Avnet, Inc., 825 F. Supp. 1132, 1139-41. In other words, if CERCLA's contribution protection provision could be circumvented simply by semantic manipulation -- i.e., suing a settling PRP for "reimbursement" rather than "contribution" -the incentive provided by the contribution protection provision for PRPs to settle their CERCLA liability with the government would be frustrated. Thus, courts considering this issue have found that while "any person" can bring a cost recovery action under § 9607(a)(4)(B), recovery will be barred if the suit is actually a disguised contribution action. In these masked-contribution claims, the courts have found that ascribing the usual meaning to the word "contribution" solves the potential problem of non-settling PRPs attempting to circumvent CERCLA's own mechanisms. The result is that any claim which satisfies the common legal definition of "contribution" must be brought as a § 9613(f) contribution claim and not as a § 9607(a)(4)(B) reimbursement claim.
I find that uniformity of interpretation, accepted canons of construction, CERCLA policies, and the Bankruptcy Code require that in this case, just as when a non-settling PRP sues a settling PRP, the word "contribution" for purposes of § 9613(f) should be given its plain meaning and that third party plaintiffs cannot predicate their § 9613(f) contribution claim on Reading's alleged § 9607(a)(4)(B) liability.
A § 9613(f) contribution claim must be predicated upon common liability to a third-person and cannot be brought against a party whose third-person liability was discharged in bankruptcy.
See, e.g., United Tech., 33 F.3d at 101; Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 87-88, 67 L. Ed. 2d 750, 101 S. Ct. 1571 (1981) ("Typically, a right to contribution is recognized when two or more persons are liable to the same plaintiff for the same injury . . ..").
Whenever possible, courts should interpret a single statutory provision uniformly. As noted above, in the context of a non-settling PRP suing a PRP who settled, there is substantial authority indicating that the term "contribution" as used in § 9613 must be given its plain meaning. See, e.g., United Tech, 33 F.3d at 101. Thus, it follows that outside of the non-settling/settling-PRP context, the word contribution as used in § 9613(f) should also be given its plain meaning. Such an interpretation contributes to a uniform construction of CERCLA, a statute already widely criticized for its complexity and poor draftsmanship. See In re Chicago, Milwaukee St. Paul & Pac. R., 3 F.3d at 201.
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. Bradley v. United States, 410 U.S. 605, 609, 35 L. Ed. 2d 528, 93 S. Ct. 1151 (1973). In enacting § 9613(f), Congress gave no indication that it intended the word "contribution" to have some special meaning. Absent evidence of such intent, I find that when Congress used the word "contribution" in § 9613(f) it intended that word to have its usual meaning and, therefore, there must be common liability over to a third party before § 9613(f)'s contribution provision applies. Finally, both the Bankruptcy Code's fresh start policy and CERCLA's contribution protection policy for settling PRPs militate in favor of giving the word "contribution" its ordinary meaning in § 9613(f) and thereby requiring common liability over to a third party. In the case of a non-settling PRP who sues a settling PRP, courts have found that CERCLA's policy of encouraging settlement requires that the suit be brought under § 9613(f) rather than § 9607(a)(4)(B). See United Tech, 33 F.3d at 102 (finding that PRPs should utilize § 9613(f) while innocent parties can use § 9607(a)(4)(B)). This policy will be furthered by my holding today because the instant case involves a PRP seeking recovery from another PRP. Consistent with the courts that have considered actions by one PRP against another PRP, I find that Congress intended § 9613, and not § 9607(a)(4)(B), to control the legal relationship between these parties. If I were to accept third party plaintiffs' interpretation, I would permit a round-about way for PRP's to proceed under § 9607(a)(4)(B) by bootstrapping a § 9613(f) claim onto that provision. That is exactly the result that courts in other contexts have rejected.
My holding today will also further the bankruptcy policy of providing debtors with a fresh start. This policy seems especially pronounced in this case, where the Reading Railroad bankruptcy was consummated over fourteen years ago, and Reading now shares little but its name with its debtor-predecessor.
For these reasons, it is clear that the plain meaning of contribution controls this case and precludes third party plaintiffs from asserting a § 9613(f) contribution claim against Reading based on § 9607(a)(4)(B) liability. Accordingly, the absence of common liability between Reading and the third party plaintiffs to another CERCLA claimant is fatal.
Contribution under CERCLA is proper if the contribution plaintiff can establish the contribution defendant's liability under § 9607(a). Reading is not liable under § 9607(a)(4)(A) to the government because that CERCLA claim was discharged as part of the Reading Railroad's bankruptcy. Additionally, Reading's potential § 9607(a)(4)(B) liability to third party plaintiffs is not a proper basis on which to assert a contribution claim. An appropriate order follows.
This 14th day of September, 1995, upon consideration of the Reading Company's motion for injunctive relief, IT IS HEREBY ORDERED that the motion is GRANTED and no claims arising from the alleged environmental liability from the Berks Associates' Douglassville site shall be asserted against Reading Company.
BY THE COURT: