Aviall Services, Inc. v. Cooper Industries, Inc.

EMILIO M. GARZA, Circuit Judge:

Aviall Services, Inc. (“Aviall”) appeals the summary judgment dismissal of its contribution claim based on the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9613(f)(1). The district court ruled that Aviall could not seek contribution from Cooper Industries, Inc. (“Cooper”) unless Aviall had incurred or at least faced liability under a CERCLA administrative abatement or cost recovery action. We affirm, holding that the text of CERC-LA requires this result.

*136I

Cooper ran an aircraft engine maintenance business at several of its industrial facilities. The rebuilding of aircraft engines required the use of petroleum and other hazardous substances, some of which seeped into the ground and groundwater through underground storage tanks and spills. Among the industrial facilities contaminated were Love Field, Carter Field and Forest Park (collectively, the “Facilities”). In 1981, Cooper sold its aircraft engine maintenance business, along with the Facilities, to Aviall. Several years later, Aviall began discovering some of the contamination that had occurred at the Facilities. Aviall admits, though, that the pollution of the Facilities continued under its stewardship as well.

Aviall notified the Texas Natural Resource Conservation Commission (“TNRCC”) of the contamination at its Facilities. In turn, the TNRCC sent several letters to Aviall informing the company that it was in violation of Texas state environmental laws. Notably, the Environmental Protection Agency (“EPA”) never contacted Aviall or designated the Facilities as contaminated sites. In 1984, Aviall began a decade-long environmental cleanup, spending millions of dollars. In early 1995, Aviall for the first time contacted Cooper seeking reimbursement. Aviall eventually sold the Facilities to another private party, but it contractually retained a continuing responsibility for the environmental cleanup.

In 1997, Aviall filed this lawsuit against Cooper based in part on CERCLA’s § 107(a) “cost recovery” provision, which allows innocent persons to recover environmental response costs from liable parties. Aviall later amended its complaint dropping the § 107(a) cost recovery claim, while adding contribution claims under § 113(f)(1) of CERCLA as well as under the Texas Solid Waste Disposal Act, Tex. Health & Safety Code ANN. § 361.344(a) (West 1992 & Supp.2001), and the Texas Water Code, Tex. Water Code Ann. § 26.3513(j) (West 2000). The district court granted Cooper’s motion for summary judgment, dismissing the § 113(f)(1) CERCLA contribution claim and then declining to exercise supplemental jurisdiction over the state law contribution claims. Relying on the plain language of the statute, the court held that Aviall could not assert a § 113(f)(1) contribution claim unless it was subject to a prior or pending CERCLA action involving either § 106 (federal administrative abatement action) or § 107(a) (cost recovery action by the government or a private party).1

On appeal, Aviall admits that neither the EPA nor any private party has filed a CERCLA claim against it. Notwithstanding this lack of federal action against it, Aviall claims that it can pursue CERCLA-based contribution because it voluntarily cleaned up the contamination, or at least it did so at the behest of a state environmental agency. Before discussing the merits of these arguments, we briefly review the structure and history of CERCLA.

II

Congress enacted CERCLA to facilitate the cleanup of hazardous waste sites, and to shift the costs of environmental re*137sponse from the taxpayers to the parties who benefitted from the use or disposal of the hazardous substances. See OHM Remediation Serv. v. Evans Cooperage Co., Inc., 116 F.3d. 1574, 1578 (5th Cir. 1997). The statute allows parties who incur environmental cleanup costs to recover from persons commonly referred to as “potentially responsible parties” (“PRPs”). See 42 U.S.C. § 9607(a). Subject to certain statutory exceptions, PRPs are broadly defined to include: (1) current owners and operators of vessels or facilities that accepted hazardous substances; (2) past owners or operators of facilities where haz-. ardous substances were disposed; (3) persons who by contract or agreement arranged for the disposal or transport of hazardous substances; and (4) persons who accept or accepted hazardous substances for transport to disposal or treatment facilities. See 42 U.S.C. § 9607(a).

CERCLA provides two ways for parties to recover environmental response costs. The § 107(a) cost recovery provision permits the government or an “innocent” private party to recoup cleanup costs from PRPs. See 42 U.S.C. § 9607(a)(4) (stating that PRPs “shall be liable for — (A) all costs of removal or remedial action incurred by the United States Government or a State ... [and] (B) any other necessary costs of response incurred by any other person ...”). PRPs are held jointly and severally liable under this cost recovery provision. The other method of recovering environmental response costs involves § 113(f)(1), the contribution provision. See 42 U.S.C. § 9613(f)(1). It allows a PRP to seek contribution from other PRPs if it assumed a disproportionate share of the cleanup costs. Under § 113(f)(1), courts have the discretion to allocate the response costs equitably among the various PRPs. CERCLA additionally includes a provision (§ 106) for the federal government to seek an administrative abatement order (enforceable in court) against PRPs. See 42 U.S.C. § 9606.

Courts have elaborated on the distinction between a contribution action under § 113(f)(1) and a cost recovery action under § 107(a). A contribution claim involves actions between PRPs, while a cost recovery suit is initiated by a non-responsible party against a PRP. See, e.g., OHM, 116 F.3d at 1583. Thus, a PRP cannot file a § 107(a) suit against another PRP; it must pursue a contribution action instead. See id. In the present ease, Aviall and Cooper concede that they are both PRPs because they both contributed to the contamination of the Facilities.2 The issue presented in this case is whether a PRP seeking a § 113(f)(1) contribution suit must have an ongoing or adjudged § 106 or § 107(a) action against it.

Ill

After examining the text and structure of CERCLA, we hold that a party can seek a § 113(f)(1) contribution claim only if there is a prior or pending federal § 106 or § 107(a) action against it.3 While no directly binding case law exists, we believe that the majority of courts that have addressed this issue agree with our textual *138analysis. Moreover, the legislative history, as a secondary source, reinforces our interpretation. We review the district court’s grant of summary judgment de novo, construing all facts and inferences in the light most favorable to the nonmoving party. See Uniroyal Chem. Co. v. Deltech Corp., 160 F.3d 238, 241 (5th Cir.1998).

A

Any analysis of a statutory provision must be tethered and true to the text. See United States v. Alvarez-Sanchez, 511 U.S. 350, 356, 114 S.Ct. 1599, 1603, 128 L.Ed.2d 319 (1994) (“When interpreting a statute, we look first and foremost to its text”). The contribution section of CERCLA states: “Any person may seek contribution from any other person who is liable or potentially liable under [§ 107(a)], during or following any civil action under [§ 106] or under [§ 107(a)].” 42 U.S.C. § 9613(f) (emphasis added).

A plain language reading of the statute requires a PRP seeking contribution from other PRPs to have filed a § 113(f)(1) claim “during or following” a federal CERCLA action against it. Aviall concedes that it did not file its § 113(f)(1) contribution claim “during or following” a § 106 or § 107(a) action against it, but it argues that neither action is necessary as long as it voluntarily cleaned up the Facilities. It alternatively contends that it can seek contribution because the TNRCC compelled it to clean up the Facilities— even though CERCLA does not expressly specify that contributions are allowed in the context of state agency enforcement orders.

We begin our analysis with the word “contribution” itself. The word “contribution” is defined as the “[r]ight of one who has discharged a common liability to recover of another also liable.... Under principle of ‘contribution,’ a tort-feasor against whom a judgment is rendered is entitled to recover proportional shares of judgment from other joint tort-feasors.... ” Black’s Law DICTIONARY 329 (6th ed.1990). As further explained in Sections C and D, we believe that the commonly accepted definition of contribution requires a tortfeasor to first face judgment before it can seek contribution from other parties.

Notwithstanding the definition of “contribution,” Aviall claims that the statutory language of CERCLA supports its view. It first notes that under § 113(f)(1), “[a]ny person may seek contribution ... during or following any civil action under [§ 106] or under [§ 107(a)].” 42 U.S.C. § 9613(f) (emphasis added). The key question is whether the use of the word “may” signifies an exclusive means for contribution (as in a party “may only” or “must” seek contribution during or following a CERC-LA action), or a non-exclusive means for contribution (as in a party “may choose one of several ways” to seek contribution, and one way is during or following a CERCLA action). Aviall adopts the latter view, arguing that § 113(f)(1) does not affirmatively exclude contribution suits initiated under other circumstances. If the former view was intended, Aviall claims, Congress would have stated that a party “may only” seek contribution during or following CERCLA actions.

Aviall’s analysis is inconsistent with our canons of statutory construction. Depending on the context, the word “may” can have the permissive definition of “have liberty to,” or alternatively, it can denote exclusivity as in “shall [or] must.” WebsteR Third New International Dictionary 1396 (3d ed. 1993). We have held that 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 *139“must.”4 Accordingly, a party can file a contribution claim only if it has been alleged or deemed liable under § 107(a) or if the federal government has ordered it to clean up contaminated sites under § 106.

Our reasoning in Resolution Trust Corp. v. Miramon, 22 F.3d 1357 (5th Cir.1994), is instructive. In Miramon, the Resolution Trust Corporation disputed the district court’s interpretation of the Financial Institutions Reform, Recovery and Enforcement Act, which states that a “director or officer ... may be held personally liable for monetary damages in any civil action ... for gross negligence.” Id. at 1360-61 (emphasis added). The issue was whether or not the statute adopted an exclusive gross negligence standard. The RTC offered the exact same argument that Aviall maintains today: it argued that “[i]f that section were meant to be exclusive ... it would have said ‘may only.’ ” Id. at 1361. We rejected that argument, holding that the word “may,” when used in the context of establishing an enabling provision, creates an exclusive cause of action. See id. at 1361 n. 5 (“Read in context, the word ‘may’ refers to the right of the [RTC] to bring an action under this section. ‘May’ cannot reasonably be read to qualify the gross negligence standard”). Similarly in our case, the word “may” in CERCLA is used in the context of empowering a contribution action. Simply put, when a statute creates a cause of action, we must narrowly read the word “may” as establishing an exclusive enabling provision. Otherwise, we would “undermineG the very cause of action the section creates” because the statute would then essentially open the floodgates for parties to pursue causes of action through unspecified and unnamed methods. Id. at 1361. In fact, it would have been pointless for Congress to have expressly limited contribution suits to “during or following” a CERCLA action if a party could ignore that limitation and still seek contribution.

Aviall also relies on the last sentence of § 113(f)(1), 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].” 42 U.S.C. § 9613(f). Aviall states that this clause reinforces its view that Congress intended to allow contribution suits, regardless of whether the parties are CERCLA defendants in a § 106 or § 107(a) action.

We reject AviaH’s reading of the savings clause, and instead interpret it to mean that the statute does not affect a party’s ability to bring contribution actions based on state law. If we adopted Aviall’s interpretation, it would render superfluous the first sentence of § 113(f)(1), the enabling clause. As we noted in analyzing that sentence, why would Congress have incorporated an enabling provision (allowing parties to seek contribution “during or following” a § 106 or § 107(a) action) if a party could bring a contribution claim regardless of the enabling clause’s “during or following” limitation? It makes little sense that Congress would codify the “during or following” limitation, and then expressly invalidate it within the very same section. Thus, the dissent is left to argue that the “during or following a civil action” language is not actually a limitation on when a party can seek contribution but rather “an express reaffirmation of the right to seek contribution before judg*140ment,” and further that the savings clause serves no purpose other than to “make abundantly clear” that poinN-just in case a reader might place an “overly restrictive reading” on the words “during or following.” Put another way, the dissent seemingly argues that Congress deliberately made the meaning of the enabling provision unclear, and then decided to clarify that ambiguity by adding a savings clause in the same section. We reject such an interpretation of the contribution section.

Additionally, we have held that “Heading the savings clause to nullify the substantive portion of the section would ‘violate the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative.’ ” Miramon, 22 F.3d at 1861. Aviall’s reading would further violate another canon of construction that the specific governs the general. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S.Ct. 2031, 2037, 119 L.Ed.2d 157 (1992) (interpreting a savings clause). We will not read “CERCLA’s savings clause ... to gut provisions of CERCLA.” PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 618 (7th Cir.1998) (analyzing the CERCLA savings clause under 42 U.S.C. § 9652(d)).

A more reasonable reading of the savings clause suggests that Congress wanted to “merely nix an inference that the statute in which it appears is intended to be the exclusive remedy for harms caused by the violation of the statute.” Id. More specifically, the savings clause was likely intended to preserve state law-based claims of contribution. See id. (“The purpose of CERCLA’s savings clause is to preserve to victims of toxic wastes the other remedies they may have under federal or state law”); see also Rockwell Int’l Corp. v. IU Int’l Corp., 702 F.Supp. 1384, 1389 (N.D.Ill.1988) (“[W]e view the last sentence of [§ 113(f)(1)] ... as an assurance that contribution remains available in other contexts, such as through Rockwell’s claims for contribution under Illinois law”). Indeed, Aviall has done just that: it has filed contribution claims against Cooper under Texas state law, in addition to its § 113(f)(1) suit.

In short, we hold that, as a matter of statutory text and structure, CERCLA requires a party seeking contribution to be, or have been, a defendant in a § 106 or § 107(a) action.5

B

The legislative history of CERCLA reinforces our analysis of the statutory text. While legislative history sometimes is of limited value due to its potential ambiguity, it can nevertheless be useful when it overwhelmingly supports one side, as it does in this case. See Boureslan v. Aramco, 857 F.2d 1014, 1018 (5th Cir.1988) (stating that “[Ijegislative history is relegated to a secondary source behind the language of the statute in determining congressional *141intent; even in its secondary role legislative history must be used cautiously.”)

The original CERCLA statute did not explicitly state whether one PRP could sue another PRP for contribution, although several district courts had implied such a right. In 1986, Congress amended CERC-LA with the Superfund Amendments and Reauthorization Act (“SARA”), codifying an express contribution provision in § 113(f)(1). See 42 U.S.C. § 9613(f)(1). While Congress drafted CERCLA as a broad remedial statute, Congress equally made it clear in passing SARA that it intended only a limited federal right of contribution.

A House of Representatives conference report on SARA emphasized that a party seeking contribution must have first incurred (or at least must face potential) cleanup costs pursuant to either § 107(a) or § 106. The report stated, “This section clarifies and confirms the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties.” H.R. Rep. No. 00-253(1) (1985), reprinted in U.S.C.C.A.N. 2835, 1985 WL 25943 at 26 (Leg. Hist.) (emphasis added). The Senate’s SARA report echoed the House’s legislative intent. It explained that the new contribution provision permits “parties found liable under sections 106 or 107 [to] have a right of contribution, allowing them to sue other liable or potentially liable parties to recover a portion of the costs paid.” S. Rep. No. 99-11 at 43 (1985) (emphasis added).

The House report added that a contribution action exists even if a CERCLA action is merely pending: “The section contemplates that if an action under section 106 or 107 of the Act is under way, any related claims for contribution or indemnification may be brought in such an action.” H.R. Rep. No. 00-253(1), 1985 WL 25943 at 26. The legislative history never mentions that SARA intended to allow contribution in the absence of either a pending or prior § 106 or § 107(a) action. The House report’s emphasis that even a pending CERCLA claim is sufficient to allow contribution suits suggests that a PRP seeking contribution must, at the very least, have a CERCLA suit filed against it. As the House report declared, § 113(f)(1) was added to “confirmQ a Federal right of contribution or indemnification for persons alleged or held to be liable under section 106 or 107 of CERCLA.” Id.

C

The majority of the courts addressing § 113(f)(1) have agreed with our textual analysis. No federal circuit has yet directly weighed in on this question, but several district courts have discussed when a party can file a contribution action.

A helpful district court decision is Estes v. Scotsman Group, Inc., 16 F.Supp.2d 983 (C.D.Ill.1998), a case factually similar to Aviall’s situation. In Estes, Nicholas Estes purchased an industrial site contaminated with hazardous substances, which he moved and handled in violation of environmental regulatory guidelines. After the Illinois Environmental Protection Agency sent Estes an enforcement notice letter, he undertook a cleanup of the site. Estes then filed a CERCLA claim based on § 107(a) and § 113(f)(1) against the pri- or owner. The district court dismissed the § 107(a) cost recovery action because it held that Estes, as a PRP, could not file a cost recovery suit. The court then relied on the plain meaning of the statute to hold that Estes could not seek contribution under § 113(f)(1) unless that action was “during or following” a cost recovery suit or a federal administrative order against Estes. Because Estes was not a defendant in a CERCLA action, the court dismissed his *142§ 113(f)(1) claim. See id. at 989 (“Section 113(f) [claim] should be dismissed because there is no § 106 or § 107 claim pending”). It did not matter to the court that Estes had received an enforcement notice letter from the state environmental agency, or that he may have cleaned up the sites voluntarily.

Similarly, another district court dismissed a PRP’s contribution claim as “premature and improper” because the PRP was “yet to be found liable” under CERCLA. See Deby, Inc. v. Cooper Indus., No. 99C2464, 2000 WL 263985, *6 (N.D.Ill. Feb. 29, 2000) (“Contribution is a remedy available to parties held liable, through judgment or settlement, in some damages action.... To receive actual compensation ... the party must have been found liable as a defendant in an earlier or pending action.”) (internal citations omitted). Several other district courts have reaffirmed this textual analysis of CERCLA’s contribution provision. See United States v. Compaction Sys. Corp., 88 F.Supp.2d. 339, 350 (D.N.J.1999) (“If the Settlors, by settling with the United States, meet the requirements of liability under Section 107(a) ... Settlors may pursue apportionment under Section 113(f)(1) for that part of their expenditures that exceeds its share of liability”); Southdown v. Allen, 119 F.Supp.2d 1223, 1245 n. 41 (N.DAla. 2000) (citing the district court opinion of Aviall v. Cooper for the proposition that “[o]nce the district court determines who are responsible parties under § 107(a), the next step under § 113(f) is to allocate responsibility among the parties.”) (citations omitted).6

In addition to these district courts, two Circuit courts — including this one — have suggested in dicta that a party cannot file a contribution claim unless it is a defendant in a federal cost recovery or administrative action. The Seventh Circuit analyzed the “during or following” language in § 113(f)(1), and said that “a § 106 or § 107(a) action apparently must either be ongoing or already completed before § 113(f)(1) is available.” Rumpke of Ind., Inc. v. Cummins Engine Co., Inc., 107 F.3d 1235, 1241 (7th Cir.1997). While the Seventh Circuit’s dicta, of course, does not bind this court, its textual analysis of § 113(f)(1) supports our interpretation of the contribution clause. This Circuit has similarly intimated that a § 106 or § 107(a) action must be pending or adjudicated for a party to pursue contribution costs. See OHM, 116 F.3d at 1574. Although OHM only addressed whether a PRP was limited to a contribution action, we nevertheless discussed the contours of § 113(f)(1), noting that it “allows parties to bring contribution actions at least as soon as they are sued under CERCLA.” Id. at 1582. We then examined the common law roots of contribution, and implied that a party must be alleged or held liable before it can seek contribution: “Under the principle of ‘contribution,’ a tort-feasor against whom a judgment is rendered is entitled to recover proportional shares of judgment from other joint tort-feasors.” Id. at 1582 (citing Black’s Law Dictionaey 328 (6th ed. 1990)) (emphasis added). Our reading of CERCLA’s contribution provision is consistent with the common law definition: a contribution action can commence only if *143a party has already been found liable or faces potential liability.

A few district court cases have adopted the contrary view that a PRP can bring a § 113(f)(1) claim without first incurring or at least facing liability under either § 107(a) or § 106. See Johnson County Airport Comm’n v. Parsonitt Co., Inc., 916 F.Supp. 1090, 1095 (D.Kan.1996); Ninth Ave. Remedial Group v. Allis Chalmers Corp., 974 F.Supp. 684 (N.D.Ind.1997); Mathis v. Velsicol Chem. Corp., 786 F.Supp. 971 (N.D.Ga.1991). We disagree with the analysis in these cases. For example, in Johnson County Airport, the district court allowed the contribution suit by relying on § 113(f)(l)’s savings clause. See id. (noting that the savings clause states that “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 § 9606 or § 9607 of this title”)- As we explained earlier in this opinion, the savings clause was only intended to preserve state-based contribution actions. Any other interpretation of the savings clause would render the enabling clause’s “during or following” limitation a mere surplusage.

Aviall cites several other cases to support its contention that a § 106 or § 107(a) action is not required. None of them, however, is apposite. In Geraghty & Miller, Inc. v. Conoco, Inc., 234 F.3d 917 (5th Cir.2000), G&M filed a private CERCLA claim against Conoco/Vista, who filed a counterclaim seeking relief under § 107(a) and § 113(f)(1). Later, G&M voluntarily dismissed its CERCLA claim, while Cono-co/Vista dropped its § 107(a) claim, leaving only its § 113(f)(1) counterclaim. Aviall points out that the Fifth Circuit allowed Conoco/Vista’s § 113(f)(1) contribution action to proceed.

Aviall’s reliance on Geraghty & Miller is misplaced. First, unlike Aviall — which had never been a defendant in any CERC-LA action — Conoco/Vista was a CERCLA defendant at the time it filed its contribution claim against G&M, and thus had met § 113(f)(l)’s “during or following” requirement. Cf. OHM, 116 F.3d at 1582 (stating that a party may be “potentially liable” in the context of a contribution claim if it is “simply ... being sued under the statute”). Second, while Geraghty & Miller contains some helpful language for Aviall, we did not directly address whether a contribution suit could proceed without a prior or pending CERCLA action. Rather, we considered the only issue presented to us: which statute of limitation applies if a party seeks contribution but none of the triggering events occurs.7 G&M never raised the issue of whether Conoco/Vista could pursue its contribution claim, and thus the court did not directly address it.

Similarly, Sun Co., Inc. v. Browning-Ferris, Inc., 124 F.3d 1187 (10th Cir.1997), mentioned that a PRP might be able to undertake cleanup voluntarily. This dicta, however, was said only in the context of the appropriate statute of limitations period. See also United Tech. Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96, 99 n. 8 (1st Cir.1994) (noting in dicta that “[i]t is possible that ... a PRP who spontaneously initiates a cleanup without governmental prodding might be able to pursue an implied right of contribution under 42 U.S.C. § 9607(c),” but stating that it is “a matter on which we take no view”).

*144Aviall also cites favorable language from Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 351 (6th Cir. 1998) (“It was enough that a plaintiff act under some compulsion or legal obligation to an injured when he or she discharged the payment”). The Sixth Circuit’s ruling can be distinguished factually because the plaintiff in Centerior initiated a cleanup after the EPA had issued an administrative order under § 106. See id. at 346. Aviall has not received any such order from the EPA. Indeed, the Centerior court cautioned, “This case does not involve a PRP who initiated cleanup voluntarily without any governmental prodding, and we express no opinion” on that point. Id. at 352 n. 10.

Lastly, Aviall lists a string of cases where a PRP undertook cleanup and then filed for contribution, although only a state agency had issued an administrative order against the PRP. See, e.g., Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Cir. 1989). Aviall thus argues that the TNRCC’s administrative orders were sufficient to allow it to proceed with its § 113(f)(1) claim. The facts section of these opinions admittedly mention only state agency enforcement. However, these cases are not dispositive for the simple fact that the parties for whatever reason did not raise the specific issue presented in our case: whether a PRP can seek contribution in the absence of a CERCLA action against it.8

D

Finally, Aviall makes a general policy argument that the district court’s ruling would discourage voluntary cleanups because parties would not be able to seek contribution unless they were actually sued or faced EPA administrative orders. Some courts have conceded this disincentive, but have nevertheless ruled that Congress required this result. See Rumpke, 107 F.3d at 1240 (“We acknowledge, as other courts have, that this seems to provide a disincentive for parties voluntarily to undertake cleanup operations, because a § 106 or § 107(a) action apparently must either be ongoing or already completed before § 113(f)(1) is available. This appears to be what the statute requires, however”). We agree that the text trumps policy preferences, and that we cannot substitute Congress’ wishes with our own.

In any event, we believe that our interpretation of the statute is wholly consistent with the policy goals of CERCLA. When Congress passed SARA, it did not intend to create an expansive federal cause of action. As the legislative history shows, Congress wanted only a limited right of contribution when parties are found or alleged to be liable under CERCLA. See S.Rep. No. 99-11 at 44 (stating that § 113(f)(1) “clarifies and confirms the [judicially recognized] right of a person held jointly and severally liable” to seek contributions). It seems unlikely that Congress enacted a contribution right broad enough to encompass Aviall’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. Furthermore, Congress probably did not intend to go beyond the traditional common law definition of contribution in drafting CERCLA’s contribution provision. See OHM, 116 F.3d at 1574 (defining the *145common law definition of contribution as requiring a pending or prior judgment). In short, we do not believe that Congress wanted to afford a federally-based contribution right to a party merely because a state agency had found it to have violated a state environmental law.

We also doubt that our interpretation of § 113(f)(1) will necessarily discourage voluntary cleanups. Parties may be able to rely on state environmental laws to recover costs from other liable parties. Indeed, Aviall is alternatively seeking contribution from Cooper based on two Texas statutes. That option remains open despite our ruling today.

IV

After examining CERCLA’s text, legislative history and case law, we hold that a PRP seeking contribution from other PRPs under § 113(f)(1) must have a pending or adjudged § 106 administrative order or § 107(a) cost recovery action against it.

AFFIRMED.

. The pertinent parts of the contribution provision read: “Any person may seek contribution from any other person who is liable or potentially liable under [§ 107(a)], during or following any civil action under [§ 106] or under [§ 107(a)],... 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(a)].” 42 U.S.C. § 9613(f) (emphasis added).

. Aviall accordingly dropped its § 107(a) claim in its amended complaint.

. Cooper offered two additional, independent arguments why Aviall’s contribution claim should be barred: (1) it failed to notify timely the EPA and the Attorney General of its private party CERCLA action; and (2) it did not comply with the National Contingency Plan by failing to provide adequate opportunity for public participation. We need not address these two arguments, given that we bar Av-iall's contribution claim because of the lack of a pending or adjudged CERCLA claim.

. Thus, we reject Aviall's argument that Congress would have used the words "may only” if it had intended to create an exclusive cause of action. It has long been recognized that the word "may" can mean "shall” or "must ... especially] in deeds, contracts, and statutes.” Webster Third New International Dictionary 1396 (3d ed. 1993).

. The dissenting opinion argues that our reading of the statute is "contorted” because we acknowledge that a federal abatement order under § 106 can trigger the right of contribution under § 113(f)(1), which allows contributions "during or following any civil action under section 9606 [§ 106] of this title or under section 9607(a) [§ 107(a)] of this title.” 42 U.S.C. § 9613(f)(1) (emphasis added). The dissent states that the word "action” usually refers to "lawsuits,” and thus cannot include a federal abatement order. The language and structure of the statute suggest that the definition of the word “action” under § 113(f)(1) includes abatement orders. The contribution provision explicitly refers to § 106, which is entitled "Abatement actions." Under this heading of "Abatement actions,” the section allows the President to "issu[e] such orders as may be necessary to protect public health and welfare and environment,” and provides that the government can enforce these orders in court if a party refuses to comply with them. 42 U.S.C. § 9606(a), (b).

. We note that while some district courts agree that a party filing a § 113(f)(1) action requires a prior or pending § 106 or § 107(a) claim against it, they add that a party who does not face such a claim can at least ask for a declaratory judgment in the event that it is found liable under CERCLA. See Rockwell, 702 F.Supp. 1384 (N.D.Ill.1988); Ameritrust Co. Nat’l Assoc. v. The Lamson & Sessions Co., No. 1:92CV0087, 1992 WL 738774 (N.D.Ohio May 21, 1992); Alloy Briquetting Corp. v. Niagara Vest, Inc., 756 F.Supp. 713 (W.D.N.Y. 1991).

. The statute of limitations for a § 107(a) claim is three years, while it is six years for § 113(f)(1). The statute provides three triggering events for a § 113(f)(1) claim: a prior judgment, an administrative order, or a judi-daily approved settlement. None of the triggering events occurred in Conoco/Vista's case. The court thus addressed which statute of limitations applies in these “gap” cases.

. For the same reason, we reject Aviall’s argument that the Seventh Circuit in PMC, 151 F.3d at 610, implicitly overruled Estes, 16 F.Supp.2d at 983, which held that a § 113(f)(1) suit is invalid without a § 106 or § 107(a) action. In PMC, one party cleaned up the sites at the behest of the state agency and then sought contribution, but the opposing party never raised or disputed whether such contribution actions were permissible.