.C.   9613 itself          appears   to  reject   any  distinction   for  the   purposes  of          contribution between  first-instance costs and  reimbursed costs.          After all,  subsection 9613(f)(3)(B)  authorizes a party  to seek          contribution "for some or all of the response action or  for some          or all of the costs of such action . . ."  The simple  reading of          this subsection  is that  the initial  phrase refers to  expenses          incurred in the course of a liable party's direction of a  site's          cleanup  while  the  second  phrase refers  to  reimbursement  of          cleanup costs incurred under the government's hegemony.                    The legislative history confirms this explanation.   In                                          18          formulating SARA, the Senate  Committee on Environment and Public          Works viewed what is now section 9613(f) as intended to permit an          action  for  contribution  when  a  party  believed  that it  had          "assumed a share of the cleanup or cost that may  be greater than          its equitable share."  S. Rep. No. 11, supra.  By like token, the                                                 _____          House Committee  on Energy and Commerce  stated that contribution          could be had under section 9613(f) by parties "who settle for all          or part of a cleanup or its costs . . ."  H.R. Rep. No. 253,  pt.          1, 99th Cong., 2d Sess. 80 (1985), reprinted in 1986 U.S.C.C.A.N.                                             _________ __          2835, 2862.   These statements show beyond  serious question that          the  drafters intended  contribution,  as that  term  is used  in          section  9613, to  cover  parties' disproportionate  payments  of          first-instance  costs  as   well  as  parties'   disproportionate          payments of reimbursed costs.                    Second,   appellants'   construction  emasculates   the          contribution   protection   component   of  CERCLA's   settlement          framework.   CERCLA seeks to provide EPA with the necessary tools          to  achieve  prompt  cleanups.   See  United  States  v.  Cannons                                           ___  ______________      _______          Engineering Corp., 899 F.2d 79, 90-91  (1st Cir. 1990).  One such          _________________          tool is the ability to  foster incentives for timely settlements.          See id.   To  this end,  42 U.S.C.    9613(f)(2) provides  that a          ___ ___          party  who settles with the  government "shall not  be liable for          claims  for  contribution  regarding  matters  addressed  in  the          settlement."   Because only the amount of the settlement, not the          pro rata share attributable to the  settling party, is subtracted          ___ ____          from the aggregate liability of the nonsettling parties, see id.,                                                                   ___ ___                                          19          section 9613(f)(2)  envisions that  nonsettling parties  may bear          disproportionate liability.   This paradigm is  not a scrivener's          accident.  It "was designed to encourage settlements  and provide          PRPs a measure  of finality  in return for  their willingness  to          settle."  Cannons Engineering, 899 F.2d at 92; see also H.R. Rep.                    ___________________                  ___ ____          No. 253, supra, 1986 U.S.C.C.A.N. at 2862.                   _____                    This  mechanism for  encouraging  settlement  would  be          gutted  were courts to share appellants' view of the contribution          universe, for subsection 9613(f)(2) then would afford very little          protection.    Although the  subsection  still  would  prevent  a          settlor  from being  sued by  another responsible  party claiming          that the first settlor  paid less than  its ratable share of  the                                                                    _______          government's expenses (what  we have termed  "reimbursed costs"),          _____________________          the  statutory shield would not  extend beyond that  point.  Most          disturbingly, if  a party's  direct, first-instance  payments are          not  grist for  the contribution  mill, but,  instead, are  to be          treated  as recovery costs within the purview of section 9607(a),          a nonsettling or later-settling PRP would be entitled to bring an          action against a  responsible party who  settled at the  earliest          practicable moment, but paid  less than his ratable share  of the          aggregate first-instance payments.   Exposing early settlors  who          make first-instance  payments to  later contribution  actions not          only would create a needless asymmetry in the treatment of first-          instance  costs as  opposed to  reimbursed costs, but  also would          greatly  diminish  the  incentive  for  parties  to  reach  early          settlements with  the  government, thereby  thwarting  Congress's                                          20          discernible  intent.11   This  result  makes  little sense,  and,          therefore,  we reject  appellants' tortured  construction of  the          statutory language.          III.  CONCLUSION          III.  CONCLUSION                    The  word "contribution"  for purposes  of 42  U.S.C.            9613(f)  should  be  given its  plain  meaning.    Adapted to  an          environmental case, it refers to an action by a responsible party          to recover  from another  responsible party that  portion of  its          costs that are  in excess of its pro rata  share of the aggregate                                           ___ ____          response   costs   (including  both   first-instance   costs  and          reimbursed costs).  Applying  this definition, the instant action          clearly  qualifies as  an action  for contribution  under section          9613(f)(1).      And  because   CERCLA's   text  indicates   that          contribution  and   cost  recovery  actions  are  distinct,  non-          overlapping  anodynes,12 the  action had  to be  commenced within          three years of its accrual.  See 42 U.S.C.   9163(g)(3).                                       ___                    We need go no further.  Appellants did not deign to sue          until  some six  and one-half  years after  entry of  the consent                                        ____________________               11It  bears mention  that  CERCLA's contribution  protection          provisions also would be undermined if cost recovery actions were          deemed to be overlapping with contribution actions.               12Envisioning contribution and cost recovery actions as non-          overlapping is  perfectly  consistent  with  the  Court's  recent          determination that  42 U.S.C.    9613 and 9707(a) create "similar          and somewhat overlapping" actions  for contribution.  Key Tronic,                                                                __________          114  S. Ct.  at 1966.   The Key  Tronic Court  was discussing two                                      ___________          different species of contribution  actions and expressed no views          anent  the  relation  between  contribution  and  cost   recovery          actions.                                          21          decree.  Their suit is, therefore, time-barred.13           Affirmed.          Affirmed.          ________                                        ____________________               13The court below  reached the same result based on somewhat          different  reasoning.     While  its  rationale   strikes  us  as          problematic, we see  little point  in tilting at  windmills.   An          appellate court is  not chained to  the lower court's  reasoning,          but may affirm the judgment below on any independently sufficient          basis made  manifest by the  record.   See Garside v.  Osco Drug,                                                 ___ _______     __________          Inc.,  895 F.2d  46, 49  (1st Cir.  1990); Polyplastics,  Inc. v.          ____                                       ___________________          Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir. 1987).  Thus, we          ________________          endorse  the result reached  below solely for  the reasons stated          herein.                                          22
