                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                       PUBLISH                        AUG 14 1997

                    UNITED STATES COURT OF APPEALS               PATRICK FISHER
                                                                           Clerk
                           FOR THE TENTH CIRCUIT
                      _________________________________

SUN COMPANY, INC. (R&M), a
Delaware corporation; TEXACO, INC., a
Delaware corporation,

            Plaintiffs - Appellants,

      v.

BROWNING-FERRIS, INC., a Delaware
corporation; ARK WRECKING
COMPANY OF OKLAHOMA, INC.;
HOUSING AUTHORITY FOR THE
CITY OF TULSA; PEDRICK LABS;
JOHN DOE d/b/a Pedrick Labs; ART
WEEDIN; BEVERAGE PRODUCTS                        No. 96-5222
CORP.; COWEN CONSTRUCTION,
INC.; NATIONAL TANK, CO.; PEEVY
CONSTRUCTION CO. INC.; MONTE
SHIPLEY; SUN CHEMICAL
CORPORATION; OZARK MAHONING
COMPANY; THE CITY OF SAND
SPRINGS, OKLAHOMA; ATLANTIC
RICHFIELD COMPANY; PUBLIC
SERVICE COMPANY OF
OKLAHOMA; BANCOFF OIL
COMPANY; BORG INDUSTRIAL
GROUP INC., d/b/a American Container
Services; CONSOLIDATED CLEANING
SERVICE CO. INC.; CHARLES
FORHAN, d/b/a D&W Exterminating;
OIL CAPITAL TRASH SERVICES,
INC.; STEVE RICHEY, d/b/a Richey
Refuse Service; ESTATE OF JOHN D.
SHIPLEY, deceased; SHIPLEY REFUSE;
ROBERT E. SPARKS, d/b/a Tulsa
Industrial Services; UNION CARBIDE
CORP.; WASTE MANAGEMENT OF
OKLAHOMA, INC.,

           Defendants - Appellees,

     and

BANK IV OKLAHOMA, N.A.; STAN
DOYLE; FLEMINGS ROOFING AND
SHEET METAL COMPANY; GRANT
GILL, d/b/a Gill Sanitation;
INSULATION SERVICES, INC.; WRG
CONSTRUCTION COMPANY, INC.;
W.R. GRIMSHAW, d/b/a WRG
Construction; TULSA COUNTY PUBLIC
FACILITIES AUTHORITY; JAMES P.
EVATT; F&G EXCAVATION; JOHN
DOE, d/b/a F&G Excavation; NELLIE
FARRIS; FIRST TOWER
CONSTRUCTION; JOHN DOE, d/b/a
First Tower Construction; MARVIN R.
HALL; SM ROOF; JOHN DOE, d/b/a SM
Roof; ESTATE OF ROSS SCOGGINS,
SR., deceased; TANDY INDUSTRIES,
INC.; W & D BUILDING; JOHN DOE,
d/b/a W & D Building; WADE TRASH;
JOHN DOE, d/b/a Wade Trash;
COMPASS INDUSTRIES, INC.;
ESTATE OF JACK DYER, deceased;
ROY L. FARRIS; NOLAND
CONSTRUCTION CO.; JOHN DOE,
d/b/a Noland Construction Co.;
MANNON TRUCKING; JOHN DOE,
d/b/a Mannon Trucking; MOBILE
WASTE CONTROLS; JOHN DOE,
d/b/a Mobile Waste Controls; TULSA
TANK CLEANING; JOHN DOE,
d/b/a Tulsa Tank Cleaning;
APARTMENT CONTAINER SERVICE,
INC.; CARNES BROTHERS
CONSTRUCTION COMPANY; CRAIN
DISPLAYS & EXHIBITS, INC.; DOW
CHEMICAL COMPANY, d/b/a Dow
Industrial Service; EMPIRE ROOFING &
INSULATION COMPANY; TOM
FARRIS, d/b/a Gene's Septic Tank
Service; ODEAN GARRISON;
LANGSTON CONTRACTORS, INC.;
PETROLEUM CONTRACTORS
CORPORATION; VACUUM AND
PRESSURE TANK TRUCK SERVICES,
INC.; GLENN E. WYNN, JR.; ANCHOR
PAINT MFG. CO.; AMRON, INC.;
TULSA CONSTRUCTION &
MANAGEMENT, INC.; PET CARE
CEMETARY; JOHN DOE, d/b/a Pet Care
Cemetary; J. B. STALLINGS, d/b/a
Stallings Construction Company;
BRIERLY PLUMBING
TECHNOLOGIES; ROTO-ROOTER
SEWER SERVICE; O.K. TANK
TRUCKS, INC.; AMERICAN SEPTIC
TANK; JOHN W. DIFFEE,
deceased, d/b/a Diffee Trash Services;
WALTER C. DEPPE, deceased;
AMERON, INC., a California
Corporation.

            Defendants.


                    _________________________________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE NORTHERN DISTRICT OF OKLAHOMA
                         (D.C. No. CIV-94-820-K)
                   _________________________________
                         _________________________________

John H. Tucker, Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, Oklahoma (Robert
P. Redemann and Michael F. Smith with him on the brief), for Plaintiffs -Appellants.

William C. Anderson, Doerner, Saunders, Daniel & Anderson, Tulsa, Oklahoma (Russell
W. Kroll with him on the brief), for Defendants -Appellees.
                       _________________________________

Before KELLY, MCWILLIAMS, and HENRY, Circuit Judges.
                  _________________________________

KELLY, Circuit Judge.
                         _________________________________


       For the third time in as many years, we are faced with the task of further defining

and clarifying the relationship between §§ 107 and 113 of the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.

§§ 9607 and 9313. See United States v. Colorado & Eastern R.R., 50 F.3d 1530 (10th

Cir. 1995); Bancamerica Commercial Corp. v. Mosher Steel of Kansas, 100 F.3d 792

(10th Cir.), as amended, 103 F.3d 80 (1996). Plaintiffs Sun Company and Texaco

brought this action under both §§ 107 and 113 for costs expended in cleaning up a

hazardous waste site. The district court granted partial summary judgment in favor of

Defendants. The court held that as a matter of law Plaintiffs were not permitted to bring a

cause of action under § 107, and that the limitations period for Plaintiffs’ contribution

claims under § 113 began running on the date they paid more than their fair share of the

remediation costs. With this as the accrual date, the bulk of Plaintiffs’ contribution


                                              4
claims were time-barred. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm in

part and reverse in part.



                                        Background

       The operative facts are not in dispute. An abandoned limestone quarry on the

south bank of the Arkansas River in Tulsa County, Oklahoma was operated as a landfill

from 1972 to 1976. During this time, hazardous materials were brought to the site, and

eventually began to seep into the soil, surface water, and ground water near the site. In

September 1984, the EPA placed the site on the National Priority List. 40 C.F.R. Part

300, App. B. Three years later the EPA issued a Record of Decision, which selected a

remediation for the site consistent with the National Contingency Plan. 42 U.S.C. § 9605.

       The EPA identified Plaintiffs, as well as several other parties, as Potentially

Responsible Parties (PRPs) who had contributed to the waste at the site. After attempts to

negotiate a consent decree were unsuccessful, the EPA issued a Unilateral Administrative

Order, pursuant to § 106 of CERCLA, compelling Plaintiffs to pay the costs of

remediation for the site. 42 U.S.C. § 9606. Plaintiffs agreed to perform the remediation

in compliance with the administrative order and the Record of Decision. Remediation

activities began in January 1990, and were completed on or by August 29, 1991.

Plaintiffs incurred $6.2 million in cleanup costs.




                                              5
       Plaintiffs were able to identify other parties which they believed had also

contributed hazardous wastes to the site, and brought this action against them on August

29, 1994, asserting a cost recovery action under CERCLA § 107 and a contribution action

under CERCLA § 113. The district court granted Defendants’ motion for summary

judgment on the § 107 action, holding that PRP’s such as Plaintiffs were not allowed to

bring a cost recovery action under § 107. Citing Colorado & Eastern, 50 F.3d at 1536, the

court held that regardless of the label used, the action was for an equitable apportionment

of costs between PRPs and was thus a contribution action under § 113.

       The limitations period for a contribution claim under § 113(g)(3) is three years. At

issue is when the limitations period begins to run. Section 113(g)(3) provides as follows:

       No action for contribution for any response costs or damages may be
       commenced more than three years after—

              (A) the date of judgment in any action under this chapter for
              recovery of such costs or damages, or

              (B) the date of an administrative order under section 9622(g) of this
              title (relating to de minimis settlements) or 9622(h) of this title
              (relating to cost recovery settlements) or entry of a judicially
              approved settlement with respect to such costs or damages.

42 U.S.C. § 9613(g)(3). Plaintiffs incurred cleanup costs in response to an EPA unilateral

administrative order under § 106, which is not one of the triggering events above.

       The district court held that the fact that Plaintiffs’ action was not governed by one

of these triggering events did not guarantee them an unlimited time in which to bring their

suit. Rather, according to the district court, this anomaly was the result of an inadvertent

                                              6
omission on the part of Congress. Thus, the court turned to another area of federal

contribution law, and held that Plaintiffs’ cause of action accrued (and the limitations

period began) when they had paid more than their equitable share of the cleanup costs.

With this as the accrual date, the bulk of Plaintiffs’ claims for contribution were time-

barred. The district court ruled that each payment should be treated separately, however,

so to the extent Plaintiffs could show they made payments within three years of their

filing of the instant action, they would still be entitled to seek contribution.

       The district court also noted the uncertainty as to possible future costs, as the

EPA’s remediation order provides for thirty years of maintenance and review of the Site.

Thus, it declined to rule on Plaintiffs’ declaratory action regarding apportionment of such

future costs, and requested further briefing on the issue. Such briefing has been abated

pending the outcome of this appeal.



                                          Discussion

       We review the grant of a motion for summary judgment de novo, applying the

same standard as the district court pursuant to Fed. R. Civ. P. 56(c). Watts v. Atlantic

Richfield Co., 115 F.3d 785, 790 (10th Cir. 1997). Summary judgment is appropriate if

there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c). “If there is no genuine issue of

material fact in dispute, we must determine whether the substantive law was correctly


                                               7
applied by the district court.” Id. (quoting Harvey E. Yates Co. v. Powell, 98 F.3d 1222,

1229 (10th Cir. 1996). We review de novo the district court’s construction of the relevant

statutory provisions. United States v. Wicklund, 114 F.3d 151, 153 (10th Cir. 1997).



                                             I.

       In Colorado & Eastern, we attempted to clarify the relationship between cost

recovery actions under § 107 and contribution actions under § 113, specifically

addressing who can recover under each provision. 50 F.3d at 1534-36. The original

CERCLA legislation created only the cost recovery mechanism of § 107, which makes

certain enumerated parties (PRPs) “liable for (A) all costs of removal or remedial action

incurred by [government entities] . . . ; [and] (B) any other necessary costs of response

incurred by any other person consistent with the national contingency plan.” 42 U.S.C.

§§ 9607(a)(4)(A) and (B). PRPs’ liability in cost recovery actions under § 107 is strict,

joint and several. Colorado & Eastern, 50 F.3d at 1535 (citing Farmland Indus. v.

Morrison-Quirk Grain, 987 F.2d 1335, 1339 (8th Cir. 1993); County Line Inv. Co. v.

Tinney, 933 F.2d 1508, 1515 (10th Cir. 1991)). Defendants in § 107 actions could only

escape joint and several liability—and have cleanup costs apportioned between

themselves and other PRPs—if they could demonstrate that the harm was divisible. This

was usually impossible given the nature of hazardous waste sites where wastes of varying

degrees of toxicity and migratory potential are mixed. Thus, CERCLA, as originally


                                             8
enacted, left a PRP who was singled out as a defendant in a cost recovery action without

any means of apportioning costs to other PRPs who may have contributed much of the

waste. Colorado & Eastern, 50 F.3d at 1535. The courts generally responded to this

inequity by recognizing an implicit federal right to contribution where PRPs who were

subject to joint and several liability incurred response costs in excess of their pro rata

share. Id.

       Congress codified this implicit right to contribution with the enactment of the

Superfund Amendments and Reauthorization Act of 1986 (SARA), which added

§§ 113(f) (contribution) and (g) (limitations periods) to CERCLA’s scheme. We held that

under this combined statutory scheme, any action by a PRP who was a defendant in a cost

recovery action was a claim “by and between jointly and severally liable parties for an

appropriate division of the payment one of them has been compelled to make,” and was

“the quintessential claim for contribution.” Id. at 1536. We reaffirmed this holding in

Bancamerica Commercial, 100 F.3d at 800.

       Plaintiffs argue that Colorado & Eastern is distinguishable. They claim that the

Colorado & Eastern rule is limited to those situations when the plaintiff PRP has incurred

cleanup costs pursuant to a civil action under §§ 106 or 107, whereas Plaintiffs in this

case incurred cleanup costs without any such action. Thus, they argue, they are not

limited to a § 113 contribution claim, but may also assert a cost recovery claim under

§ 107. We are not persuaded.


                                               9
       The fact that Plaintiffs incurred cleanup costs by complying with a unilateral

administrative order, without forcing the government to take them to court, does not

change their status as jointly and severally liable parties. They concede that they

generated wastes containing hazardous substances that were transported to the Site. Thus,

Plaintiffs’ claim is still by and between jointly and severally liable parties, seeking the

equitable apportionment of a payment which Plaintiffs have been compelled to make, and

is still a claim for contribution. Bancamerica Commercial, 100 F.3d at 800; Colorado &

Eastern, 50 F.3d at 1536.



                                              II.

        Plaintiffs’ attempted distinction of Colorado & Eastern is not, however, without

some merit. PRPs who have contributed waste to a site are jointly and severally liable for

cleanup costs, and are limited to seeking contribution from other PRPs.1 If those PRPs

have never been defendants in a civil action under §§ 106 or 107, however, it appears that

there is no statute of limitations governing their contribution claims. Section 113(g)(3)

establishes a three year limitations period for contribution actions, but none of the



       1
        We express no opinion on whether PRPs who assert their innocence with regard
to any waste at a site may be able to recover all of their costs from other PRPs in an action
under § 107. See Redwing Carriers, Inc. v. Saraland Apts., 94 F.3d 1489, 1496 (11th Cir.
1996); United Technologies v. Browning-Ferris Corp., 33 F.3d 96, 99-100 (1st Cir.
1994), cert denied, 513 U.S. 1183 (1995); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d
761, 764 (7th Cir. 1994).

                                              10
triggering events listed in that section will occur unless the PRP incurs its cleanup costs

pursuant to a § 106 or § 107 civil action brought by the government. See Pinal Creek

Group v. Newmont Mining Corp., 1997 WL 362462, at *7 (9th Cir. July 2, 1997). Thus,

PRPs who, like Plaintiffs here, incur cleanup costs pursuant to a unilateral administrative

order (or by a consent decree, or in some cases, voluntarily) potentially have an unlimited

time in which to bring their contribution claims. The district court reasoned that this

anomaly was the result of an inadvertent gap in the statute, and imported a triggering

event from another area of federal contribution law. Plaintiffs argue that this was

unnecessary. We agree.

       As we made clear in Bancamerica Commercial, § 113(f) did not create a new cause

of action, nor did it create any new liabilities.2 100 F.3d at 800. “It is no more than a

‘mechanism for apportioning [CERCLA]-defined costs.’” Id. (quoting County Line, 933

F.2d at 1517). “Thus, of necessity it must incorporate the liabilities set forth in § 107(a),


       2
           Section 113(f) of CERCLA governs contribution claims and provides:

               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).

                                              11
as those are the costs to be equitably apportioned.” Id. See Pinal Creek, 1997 WL

362462, at *3 (“§ 107 created the right of contribution, [and] the ‘machinery’ of § 113

governs and regulates such actions”); New Castle County v. Halliburton NUS Corp., 111

F.3d 1116, 1122 (3rd Cir. 1997) (“[S]ection 113 does not in itself create any new

liabilities; rather, it confirms the right of a [PRP] under section 107 to obtain contribution

from other [PRPs].”).

       It is thus clear that “because §113(f) incorporates the liability provisions of § 107,

. . . a § 113(f) action for contribution is an action under § 107.” Bancamerica

Commercial, 100 F.3d at 801 (emphasis in original). While a § 113 contribution action is

not a “cost recovery” action under § 107 as that action has been defined, because it does

not impose strict, joint and several liability on the defendant PRPs, it is an action for

recovery of the costs referred to in § 107. Under CERCLA’s statutory scheme, therefore,

a PRP’s contribution action seeks to recover costs referred to in § 107 from PRPs whose

liability is defined by § 107, but is governed by the equitable apportionment principles

established in § 113(f). See Pinal Creek, 1997 WL 362462, at *9 (“Because a claim

asserted by a PRP under § 107 requires the application of § 113, a PRP is limited to a

contribution claim governed by the joint operation of §§ 107 and 113.”).

       The contours of all CERCLA claims by and between PRPs who contributed waste

to a site are thus governed by the equitable contribution principles of § 113(f), and seek to




                                              12
recover costs referred to in § 107. A close reading of § 113(g) makes it clear, however,

that not all contribution claims have the same statute of limitations.

       PRPs against whom the government has brought a civil action under §§ 106 or 107

and who incur cleanup costs will do so in one of two ways: either the suit will proceed to

judgment or the parties will enter into a settlement. PRPs in either situation are expressly

covered by the language of § 113(f): “A person may seek contribution . . . during or

following any civil action under [§§ 106 or 107] of this title.” In addition, whether by

judgment or settlement, the three year limitations period of § 113(g)(3) will be triggered.

If the suit proceeds to conclusion, the limitations period begins running on the date of

judgment. 42 U.S.C. § 9613(g)(3)(A). If the parties settle, the limitations period begins

running on the date of the administrative order embodying the settlement (for § 9622(g)

de minimis settlements or § 9622(h) cost recovery settlements), or on the date of entry of

a judicially approved settlement. 42 U.S.C. § 9613(g)(3)(B). A judgment has its own

procedural safeguards, and CERCLA settlements are subject to publication in the Federal

Register and a 30-day notice and comment period. 42 U.S.C. § 9622(i).

       PRPs who have incurred cleanup costs in some other way 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.” Such PRPs, however, will not trigger the running of the limitations period in




                                             13
§ 113(g)(3), nor will their liability be fixed with the procedural safeguards attendant to a

civil action.

       Contrary to the district court’s ruling, however, this does not create a gap in the

statute of limitations, because § 113(g)(2) covers PRPs in this situation. It provides:

               An initial action for recovery of the costs referred to in section 9607
       of this title must be commenced—
       ....
               (B) for a remedial action, within 6 years after initiation of
               physical on-site construction of the remedial action . . . .

42 U.S.C. § 9613(g)(2). As we previously noted, “a § 113(f) action for contribution is an

action under § 107.” Bancamerica Commercial, 100 F.3d at 801 (emphasis in original).

It is, by definition, an action for recovery of the costs referred to in § 107. In this case,

because no previous action under §§ 106 or 107 has been filed with respect to this site,

Plaintiffs contribution action—while governed by the equitable principles of § 113(f)—is

the “initial action” for recovery of such costs. Thus, Plaintiffs § 113(f) contribution

action is the “initial action for recovery of the costs referred to in section 9607 of this

title,” and must be commenced “within 6 years after initiation of physical on-site

construction of the remedial action.” 42 U.S.C. § 9613(g)(2)(B).

       Defendants argue that § 113(g)(2) covers only the traditional “cost recovery”

action under § 107—which imposes strict, joint and several liability on other PRPs and

which, as we have already held, is not available to Plaintiffs. We disagree because the

language in question contains no such limitation. By its own terms, § 113(g)(2) covers


                                               14
the “initial action” for the recovery of “costs referred to” in § 107. There is no question

that this language covers a traditional § 107 cost recovery action brought by the

government or any other person who is not a waste-contributing PRP. Nothing in that

language, however, excludes a contribution action, which also seeks to recover an

equitable portion of “costs referred to” in § 107, provided that particular contribution

action is the “initial action” to recover such costs.

       Defendants also argue that the language of § 113(g)(3) makes it clear that

Congress expressly chose a three-year limitations period for all contribution claims.

Thus, they argue, the six-year limitations period in § 113(g)(2) cannot apply.3 It is true

that § 113(g)(3) is subtitled “Contribution,” and provides that “[n]o action for

contribution for any response costs or damages may be commenced more than 3 years

after—[the four enumerated triggering events].” Contrary to Defendants’ arguments,

however, our construction of the statute is not inconsistent with this language. A

contribution claim which is the “initial action,” and thus governed by the six-year

limitations period of § 113(g)(2), will not be commenced more than three years after any

of the four enumerated triggering events, because none of those triggering events will

ever occur.




       This rationale also was expressed in Ekotek Site PRP Committee v. Self, 881 F.
       3

Supp. 1516, 1522 n.2 (D. Utah 1995), but we do not find exclusive reliance upon
§ 113(g)(3), see Ekotek, 881 F. Supp. at 1522-23, persuasive in these circumstances.

                                              15
       By contrast, if a contribution action is not the initial action, then by definition a

previous action will have been filed, and one of the four triggering events in § 113(g)(3)

will occur. In this way, Congress has provided an express statute of limitations to cover

all CERCLA contribution actions, regardless of how the PRPs in question incurred their

cleanup costs. In effect, there are two different types of contribution actions under

CERCLA, each governed by the same equitable rules of § 113(f) and each seeking to

equitably apportion costs referred to in § 107, but governed by different statutes of

limitations. See Key Tronic Corp. v. United States, 511 U.S. 809, 816 (1994)

(recognizing two “similar and somewhat overlapping” contribution actions under §§ 107

and 113).

       This construction of CERCLA is internally consistent in its application of the

language of the statute, and follows our precedents and the increasing body of law from

other circuits. Together, §§ 107 and 113 allow “any person” who has incurred cleanup

costs consistent with the National Contingency Plan to recover some or all of those costs

from PRPs who were responsible for the waste. A government entity (Federal, State or

Indian) or a party who did not contribute to the waste may recover all of its expenditures

in a traditional § 107(a) “cost recovery” action against any PRP. Liability will be strict,

joint and several. A PRP who contributed to the waste may recover from other PRPs a

portion of the costs it expended in cleaning up the site in a contribution action under

§ 113(f). Colorado & Eastern, 50 F.3d at 1536. The liability of the other PRPs will be


                                              16
defined by § 107, but under § 113(f), that liability will be several, and the total cleanup

costs—including responsibility for “orphan shares”4—will be equitably apportioned

among all the PRPs, with the court being able to consider any factors it deems relevant.

Id. If the PRP incurred its cleanup costs pursuant to a civil action under §§ 106 or 107, it

will have three years from the date of judgment or settlement in which to bring its

contribution claim. 42 U.S.C. § 9613(g)(3). If the PRP incurred its cleanup costs in some

other way, without the attendant procedural safeguards of a judgment or CERCLA

settlement, its contribution action will be the initial action for recovery of such costs.

That PRP will have six years from the start of remediation (or three years after

completion of a removal action) in which to file. 42 U.S.C. § 9613(g)(2).

       This construction of §§ 107 and 113 also gives effect to each section of the statute.

See Colorado & Eastern, 50 F.3d at 1536 (rejecting a construction of the statute that

would render any part of § 113 meaningless). For example, the Third Circuit expressed

concern that if a PRP were allowed to seek contribution under § 107, the contribution

defense of § 113(f)(2) could be circumvented, or read out of the statute. In re Reading

Co., 115 F.3d 1111, 1119 (3rd Cir. 1997). Under § 113(f)(2), any party who resolves its

liability to the government in an administrative or judicially approved settlement has a

defense against contribution claims brought by other PRPs regarding any matters


       4
         “Orphan shares” are those shares of the waste responsibility which are
attributable to PRPs who either are insolvent or cannot be located or identified. Pinal
Creek, 1997 WL 362462, at *5.

                                              17
addressed in the settlement. 42 U.S.C. § 9613(f)(2). To the extent that Reading would

find fault with our construction because it suggests the availability of a “§ 107

contribution action” for certain PRPs, we believe the Third Circuit’s concern reflects a

misconception of the relationship between §§ 107 and 113. Our construction of the

statute does not divide contribution actions into § 113 actions and § 107 actions

depending on the procedural posture of the plaintiff PRP. On the contrary, our holding

merely recognizes that while all actions by and between jointly and severally liable PRPs

are “actions under § 107” for purposes of liability, they are all still contribution actions

governed by § 113(f). By its terms, the contribution defense embodied in § 113(f)(2) is

applicable to any claim for contribution. Thus, regardless of whether the plaintiff PRP

incurred costs pursuant to a civil action or through some other proceeding, any defendant

PRP who has resolved its liability to the government in an administrative or judicially

approved settlement may invoke the contribution defense contained in § 113(f)(2).



                                              III

       PRPs who have contributed to the waste at a site may recover from other PRPs that

portion of their cleanup costs which exceeds their pro rata share. Such an action is “the

quintessential claim for contribution,” Colorado & Eastern, 50 F.3d at 1536, and is

governed by the equitable principles of § 113(f). A PRP who incurred cleanup costs

pursuant to a civil action under §§ 106 or 107 will have its contribution claim governed


                                              18
by the three year limitations period set out in § 113(g)(3). A PRP who incurred cleanup

costs in some other way, such as pursuant to an EPA unilateral administrative order, will

have its contribution claim governed by the limitations period in § 113(g)(2), which

governs “initial actions” for recovery of such costs. Accordingly, we AFFIRM the

district court’s dismissal of Plaintiffs’ traditional cost recovery action under § 107. We

REVERSE the district court with respect to Plaintiffs’ § 113(f) contribution claims, and

REMAND for further proceedings.




                                             19
